J.D. Candidate (2015), University of San Francisco School of Law
August 4, 2014
In Environmental Law Foundation et al. v. State Water Resources Control Board, 34-2010-800000583, the Superior Court of Sacramento issued a narrow ruling that the public trust doctrine applies to groundwater hydrologically connected to navigable waters. Moreover, the Court determined that county government, as political subdivisions of the State, have a responsibility to consider the public trust in the issuance of well permits that could impact public trust uses.
The Scott River is a navigable waterway in Siskiyou County that has suffered diminished flows over the last twenty years. In 1980, the Siskiyou County Superior Court adjudicated, by decree, the surface waters and hydrologically connected groundwater of the Scott River stream system. The decree created a “zone of adjudication” that prevented new wells from being established within 500 feet of the Scott River. The diminished flows have negatively impacted the river’s fish population, as well as its suitability for recreation. Petitioner Environmental Law Foundation (“ELF”) alleged that ground water pumping is the cause of these diminished flows. Respondent Siskiyou County (“County”) is responsible for issuing groundwater pumping permits. ELF believes that the public trust doctrine requires the County to consider the effect the issuance of such permits have on the Scott River as a public trust resource. Thus ELF sought: (1) a declaration that the groundwater hydrologically connected to surface waters are protected by the public trust doctrine and must be managed with public trust considerations; and (2) a writ or injunction barring issuance of groundwater pump permits by the County beyond the “zone of adjudication” established by the 1980 decree until it considered public trust uses.
In its answer to the petition, the County raised four affirmative defenses: (1) the public trust doctrine does not apply to groundwater; (2) the State Water Resources Control Board (“Board”) has no authority to regulate groundwater under the public trust doctrine; (3) the County is not required to regulate groundwater under the public trust doctrine; and (4) the public trust doctrine does not apply in the instant case because the 1980 Siskiyou County Superior Court adjudicated the groundwater. The court issued a tentative ruling on June 16, 2014.
The Court’s Decision
Application of National Audubon to the instant facts
The Court rejected the County’s defense that the public trust doctrine does not apply to groundwater pumped beyond the Scott River’s zone of adjudication. After reviewing authority (People v. Gold Run D. & M. Co. (1884), 66 Cal. 138 [mining company enjoined from dumping sand and gravel in unnavigable stream that flowed into a navigable thus impairing navigation]; National Audubon v. Superior Court (1983) 33 Cal.3d 419. [diversions from a non-navigable tributary that impaired the navigability of a lake violated public trust doctrine]), the Court found that the extraction of groundwater connected to a navigable body of water is analogous to the diversion or fill of non-navigable tributaries of navigable bodies of water. According to the Court, all three actions inhibit the public trust uses of the navigable bodies of water. To wit:
Although the facts alleged here are different, it is a difference without a legal distinction. National Audubon involved extraction of water from non-navigable surface streams. This case involves extraction of underground water. But the result is allegedly the same — decreasing the flow of navigable waters harming public trust uses.
(Slip Opinion, at p. 8.) Further, responding to County’s contention that the extraction of groundwater is not a diversion, the Court relied on the text of National Audubon: “the public trust doctrine . . . should apply equally to constrain the extraction of water that destroys navigation and other public interests.” (Slip Opinion, at p. 10 [citing National Audubon at p. 436 [emphasis in original]].) Thus, the Court found that the extraction of groundwater, where that groundwater is so interconnected to navigable waters, adversely affects public trust uses.
The Court, however, limited its application of public trust doctrine to groundwater that is interconnected with navigable waters. Groundwater is not a navigable body of water under California law. California, therefore, has no duty to protect groundwater, sans interconnection to a navigable body of water, as a public trust resource.
Duty of the County under the Public Trust Doctrine
The Court dismissed the County’s claim that it was precluded from considering the public trust doctrine in the issuance of groundwater pumps by legislative mandate The County argued that section 10750 et seq. of the Water Code, which authorizes local agencies to adopt groundwater management programs, indicates that the legislature does not require local agencies to adopt groundwater management programs or consider the public trust in actions.
The Court emphasized that National Audubon provides that public trust doctrine is not subsumed by statutory water law and that each sphere co-exists with one another. Relying on Fourth Appellate District jurisprudence (Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166.), the Court found no evidence that the Water Code precludes the County from “applying the public trust doctrine when necessary.” (Slip Opinion, at p. 12 [citing Baldwin].)
Additionally, the Court distinguished the relative levels of discretion that the County has in adopting groundwater management plans versus administering the public trust. The Court opined that the County is a subdivision of the State, and as a subdivision of the State the County has a responsibility for administering the public trust. (Slip Opinion, at p 12 [citing Baldwin, Center for Biological Diversity, Inc. v, FPL Group, Inc. (2008) 166 Cal.App.4th 1349, 1370, fn. 19].) From there, the Court explained that the State, and its subdivisions, may not abdicate its public trust duties. (Id. [Illinois Central v. Illinois (1892) 146 U.S. 387, 452, National Audubon.] Therefore, the County, ruled the Court, had no discretion in considering the public trust with regard to groundwater connected to a navigable body of water.
Finally, the Court rejected the County’s argument that requiring it to consider the public trust when issuing permits would subject such actions to judicial review—supposedly shifting policy-making to the judicial branch. The County based their argument on a footnote from City of Long Beach v. Mansell (1970) 3 Cal.3d 464: “the administration of the trust by the state is committed to the Legislature, and a determination of that branch of government made within the scope of its powers is conclusive….” (Id. at p. 482 fn. 17.) This does not apply, according to the Court, because the issue therein was the legislature’s determination that the public trust tidelands in question were no longer useful for trust purposes. In the Scott River decision, the legislature had not released the Scott River stream system from the public trust. Therefore, judicial review of public trust determinations by the County would not be out-of-bounds.
Interplay between public trust application and the 1980 decree
The Court rejected the County’s argument that compelling regulation would intrude on the 1980 Siskiyou County Superior Court decree. The relief requested, a writ or injunction against the issuance of permits beyond the “zone of adjudication,” specifically excludes those wells adjudicated by the decree. Therefore, the Court dismissed concerns that a judgment on pleadings would intrude on the earlier decree.
Conclusions and Implications
The ruling extends the scope of the public trust doctrine to include groundwater hydrologically connected to navigable waters. Moreover, it asserts that a subdivision of the State must consider the public trust while issuing permits that could impact public trust uses. This constitutes a minor victory for the Environmental Law Foundation, as the organization must still prove the facts alleged in their petition. Still, the ruling has larger implications for the public trust doctrine and its application in other cases.