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UC Law Environmental Journal

Molly Greene

Abstract

Due to a history of violence, dispossession, and racism, Native American tribes in California face structural disadvantages and inequities with respect to water rights. At the same time, tribes lack meaningful legal remedies to gain access to the water resources necessary to maintain their ways of life. One key issue is that California water agencies traditionally did not consider tribal water uses when implementing water quality control laws, leaving such uses unprotected. For years, tribes have urged the State to fill in these gaps in the law by adopting tribal beneficial uses (“TBUs”), which would protect tribal water uses, such as subsistence and cultural uses, through heightened water quality objectives. In recent years, state agencies have taken initial steps toward implementing TBUs in response to this advocacy.

This Article examines the Lahontan Regional Water Quality Control Board’s Mono Basin Project, one of the state’s first TBU implementation projects. Mono Lake, home of Native tribes like the Kootzaduka’a since time immemorial, has long been at the center of an intense debate about balancing the protection of tribal water uses against the need to divert water to the state’s more densely populated and water-scarce regions. Since the mid-1900s, diversions from the Mono Basin to Los Angeles have substantially lowered Mono Lake’s water level, leading to adverse ecological impacts and threatening the ability of the Kootzaduka’a people to maintain their traditional subsistence and cultural practices.

As one of the earliest TBU projects in California, the Mono Basin Project can provide crucial insight into both the benefits and potential shortfalls of TBUs as a mechanism for protecting tribal water uses. This Article argues that despite the Mono Basin Project’s apparent procedural justice, the project reveals key limitations to using water quality law as the primary mechanism for addressing inequities faced by tribes with respect to water. First, the project raises the issue of constraints imposed by water rights, which commonly conflict with water quality control implementation and, in the Mono Basin context, may significantly limit the effectiveness of TBUs at increasing Mono Lake’s elevation. Second, at a broader, statewide level, the slowness of the TBU process thus far raises concerns about the effectiveness of the state’s current TBU regime. The Article argues that to secure needed protections for tribes within a meaningful timeframe, the current discretionary system should be replaced by a statutory directive for TBU implementation.

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