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Golden Gate University Environmental Law Journal

Authors

Clifford T. Lee

Abstract

The struggle between California’s water plentiful north and the water deficient south has marked water conflict in the state for the last century. This struggle has played out in repeated disputes over the operation of the federal Central Valley Project (“CVP”) and the California State Water Project (“SWP”), the two inter-basin water conveyance facilities that deliver water through-out the state. Commencing in the 1920’s and 30’s with the enactment of California’s area of origin statutes and extending in more recent times to federal and state environmental laws, a complex set of legal requirements constrain the CVP and the SWP’s ability to deliver water to the projects’ agricultural and municipal users.

Doubts about the efficacy of these requirements to achieve their goals have been long-standing. Former California state senator Peter Behr’s remark that “[y]ou can’t contain a thirsty beast in a paper cage” reflects the skepticism held by many that the rule of law cannot effectively constrain project operations in a water-short state such as California.

This article will address one sub-set of these legal requirements: the historic requirement that federal reclamation projects such as the CVP defer to state law relating to the control, appropriation, use, or distribution of water as set forth in section 8 of the federal Reclamation Act of 1902. This article will discuss: (1) the origin of the federal reclamation law principle of deference to state water law and its inclusion in the Reclamation Act of 1902, (2) the application of the deference principle in California to the CVP, (3) the rise of federal and state endangered species laws as constraints on the CVP and SWP’s use of water, and (4) the implications of the deference principle as to the question of whether California’s endangered species law applies to the CVP.

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