Right Doctrine, Wrong Groundwater: The Environmental Law Foundation’s Flawed Attempt To Extend Public-Trust Protection To Groundwater

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Bryan Barnhart
LL.M., McGeorge School of Law, University of the Pacific
J.D., Hastings College of Law
June 26, 2013

In Environmental Law Foundation, et al. v. State Water Resources Control Board, et al., Case No. 34-2010-80000583, three plaintiff organizations (collectively, ELF) claim that California’s Public Trust Doctrine requires the State Water Resources Control Board (Board) and Siskiyou County (County) to regulate groundwater that is hydraulically connected to the navigable Scott River (Scott Groundwater). Although ELF’s legal theory is sound, ELF chose the wrong case to test it. The Scott Groundwater already is subject to public-trust protections that are set forth in an existing Siskiyou County Superior Court Decree. Before it asks another Court to issue a new order based on a novel public-trust theory, ELF should seek better enforcement of the existing Decree.

I. Background.

The Scott River system underwent a statutory adjudication in the 1970’s. The Board quantified and prioritized all rights to water within the system, issued a comprehensive final order, and submitted that order to the Siskiyou County Superior Court for review. In 1980, that Court entered a Decree that the order, and that barred all subsequent assertions of rights to water from the system.

The Scott River system adjudication was unique because the Legislature gave the Board express statutory authority to allocate the Scott Groundwater. See Cal. Water Code § 2500.5. The Board determined that the Scott Groundwater included all groundwater within 500 feet of the Scott River’s surface flows (500-Foot Strip) and allocated the River’s surface flows and regulated pumping of groundwater within the 500-Foot Strip. It did not allocate or restrict pumping of groundwater outside of the 500-Foot Strip. The Court approved the Board’s 500-Foot Strip determination and Scott Groundwater allocations without modification. Although issued three years before National Audubon, the Decree includes many safeguards for fish, wildlife, and the River’s natural flow that are consistent with the Public Trust Doctrine explicated in National Audubon.1

Hand pump well

The Board and the County have limited authority to protect the Scott Groundwater under the current Decree. The Board can ask the Court to modify the Decree, issue a cease and desist order to any violator of the Decree’s terms, and/or refer recalcitrant over-pumpers to California’s Attorney General. While the Decree does not give the County any powers, the County does have independent authority to operate a well-drilling permitting system.

Real Decree-enforcement power rests, however, in the Scott River system’s watermaster. Only the watermaster has legal authority to measure surface-water diversions and groundwater extractions within the 500-Foot Strip and to arrest and criminally prosecute violators of the Decree’s terms. Neither the Board nor the County has direct control over the watermaster’s actions.

ELF alleges that the watermaster is not enforcing the Decree’s public-trust protections. According to ELF’s complaint, over-pumping of groundwater both within and outside of the 500-Foot Strip is causing harm to the Scott River system’s public-trust resources. ELF also claims that the Board’s 500-Foot Strip determination incorrectly excluded groundwater outside of the Strip that is hydraulically interconnected with the Scott River’s surface flows. ELF does not, however, seek enforcement or modification of the Decree’s public-trust protections, nor does it name the watermaster as a defendant. Instead, ELF’s Complaint largely ignores the Decree, and asks the Court to order the County and the Board to implement new Scott Groundwater programs. If successful, ELF’s suit will be the first to extend public-trust protections to groundwater.

II. The Public Trust Doctrine Applies To The Scott Groundwater.

California’s Public Trust Doctrine requires the state to maintain navigable waterways as trustee for the benefit of the people. Generally speaking, the state cannot alienate “its duty to preserve and protect the public’s interest in” public-trust assets.2 As administrator of the public trust, the state’s public-trust authority “extends to the revocation of previously granted rights or to the enforcement of the trust against lands long thought free of the trust.”3

In recent years, the courts have extended trust protection to natural resources (Incidental Trust Assets) that are not themselves public-trust assets, but that are necessary to the preservation of such assets. In National Audubon, for example, the Court held that the Board must protect the non-navigable tributaries that feed the navigable Mono Lake because those tributaries are necessary to the Lake’s continued existence. Such extensions of public-trust protections do not, however, transform Incidental Trust Assets into traditional trust assets, nor does the extension of some public-trust protections entitle an Incidental Trust Asset to all such protections. Instead, the public-trust safeguards that are applied to a particular Incidental Trust Asset are tailored to “the interest for which protection is sought and the manner in which that interest is to be protected.”4 Mono Lake’s tributaries, for example, are entitled only to those public-trust safeguards that are necessary to preserve the Lake — those tributaries are not themselves part of the public trust.5

The Scott Groundwater is not a traditional public-trust asset. The Public Trust Doctrine “has no direct application to groundwater resources,” and groundwater is not susceptible to the traditional public-trust uses of navigation, commerce, and fisheries.6 Because it is essential to maintaining the Scott River’s flows, however, the Scott Groundwater is entitled to limited public trust protection as an Incidental Trust Asset.

