This text is taken from Courrier de la planète. To subscribe, click here.
Water law in California is a legal maze, with this natural resource becoming increasingly scarce in the state in the wake of climate change. How can we ensure the survival of waterways in such a context? Adam Keats, a water law attorney in San Francisco, has made it his hobbyhorse.
On a Friday in June, The Duty meets Adam Keats in his office, a small space in a century-old building in the heart of San Francisco’s Mission District. This part of the neighborhood is sunny, although the sky is overcast just a few blocks away. “That’s because of the city’s hills,” which push the fog coming off the Pacific Ocean to either side of the area, the lawyer explains.
A Boston native, Adam Keats chose California to pursue law school in the early 1990s “because it was at the forefront of environmental protection,” says Keats, who has been interested in the cause since his youth. Although he was initially drawn to civil rights, he found a path in environmental law—specifically, water law in the Golden State.
“The right to water [en Californie] “is a very closed circle of preachers,” made up of lawyers from public entities and private companies, Mr. Keats explains. “These people think they know everything about the field and don’t want people to understand their language. They want to control the discourse and the meaning that is given to it, its interpretation.”
In California, there’s how water should be managed, and then there’s how water is actually managed.
Embedding himself in this secretive guild is the very basis of Mr. Keats’s work: mastering this law—and all its complex jargon—he uses it to work with environmental organizations to protect California’s waterways from abuse. His cases stretch from the Sacramento Delta to the southern tip of California’s Central Valley.
In his 20 years of experience, his work has earned him the title of “Super Lawyer” of Northern California in 2022, 2023 and 2024, awarded by the magazine of the same name, as well as that of “Lawyer of the Year” 2016 in the state, awarded by the California Lawyer Magazine and the Daily Journal.
Water law, a judicial labyrinth
“In California, there’s how water should be managed, and then there’s how water is actually managed,” the lawyer said. In other words, water is viewed primarily by the government and the business community as a commodity that can be sold between parties.
But, on the other hand, the oldest legal principles of the common law California states designate it as an “element essential to life” that the state has a responsibility to protect. Under the public trust doctrine (public trust doctrinein English), natural resources belong to everyone and are under the care of the State, which therefore has the duty to ensure universal access and protection.
This vision of state responsibility has, however, been gradually obscured, explains the lawyer. With industrialization and the growing demand for water from agricultural and urban areas, the structure of water law in California has evolved to be based on two main principles: riparian water rights and water rights by appropriation.
The former allow landowners adjacent to a watercourse to use that water on their property, while the latter grant ownership of the water to parties who redirect it (through dams or reservoirs) for later use. Essentially, appropriation water rights operate on a first-come, first-served basis: whoever is first to claim water at a location gets the rights for future years. Riparian rights, however, take precedence over riparian rights.
This complex system has, however, been contested since at least the 1970s and the rise of the environmentalist movement. According to these environmentalists, water protection should be seen “not as a means of perpetuating trade or fishing for economic gain, but as a necessity for the protection of human life and nature in general,” summarizes Adam Keats.
Read other texts from “Le Devoir” in California
The “law of the river”
During our visit, he tells the Duty of one of his files, which concerns the Kern River. The waterway, fed by snow from Mount Whitney, flows through the city of Bakersfield, located northeast of Los Angeles. Its course has been changed many times, and a portion of it through the city has been dry for decades.
But in the fall of 2023, a preliminary injunction stopped the diversion of the Kern River, caused by six dams operated by the City of Bakersfield. Keats and his clients, a coalition of local environmental groups, argued, among other things, that the diverted water was necessary for the vitality of the river’s marine life.
“What I find good is that the Court’s decision appeals precisely to this notion of the doctrine of public trust,” which refers to the State’s responsibility towards nature, Mr. Keats welcomes.
Because in order to ensure the survival of fish in the Kern River, the Kern County Superior Court recognized that Bakersfield had to agree to allow water to flow unobstructed by city dams. For the first time in decades, water was allowed to continue flowing into the Kern River, according to the attorney.
Of course, this decision has been heavily contested by several local water utilities, as well as the City of Bakersfield itself. “They keep telling us that we don’t understand this, that there are over a century of contracts, lawsuits and court decisions that say who can and can’t use the water and how to use it. And they call it the ‘law of the river’!”
River law or not, the City of Bakersfield’s responsibility to nature trumps all else, the court ruled. “That’s what we’re trying to make them understand. None of that matters. All of those interests are secondary to the obligation to protect our natural resources,” Keats said.
This report was financed with the support of the Transat International Journalism Fund-The Duty.