Court: Public Trust Doctrine Applies to County Approval of Permits For New Groundwater Wells Affecting Navigable Stream

July 18, 2014 | Bulletin No. 1129526.1

The public trust doctrine applies to groundwater that is hydrologically connected to navigable surface streams, according to a July 14, 2014, Sacramento Superior Court ruling in a case challenging Siskiyou County’s approval of well drilling permits.  (Environmental Law Foundation ("ELF") v. State Water Resources Control Board, County of Sacramento Superior Court, Case No. 34-2010-80000583, "Order after Hearing on Cross Motions for Judgment on the Pleadings" filed July 15, 2014).

If the trial court ruling stands, the County would have to decide how to consider fisheries, recreation and other public trust values when asked to issue a permit authorizing a new well whose production would affect Scott River trust values.  Under the public trust doctrine, impacts to fisheries and recreation would not automatically prohibit well permit approvals, so long as the County weighs the impacts against the benefits of approving the well (e.g., domestic, municipal, industrial, agricultural water uses).

The ruling comes as California turns increasingly to groundwater to replace dwindling surface water supplies depleted by a three-year drought.  Availability of surface water supplies for domestic, municipal, industrial and agricultural uses also is limited by environmental restrictions, including the public trust doctrine.  The potential effect of the ruling on efforts to enact state legislation requiring more robust groundwater management is unclear.

The ruling came on cross-motions for judgment on the pleadings in a case brought by Petitioners Environmental Law Foundation, Pacific Coast Federation of Fisherman’s Associations and the Institute for Fisheries Resources.  The lawsuit requests a writ of mandate directing Siskiyou County to stop issuing well drilling permits until it complies with duties under the public trust doctrine.  Although the court ruled the public trust doctrine applies to permit approvals affecting Scott River flows, the ruling does not determine that any actual groundwater production violates the public trust by harming trust values in the Scott River.

Surface water rights to the Scott River, and rights to groundwater that is interconnected with the river, were adjudicated by a 1980 Siskiyou County Superior Court decree.  That decree defined a “zone of adjudication” where the decree applies.  To avoid potential conflict with the decree, the writ petition and ruling target permits for drilling wells outside of that zone.

The court ruled that the public trust applies to navigable waters and assumes the Scott River is a navigable waterway.  The public trust protects a range of interests, including navigation, recreation, and environmental uses of navigable waters.  In National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419, the state Supreme Court held the state is obligated “to consider the public trust when allocating water resources, and to preserve trust uses whenever feasible.”  As the Court held:

"The population and economy of this state depend upon the appropriation of vast quantities of water for uses unrelated to instream trust values . . . .  [I]t would be disingenuous to hold that such appropriations are and always have been improper to the extent that they harm public trust uses, and can be justified only upon theories of reliance or estoppel."

National Audubon Society, 33 Cal.3d at 446.

In the Siskiyou County case brought by the Environmental Law Foundation, the court found that the County is a subdivision of the state which shares responsibility to administer the public trust.  The court ruled that the County is not obligated to manage groundwater generally, but the County “does not have discretion to ignore its duties under the public trust doctrine” when approving well drilling permits that would affect navigable waters.

The application of the public trust to diversions from non-navigable tributaries to navigable waters was established in National Audubon Society, and the court here found that same reasoning extends to extraction of groundwater that harms public trust uses of a navigable waterway.  The court “does not find groundwater itself is a resource protected by the public trust,” as groundwater itself is not navigable.  Rather, the court ruled the public trust doctrine applies “where the groundwater is so connected to the navigable water that its extraction adversely affects public trust uses.”

The court’s ruling on cross-motions for judgment on the pleadings resolved purely legal issues raised in several of the County's affirmative defenses.  Fact-finding proceedings would be required to determine whether Scott River public trust values were actually affected by well production occurring outside the “zone of adjudication.”

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Eric N. Robinson or Stanley C. Powell | 916.321.4500