California Rushes In—Keeping Water Instream for Fisheries Without Federal Law

This Article examines the ways that federal law and federal agencies currently provide a legal basis to keep water instream for California fisheries, and the ways that California water law may be in a position to fill the regulatory gap that may be left if federal water law and federal agencies recede. Following the introduction, Part I of the Article identifies the different ways that instream flow affects California fisheries. Part II then surveys federal laws and federal agencies that have traditionally supported efforts to keep water instream for California fisheries. In Part III, the Article presents examples of how the scope of federal laws affecting instream flow may be reduced by the administration of Donald Trump and the new Congress, and discusses the California laws and California agencies that may be increasingly relied upon to secure instream flows for California fisheries in the event this reduced scope of federal law occurs. Using H.R. 23 (otherwise known as the Gaining Responsibility on Water Act of 2017) as a focal point, Part IV then assesses proposed Congressional legislation to limit the application of California water law, the response of the California Attorney General to this proposed legislation, and a July 2017 California Supreme Court decision that may shed light on whether this proposed legislation, if enacted, is likely to survive a legal challenge. The last Part then notes how the federalism issues raised by H.R. 23 and the potential roles for California law to maintain instream flow for fisheries relate to the existing legal scholarship distinguishing federal ceilings and federal floors in the natural resource field and to proposals for a new progressive federalism in response to the November 2016 election results. Although the main focus of this Article is on California fisheries, California water law and California water agencies, much of the analysis set forth may also be pertinent to other states considering their options for keeping water instream under the new President and new Congress. By studying California’s response, other states may be able to develop their own strategies for effectively deploying state law and state agencies to maintain instream flow for fisheries regardless of what happens at the federal level in the coming years