By Max Gomberg, C-WIN Senior Policy Advisor
If there is a single overriding principle that defines the consumption of water in California, it is the legal definition of “waste and unreasonable use.” This concept is foundational to the entire body of laws, rules and policies that determine the use of water in California; and even though it is honored in the breach more than the observance, it remains a central means for safeguarding equitable distribution of water in the state.
Avoiding waste and unreasonable use, in fact, is mandated by the California Constitution. Article X, Section 2 of the Constitution declares water rights are privileges granted by the state to use water—not property rights. They come with the caveat that such use can only be applied to “reasonable and beneficial” uses. This means that the reasonable and beneficial metric serves as an overarching constraint to all uses and diversions.
Naturally, there must be a “decider” to determine if water rights meet these criteria—and that authority is invested in the State Water Resources Control Board (SWRCB), the legislature, and the courts. The SWRCB can intervene directly if it determines that an existing or proposed water right wastes water or employs water for an unreasonable purpose. The board’s decisions form state policy, but they are also subject to judicial challenge. The legislature can pass laws that specify allowable uses of water.
The definition of reasonable use, however, is not static. It can and does shift depending on changing hydrologic conditions such as drought, exigent social needs, new technologies, and evolving understanding of the environmental impacts of water diversions. Thus, a use that was considered “reasonable” in the early 20th Century—say, dewatering an entire salmon-bearing river to irrigate a vast swath of cropland—would not be considered reasonable today.
But while circumstances dictating waste and unreasonable use may evolve over time, the essential concept is immutable, constituting a test that all water users must pass; there can be no exceptions under the California Constitution. The waste and unreasonable use benchmark requires an ongoing assessment of water use and rights to ensure individual water consumption does not violate the public interest; water is a public trust resource, and its distribution cannot be commandeered by individuals, corporations, or organized interest groups.
The waste and unreasonable use doctrine is thus constitutionally and legally powerful; in theory, water rights holders and other water users (i.e. groundwater pumpers) must conform to it in both principle and practice. Nevertheless, it is vulnerable to political pressure, and its application can be spotty and irregular. This is because it is not routinely invoked when evaluating, granting or renewing water rights or groundwater pumping allowances. Rather, its enforcement typically is in response to legal action or administrative petitions.
The people who wrote the California Constitution were aware that the economic and civil success of the state depended on fair and sustainable access to water. To them, “waste and unreasonable use” was code for the inequitable seizure of a public trust resource by rich and powerful interests. Their words are literally the law—but they are also a warning to posterity. We need to heed them.
Note: The views and opinions expressed in this commentary are those of the author and do not necessarily reflect the official policy or position of Maven’s Notebook.
Max Gomberg is a senior policy advisor and board member for the California Water Impact Network and the former Climate and Conservation Manager for the State Water Resources Control Board. He is an expert in state and federal water policy and has focused on equitable policies targeting affordability and cost allocation.
The California Water Impact Network is a state-wide organization that advocates for the equitable and sustainable use of California’s freshwater resources for all Californians.
C-WIN: Waste and unreasonable use: The overriding doctrine for California water law
By Max Gomberg, C-WIN Senior Policy Advisor
If there is a single overriding principle that defines the consumption of water in California, it is the legal definition of “waste and unreasonable use.” This concept is foundational to the entire body of laws, rules and policies that determine the use of water in California; and even though it is honored in the breach more than the observance, it remains a central means for safeguarding equitable distribution of water in the state.
Avoiding waste and unreasonable use, in fact, is mandated by the California Constitution. Article X, Section 2 of the Constitution declares water rights are privileges granted by the state to use water—not property rights. They come with the caveat that such use can only be applied to “reasonable and beneficial” uses. This means that the reasonable and beneficial metric serves as an overarching constraint to all uses and diversions.
Naturally, there must be a “decider” to determine if water rights meet these criteria—and that authority is invested in the State Water Resources Control Board (SWRCB), the legislature, and the courts. The SWRCB can intervene directly if it determines that an existing or proposed water right wastes water or employs water for an unreasonable purpose. The board’s decisions form state policy, but they are also subject to judicial challenge. The legislature can pass laws that specify allowable uses of water.
The definition of reasonable use, however, is not static. It can and does shift depending on changing hydrologic conditions such as drought, exigent social needs, new technologies, and evolving understanding of the environmental impacts of water diversions. Thus, a use that was considered “reasonable” in the early 20th Century—say, dewatering an entire salmon-bearing river to irrigate a vast swath of cropland—would not be considered reasonable today.
But while circumstances dictating waste and unreasonable use may evolve over time, the essential concept is immutable, constituting a test that all water users must pass; there can be no exceptions under the California Constitution. The waste and unreasonable use benchmark requires an ongoing assessment of water use and rights to ensure individual water consumption does not violate the public interest; water is a public trust resource, and its distribution cannot be commandeered by individuals, corporations, or organized interest groups.
The waste and unreasonable use doctrine is thus constitutionally and legally powerful; in theory, water rights holders and other water users (i.e. groundwater pumpers) must conform to it in both principle and practice. Nevertheless, it is vulnerable to political pressure, and its application can be spotty and irregular. This is because it is not routinely invoked when evaluating, granting or renewing water rights or groundwater pumping allowances. Rather, its enforcement typically is in response to legal action or administrative petitions.
The people who wrote the California Constitution were aware that the economic and civil success of the state depended on fair and sustainable access to water. To them, “waste and unreasonable use” was code for the inequitable seizure of a public trust resource by rich and powerful interests. Their words are literally the law—but they are also a warning to posterity. We need to heed them.
Note: The views and opinions expressed in this commentary are those of the author and do not necessarily reflect the official policy or position of Maven’s Notebook.
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