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July 14, 2021  |  Written by Aaron A. Ferguson, Ellen M. Simmons

Lawsuit Will Test Application of Requirement That a County Consider Public Trust Resources in Permitting Groundwater Extraction

Last month, California Coastkeeper Alliance (Coastkeeper) filed suit seeking to enjoin Sonoma County from issuing groundwater well permits until it adopts a program to consider and protect public trust resources in the Russian River watershed.  This case is the first of its kind to attempt to enforce the holding of Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 848, in which the Third District Court of Appeal held that the County of Siskiyou, when issuing groundwater well permits, is obligated to apply the public trust doctrine by considering whether groundwater pumping could adversely impact the Scott River, a navigable water.

Considering the limited flows in navigable waters and use of groundwater wells to supplement reduced supplies, the extent to which counties must further condition groundwater extraction will become an increasingly important issue.

Environmental Law Foundation v. State Water Resources Control Board (2018)

The public trust doctrine is based on the principle that the public has a right to the use of navigable waters without obstruction or interference by private parties.  While groundwater does not qualify as navigable, the court in Environmental Law Foundation found that groundwater extraction may injure public trust resources when it adversely impacts a navigable water.  The court subsequently concluded that the public trust doctrine could coexist with the Sustainable Groundwater Management Act (SGMA), given that SGMA was not sufficiently comprehensive to preempt the common law.  In effect, Environmental Law Foundation upheld the County of Siskiyou’s obligation to apply the public trust doctrine when issuing groundwater well permits when the groundwater extraction threatens to impact public trust uses of the Scott River, a navigable water.  This holding from Environmental Law Foundation has not been tested in subsequent proceedings.

California Coastkeeper Alliance v. County of Sonoma

Coastkeeper’s legal claims rely on the application of Environmental Law Foundation’s holding that a county must consider the impacts of new wells when issuing well permits.  The petition sets forth two causes of action:  (1) Sonoma County failed to comply with its duty to consider adverse effects to public trust resources and uses when issuing water well permits, and (2) Sonoma County failed to comply with the public trust duty to prevent harm to public trust resources and uses where feasible.

Coastkeeper alleges that Sonoma County’s groundwater well permit issuance requirements do not reference or consider public trust resources or uses.  Further, it claims that there is no indication in the County’s files, application materials, or policies that the public trust was considered when issuing 404 groundwater well permits between the decision in Environmental Law Foundation in August 2018 and August 2020.  In particular, Coastkeeper’s petition posits that agricultural and rural residential groundwater wells significantly reduce flows in the Russian River and threaten federally-listed endangered species, including the Coho salmon, California tiger salamanders, and California freshwater shrimp.

The Coastkeeper proceedings will provide valuable insight into the application of the key holdings in Environmental Law Foundation in challenges against counties that have not explicitly included consideration of the public trust doctrine in permitting groundwater wells.  This will be particularly important given the current drought conditions in the State of California.  Considering the limited flows in navigable waters and use of groundwater wells to supplement reduced supplies, the extent to which counties must further condition groundwater extraction will become an increasingly important issue.

For more information, please contact Ellen M. Simmons at esimmons@somachlaw.com or Aaron A. Ferguson at aferguson@somachlaw.com.

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