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When It Comes To Water, Why L.A. Is Better Off Than Texas

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Posted every Monday, the Laws That Shaped L.A. spotlights regulations that have played a significant role in the development of contemporary Los Angeles. These laws - as nominated and explained each week by a locally-based expert - may be civil or criminal, and they may have been put into practice by city, county, state, federal or even international authority

This Week's Law That Shaped L.A."¨
Law: Porter-Cologne Water Quality Act
Year: 1969
Jurisdiction: California
Nominated by: Arthur F. McEvoy

In 1969, California passed a law that helped keep rivers, lakes and streams nationwide healthy; offered the parched Owens Valley, by the eastern Sierra Nevadas, a chance at new life -- or at least an afterlife; and led to Angelenos being permitted to water their lawns only on specific days, at specific times, and for a limited duration.

During the past forty-plus years, all of the above and more have cascaded like H20 from Newhall Pass, thanks in part to the Porter-Cologne Water Quality Act.

This innocuous sounding piece of legislation -- the first two words seem like something a Pullman Car passenger would request -- might even have kept California together as a united state. It is not a great leap to imagine water being the casus belli of any Smog Town vs. Fog Town vs. Bread Basket state civil war.

Professor Arthur F. McEvoy nominates Porter-Cologne as a "Law That Shaped L.A." McEvoy is Southwestern Law School's associate dean for research and Paul E. Treusch Professor of Law. Please note that the hyperbole of the immediately previous paragraph comes from your columnist and not the professor.

McEvoy's field of research is legal history and environmental law. The professor says it's a privilege to teach these issues from here inside the City of Angels. Why? "Because there's no Los Angeles without a coherent system of water rights," McEvoy says.

That coherent system flows in great part from Porter-Cologne. "This particular statute is kind of a centerpiece," McEvoy says. "It's the umbrella under which California manages not only its water rights -- that is to say, who gets to use the water -- but also the water quality."

The Los Angeles Aqueduct. Photo courtesy The Los Angeles Public Library
The Los Angeles Aqueduct. Photo courtesy The Los Angeles Public Library

Porter-Cologne, among other achievements, took the previously disparate coordination of and jurisdiction and enforcement over water use and water quality and confirmed that they would instead be part of a single entity: the State Water Resources Control Board.

This matters, McEvoy says, because of the nature of the life-giving liquid itself. "Water is an integrated system, right?" the professor says. "It ties everything together, and to separate the rights to use water from the rights to pollute it doesn't make any sense at all."

This common sense California approach was radical then and remains so today. "Usually, in water law, there are two different authorities, two different jurisdictions," McEvoy says. "In lots of places the federal government does one and the state government does the other."

The first proof of Porter-Cologne's importance came in 1972, when the California law became the basis for the federal Clean Water Act. The Clean Water Act -- passed by Congress, vetoed by then-President Nixon and overridden by Congress -- was part of a suite of environmental actions undertaken at the time; a sibling work was the Clean Air Act, featured here in a recent Laws That Shaped L.A. column.

Since the Gold Rush days -- where every stream diverted meant a potential fortune made -- economics tended to trump other concerns.

"It was sort of everybody for themselves," McEvoy says of water policy history in general. "Whoever had the most power in the legislature or in the state agencies, they got pretty much what they wanted. In the old days that meant agriculture -- and Los Angeles."

Legal challenges to Porter-Cologne were mounted and, with time, surmounted. McEvoy points to a pair of consequential court decisions in the 1980s that cemented (or should we say dammed?) Porter-Cologne in place. Not surprisingly, one case was about agriculture and the other, Los Angeles.

The first case, in 1983, was the National Audubon Society v. The Superior Court of Alpine County. Three years later, was the United States v. State Water Resources Control Board.

The latter, McEvoy says, affirmed Porter-Cologne's rights to "modify people's existing water rights." As in: "To take rights back from people if they had to do so in order to achieve the state's water quality objectives."

This liquid variant of eminent domain -- or better yet, this celebrated example of the public trust doctrine from the state Constitution -- was ostensibly a row over salinity and wildlife-related debates.

But the far greater matter was over control and the universal good. "The issue was whether the State Water Control Board could go to its two biggest users and tell them, 'We have to revise your permits,'" McEvoy says. "And tell them, 'We have to take some water back because we can't achieve these water quality objectives without doing so."

Nobody, the professor says, had ever tried to do that before -- much less so for environmental considerations.

Meanwhile, legions of fans of the otherworldly, tufa-sprouting, Los Angeles-drained Mono Lake already know the back story regarding the other seminal post- Porter-Cologne decision.

"The result of that case," McEvoy says, "was that the state had the authority to limit Los Angeles' draft of those tributary rivers that went into Mono Lake."

Water from the Owens Valley played a hugely important role -- an existential role, even -- in turning 20th century Los Angeles into a modern metropolis. And inversely, led to the parching and other health and economic woes in Owens.

"The water belongs to the people," McEvoy says. "Theoretically, it always did."

But, he and others note, people like the legendary zanjero William Mulholland and the powerful then-Los Angeles Times owners, the Chandler family, and the leadership of the Westlands Water District and the Imperial Irrigation District, et al. put that water-for-all theory to a severe test.

"They could all build up those empires in the early part of the century because when people thought about public policy and the public good, the first thing they thought about was economic development," McEvoy says. "We didn't really understand that there were limits to what you could do."

Enter an infrastructure-building era of state government during the 1950s and 1960s, enter Porter-Cologne, enter the California Supreme Court decision, and, voila, enter a change in attitude and perception regarding water.

"Los Angeles really had to figure out that their supply is not unlimited," McEvoy says of water available in a city that today imports four out of every five gallons used. "So we had to manage. That's the point when L.A. really started to pay attention to its responsibilities for managing its water in an intelligent way."

And how has that gone? "Los Angeles is such a mess," the professor says, speaking again in general of the current times. "But my sense is [the city] actually has one of the most sophisticated water management systems on the planet."

That's a system that includes conservation efforts ("The largest single uncapped source of new water is conservation," McEvoy says) as well as surface water, imported water, wetlands, groundwater and water conservation.

"It's very tightly integrated," McEvoy says. "The miracle is that it works as well as it does."

Of course, there's always another option. If not for Porter-Cologne or some similar statute, McEvoy is asked, what would L.A.'s sibling in the attic, the Owens Valley, be like today? "In a word," he says, "Texas."

He continues: "There's your counter-example. They gave the whole store away so they are having terrible problems now. As bad as it can get here, its not Texas."

To suggest a "Law That Shaped L.A." or otherwise contact the columnist via: arrivalstory [at] gmail [dot] com, or leave a comment at the bottom of this page.

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