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July 17, 2014  |  Written by Aaron A. Ferguson and Andrew M. Hitchings

Sacramento Superior Court Rules That the Public Trust Doctrine Can Apply to Groundwater Extractions That Harm Navigable Waters

On July 14, 2014, the Sacramento Superior Court issued a ruling that the public trust doctrine protects navigable waters from harm caused by extraction of groundwater so connected to a navigable water that its extraction adversely affects public trust uses.  Environmental Law Foundation, et al. v. State Water Resources Control Bd., et al., Case No. 34-2010-80000583, July 14, 2014.  The court also concluded that the Respondent County of Siskiyou (County), as a subdivision of the State, is required to consider the public trust when it issues groundwater well drilling permits.  These rulings were made only at the pleadings stage of this case, and the court emphasized that the Petitioners must still prove their allegations to prevail on the merits.  The court confirmed that its ruling “does not dispose of this case; it simply allows the case to proceed beyond the pleadings stage.”  Nevertheless, the ruling contains a more expansive interpretation of the public trust doctrine than courts have offered in the past.

Background

This litigation concerns flows in the Scott River, which is located in Siskiyou County.  The Environmental Law Foundation (Petitioners) assert that Scott River flows have decreased over the past two decades because extractions of groundwater hydrologically connected to the Scott River have directly reduced stream flow.  The Petitioners allege that the reduction in flow has harmed the Scott River’s fish populations and its navigability.  The Petitioners claim that the County has an affirmative obligation to address the impact that groundwater production has on Scott River flows because the County is responsible for permitting groundwater wells.  The Petitioners further allege that the County must comply with the public trust doctrine when issuing such permits.

Court’s Ruling

Under the public trust doctrine, the State of California owns all navigable waterways within its borders, in the sense that it holds title as trustee of a public trust for the benefit of the People of California.  The public trust imposes fiduciary-like duties on the State of California that require it to administer the trust so the public may use navigable waters for navigation, commerce, and fishing, and also to protect environmental uses of navigable waters.  The trust obligation is not absolute.  The State of California must consider the public trust when allocating water resources, and preserve uses whenever feasible.  National Audubon Society v. Superior Court(1983) 33 Cal.3d 419, 446 (National Audubon).  The California Supreme Court, in National Audubon, found that the public trust doctrine applies to extractions of water from non-navigable surface streams that flow into a navigable water body.

Here, relying on National Audubon, the Sacramento Superior Court found that extractions of groundwater are similar to extractions of non-navigable surface streams to the extent that both have the potential to decrease flow of navigable waters and harm public trust uses.  On this reasoning, the court concluded that the public trust doctrine protects navigable waters from harm caused by groundwater extractions where the groundwater is so connected to the navigable water that its extraction adversely affects public trust uses.  The court was careful to clarify that it did not find that groundwater itself is protected by the public trust doctrine, primarily because groundwater is not navigable.

The Sacramento Superior Court also addressed a second issue – i.e., whether the public trust doctrine imposes a specific duty on the County with respect to well permitting.  The County argued that even if the public trust applies to extraction of groundwater, it imposes no specific duty on the County.  The court found that because the water rights system and public trust doctrine co-exist, the Water Code (specifically, the Groundwater Management Act) does not preclude the County from applying the public trust doctrine.  The court also found that, while the public trust doctrine typically applies to the State of California, it also applies to the County, as a subdivision of the state.  On this second issue, the court held that the County, as a legal subdivision of the State, has an affirmative duty to consider the public trust when it issues permits to appropriate groundwater.  The court did note, however, that while the County may be required to exercise its discretion in considering the public trust, the County will not be compelled to exercise its discretion in any particular manner.  The court also noted that the public trust doctrine does not prohibit the permitting of actions that harm public trust uses.

Conclusion

While the court interpreted the public trust doctrine more broadly than courts have in the past, it is important to note that this is a superior court ruling.  Therefore, this ruling is not binding precedent on other cases.  Also, the court’s ruling was made at a preliminary stage in the litigation.  To prevail, the Petitioners still must prove that the Scott River is navigable and that groundwater extractions are adversely affecting public trust uses in the Scott River.  Finally, the court carefully limited its ruling by noting that it did not hold that groundwater itself is protected by the public trust doctrine.

For additional information please contact Aaron Ferguson (aferguson@somachlaw.com) or Andrew Hitchings (ahitchings@somachlaw.com).

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