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Redefining Reasonable Use: Scott Slater and Antonio Rossmann
How I See It - by Scott Slater
The doctrine of "reasonable and beneficial use" is generally understood throughout the West as a "means-ends" test that obligates an authorized user to apply water for a "beneficial use" in a reasonably efficient manner. Today, however, a different approach is gaining popularity in California. This new view holds that "reasonable use" does not mean "reasonably efficient" as judged by the standard, custom and habit of similarly situated users - it means the "highest and best" or "optimal" use of the water. The difference in approach and effect is substantial.
Currently, an applicant for an appropriative water right must satisfy the State Water Resources Control Board that a proposed use comports with the public interest. However, once the use is approved and initiated, a property right vests in the user to continue the use under reasonable means. Thus, if it is no longer reasonably efficient to engage in furrow irrigation, an individual might be obligated to adjust to drip. For an urban user, installation of low flow toilets and efficient distribution systems might become a minimum standard. A user is not, however, obliged to give up avocado farming so that a school can be built - at least not without compensation.
Conversely advocates of the optimal use approach would make reasonable use a comparative test of relative social utility with the ultimate balancing being done by a judge. In theory, if one segment of society or even one judge, sees one use as more worthy than another, water may be confiscated from one industry and given to another.
Prospective users of a proposed cancer hospital may argue that water for the tobacco farm might be eliminated without compensation. The fact that the specific tobacco farm was the most efficiently irrigated farm in California is not determinative as it would be in most states.
There is nothing in the California Constitution or any reported decision to date that would require "optimal" rather than "reasonably efficient" use. While there are appellate court decisions acknowledging the issue, they have reserved the final word on the subject for a later date. In the interim, litigants fueled by the unresolved issue make competing arguments in lower courts without definitive resolution.
There are large economic and social costs that should give advocates of optimal use pause. First, "optimal use" is not easy to define. Second, it operates at cross purposes with the Governor's Commission recommendations and the California Supreme Court's repeated efforts to enhance certainty in our water rights allocation decisions. Outcomes are not predictable if "optimal social utility" is the test. Third, the optimal use approach leads to an erosion of private property rights and confidence in the trading of water rights. Fourth, and most important in litigious California, potential buyers have less of an incentive to purchase or lease a water right if they can attack the existing user's claim and obtain the water for free.
Lawyers can help their clients by not making such arguments because winning that argument means losing in the end. Clients can also help themselves by questioning a lawyer who advocates a path that by definition leads to a declaration that their own rights are only as good as one judge's interpretation of optimal social utility on any given day.
In the future, legislative direction on how the reasonable and beneficial doctrine use should be applied by the courts and the State Water Resources Control Board may serve to limit opportunties for mischief. The Board itself can provide direction through its water rights decisions. However, in the end, final responsibility may lie with the courts.
How I See It - Antonio Rossmann
The big question that we should be asking is: Who makes the determination of what is reasonable use? If the state water board makes the determination, should the courts defer to that decision if it is supported by substantial evidence, or should the courts render their independent judgment? Since reasonable use is a constitutional standard, it would seem that the latter would apply.
A parallel question arises when a superior court makes the determination: Should the appellate courts reweigh it or just accept the lower court's word if it has some evidentiary support? The practice seems to be that the appellate courts reach their own conclusion on the merits, which is a clear exception to the normal rule of administrative decision-making. But that can be explained for two reasons. One is the unique nature of water in our state and the fact that historically we've always expected our Supreme Court to have the last word on the merits of water conflicts. The second is the fact that "reasonable use" is a constitutional provision, and not a statutory one; as with matters like due process or free speech, we expect the appellate court not to routinely sustain the superior court's (or administrative agency's) conclusions.
One can also argue that reasonable use should reflect popular judgment about where our resources ought to be devoted. If the Legislature were to make a finding that a certain water use is unreasonable, the courts ought either to be bound by that finding or at least defer greatly to it. In general the courts will defer. Yet at the same time if the Legislature made a judgment fifty years ago as opposed to five years ago, and it has never been reconsidered, then the courts through the "reasonable use" doctrine have the means of rendering a contemporary interpretation.
The reasonable use doctrine is California's saving grace. If one has faith in the reasonable use doctrine, part of it is having faith in the judiciary to be the most competent to pass the carefully considered judgment required in these cases.
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