Why do some water users object to the state constitution?

In general, the direction of the legislation currently under consideration in the state legislature is encouraging. However, in addition to the positive developments, a remarkable debate is taking place in the legislature today. Some water users and legislators have asked for an amendment to waive the state's constitutional "waste and unreasonable use" requirement with regard to the new water conservation program in the bill.

What gives? Why, in the middle of a water crisis and in a package of water reform legislation, are some arguing to limit the constitutional prohibition against wasting water? Good question.

For those of you not familiar with this provision, the state constitution requires the prevention of "the waste or unreasonable use or unreasonable method of use of water." CA Constitution, Article 10. Water has always been a precious resource in the Golden State and, since statehood, Californians have recognized that there's just not enough to waste. No one believes that a farmer should have the right to dump so much water on a field that it floods his neighbor's home. Or that a city dweller should be able to run their lawn sprinklers 24-7, turning the neighborhood into a swamp. That kind of waste doesn't happen every day, but it's important that the state has the tools to stop water wasters.

Mom and apple pie, right? Apparently not.

Appropriately, Senator Steinberg's bill currently states that "the longstanding constitutional principle of reasonable use and the public trust doctrine shall be the foundation of state water management policy and are particularly important and applicable to the Delta." Why then, would some water users want to waive this requirement?

SB 1-7x would establish a voluntary program based on the Governor's goal of reducing California's per capita water use 20 percent by 2020. It seems that some water users believe that the State Water Resources Control Board, in any possible future case about waste and unreasonable use, should not be able to consider any failure to meet this conservation target - no matter how flagrant the waste of water might be. Although such charges of "waste and unreasonable use" are rare, the State Water Board does rely on this authority, as well as other legal authority, in making many key decisions. A waiver here could have far-reaching and unforeseen consequences. (As a non-lawyer, I won't offer any opinions about the legislature's authority to impose limits on this constitution requirement.)

This proposed amendment is quite remarkable. First, over the past two years, nothing in the conservation bill as originally drafted linked these targets to waste and unreasonable use. But more importantly, suggesting that water reform legislation should waive the constitutional prohibition against waste is like suggesting that a federal free speech bill should waive the First Amendment. These water users don't have a gripe with this bill. They seem to object to the state constitution.

Why the controversy? Some water users seem to believe that they should have the right to use as much water as they want and that no agency, no bill and no court should impose any constraints on that use, not matter how outrageous. The problem is simple - that's not how California's constitution was written. The state's water belongs to the public and state agencies have a constitutional responsibility to prevent waste.

Not surprisingly, this proposal has attracted opposition from legal scholars who understand that California's infrastructure of water laws is built on the foundation of the state's constitution. Everything water users do in California is done within the legal framework that flows from the state constitution, including the prohibition against waste and unreasonable use.

In a state with collapsing fisheries and water short farmers and cities, it's hard to believe that anyone could object to a constitutional prohibition against wasting water. It's also hard to believe that such an argument might hold up this landmark water reform legislation.