A recent California Superior Court decision ruled that those who illegally divert water from streams and rivers can be sued because the consequent lack of water downstream, with its resultant problems, constitutes a violation of the public trust.
Among other things, this means governmental entities that are charged with maintaining such resources can also be sued. Environmental groups have most definitely taken note of this ruling and are planning actions.
“This new Superior Court ruling on Monday says that anyone who diverts water must provide enough flow for downstream fish and if they don’t they can be sued by anyone,” said Chris Malan of the Livings Rivers Council in Napa. He said there are at least 286 illegal water diversions in the Napa River watershed and that many of them are by vineyards.
Apparently, the applicable laws have barely been enforced, if not just completely ignored. Such diversions of water can mean that downstream areas dry up during the summer, killing fish and wildlife.
The court’s ruling grew out of a lawsuit against the City of Calistoga for not operating a dam in compliance with state law because it did not let sufficient water pass through a fishway. Calistoga claimed this was the responsibility of a state regulatory agency, the State Water Resource Control Board (SWRCB), not them. The judge disagreed and said the city could be sued, and thus set a new precedent for the entire state.
Until January of this year, the SWRCB had just one inspector for the entire state, a classic example perhaps of how blocking enforcement of regulations is often done by deliberate underfunding and understaffing of the agencies involved. They now have 23 new agents, still probably not enough, but much better than before. Until the ruling, any such water enforcement could only be done by SWRCB. Now they can be bypassed completely and lawsuits brought directly.
This of course will have effect far outside of the Napa River area. The Scott and Shatsa Rivers also can get dry in the summer, with severe effects on the already precarious existence of salmon, notes The Trout Underground, adding that Fish and Game has gone from being comatose to Draconian, with the result that no one quite knows what to do or expect.
Also, another problem is that if diversion from streams is litigated and stopped, then quite possibly some will simply drill wells and pump groundwater out, and that this is also mostly unregulated. Shallow groundwater and surface water are often linked hydrologically, so groundwater pumping could easily affect downstream water flows.
The Calistoga trial starts next month. If the city loses, they could conceivably have to pay millions to repair the alleged damage. But whatever the outcome, the rules of the California water wars have changed dramatically.