In 1928 California voters approved what is now Article X, section 2 of the California Constitution and established the bedrock principle of California water law that “the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare.”
In California Fish and Game Code section 5937, the Legislature has directed that the owner of a dam “shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.” In some circumstances the flows needed to keep fish below a dam in “good condition” may significantly diminish water supplies available for other beneficial uses such as irrigation. This poses the question of whether a court asked to enforce the mandate of section 5937 in a particular circumstance must consider whether such a use of water is reasonable.
Yes, it must, held the Court of Appeal in Bring Back the Kern v. City of Bakersfield (April 2, 2025, F087487) ___ Cal.App.5th ___ [2025 WL 98443]. In that case plaintiffs sought a preliminary injunction to require releases from a dam on Kern River sufficient to keep fish in good condition. In granting a preliminary injunction, the trial court concluded that it was foreclosed from considering the reasonableness of the flows required by section 5937, regardless of the impact on competing uses of the water. The Court of Appeal found this was in error. It explained that “a court must always consider reasonableness whenever it would direct or adjudicate a particular use of water, even when applying statutes that do not expressly incorporate a reasonableness determination. . . . Unreasonable or non-beneficial uses of water are never permitted under the Constitution, even if a statute would otherwise require it.”
While it might seem obvious that the application of a statute must conform to the California Constitution, the respondents and amici, including the California Attorney General's Office, argued that section 5937 is the Legislature's determination that such use is reasonable. Article X, section 2 provides “it shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.” The Court of Appeal acknowledged that “the Legislature has a central role to play in how water is used in the state” and “that the Legislature is empowered to enact statutes consistent with section 2.” But it further found that “where plaintiffs, amici and the trial court err is in concluding that because section 5937 reflects the Legislature's view of reasonableness, it is the only relevant manifestation of section 2's reasonableness principle in this case.” Because Article X, section 2 is expressly “self-executing,” the trial court was bound to consider it alongside section 5937. The “point is that no particular use of water is per se reasonable in all circumstances, and therefore reasonableness must always be evaluated before a court orders any particular water use.”
The Court of Appeal reversed the trial court's orders, granting and implementing the preliminary injunction. It remanded the case for further proceedings consistent with its rulings while expressing no view on whether the injunction would meet the requirements of Article X, section 2. In future proceedings, the trial court will be required to consider not only what flows may be required to maintain fish in good condition but also whether that use of water is reasonable given the impact on competing beneficial uses.
This decision should help put to rest arguments that section 5937 mandates the use of water to achieve good conditions for fish regardless of the impacts on other beneficial uses. It is a reaffirmation of the profound directive in Article X, section 2 that “the water resources of the State be put to beneficial use to the fullest extent of which they are capable” and “in the interest of the people and for the public welfare.”
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