National Audubon is instructive here. In that case, “the Division of Water Resources, the predecessor to the [Board], granted the Department of Water and Power of the City of Los Angeles … a permit to appropriate virtually the entire flow” of nonnavigable tributaries that flowed into Mono Lake.7 California’s Supreme Court held that, “regardless of whether the public trust extends for any purposes to the [tributaries] themselves,” the state had “a duty of continuing supervision over the taking and use” of the tributaries’ waters.8 Here, the Scott Groundwater — like the non-navigable tributaries that were at issue in National Audubon — contributes to and helps to regulate the flow as well as water quality within a navigable waterway. The state has “a duty of continuing supervision over the taking and use” of Scott Groundwater, therefore, even though the Scott Groundwater is not itself part of the public trust.9

III. The County And The Board Have Public-Trust Duties Over The Scott Groundwater, But Their Abilities To Comply With These Duties Are Limited.

As subdivisions of the State of California, the Board and the County are bound by the state’s duty to regulate the Scott Groundwater as an Incidental Trust Asset; i.e., to protect the Scott Groundwater to the extent that is necessary to preserve traditional trust assets within the Scott River. The Board’s and the County’s ability to comply with the state’s public-trust obligations are constrained, however, by the powers that they can exercise.

The County’s authority to protect public-trust values in the Scott Groundwater probably is limited to its issuance of well-drilling permits outside of the 500-Foot-Strip. Groundwater-pumping rights within the 500-Foot Strip are governed by the Decree, which “is conclusive as to the rights of all existing claimants upon the [Scott River] stream system lawfully embraced in the determination.”10 The County does not have any authority to monitor pumping inside the 500-Foot Strip, or to enforce or to recommend modifications to the Decree — the Decree vests those powers in the watermaster and the Board.

The County can, on the other hand, regulate Scott Groundwater pumping outside of the 500-Foot Strip. The County could — and probably should — incorporate a public-trust analysis into its permitting process for the drilling of wells outside of the 500-Foot Strip. But it is questionable whether any regulatory system that the County might put in place actually would protect public-trust assets in the Scott River. Because the watermaster is not adequately monitoring or restricting pumping inside the 500-Foot Strip, the County would be hard pressed to determine how much pumping to allow outside of that Strip.

The Board’s direct jurisdiction over the Scott Groundwater also is limited. The Water Code empowered the Board to allocate Scott Groundwater pumping rights during the statutory adjudication that concluded in 1980. Now that the adjudication is over, however, the Board only has water-allocation authority over surface waters, and to “subterranean streams flowing through known and definite channels.”11 Here, there is no allegation or evidence that the Scott Groundwater constitutes a “subterranean stream.” Rather, the Scott Groundwater appears to be percolating groundwater, over which the Board has no water-allocation jurisdiction. It is the Board’s lack of groundwater-allocation authority that distinguishes ELF’s lawsuit from National Audubon. In National Audubon, there was no question that the Board had the power to regulate the tributaries to Mono Lake. The issue was whether the Board had a duty to regulate those tributaries to protect Mono Lake’s public-trust assets. Here, in contrast, even if the Board’s public-trust duties extend to the Scott Groundwater, its limited regulatory authority over that groundwater renders those duties largely irrelevant.

Although the Board has some powers under the Decree, furthermore, those powers are not those that ELF Complaint demands that the Board exercise. ELF does not seek an order requiring the Board to investigate potentially necessary modifications to the Decree, or to refer violators of the Decree’s pumping restrictions to the Attorney General to seek court intervention. Instead, ELF’s Complaint asks that the Court require the Board to exercise powers that are vested in the watermaster — i.e., to “manage, monitor or limit extractions of groundwater interconnected with the Scott River.”

IV. ELF Should Add The Watermaster As A Defendant, And Seek Modification Of The Decree To Protect Public-Trust Interests In The Scott Groundwater.

Unlike the County or the Board, the watermaster has the power to restrict pumping of Scott Groundwater both inside and outside of the 500-Foot Strip. The Court charged the watermaster with enforcing the Decree’s allocations of all surface water and groundwater within the Scott River system. Furthermore, although the Decree states that “[a]dditional wells or sumps may be constructed” outside of the 500-Foot Strip, it does not allow operators of these wells or sumps to make off with water that the Decree expressly allocates. Nor does the Decree exempt wells that are outside of the 500-Foot Strip from the watermaster’s jurisdiction. If over-pumping outside of the 500-Foot Strip is draining water that the Decree allocates to protect public-trust assets, then the most efficient way to stop that over-pumping is to compel the watermaster to do its job. If, on the other hand, the problem is that the Decree’s existing protections for public-trust assets are not sufficient, then ELF should seek a court order requiring the Board to recommend appropriate modifications to the Decree. ELF might demand, for example, that the Board act to correct the Decree’s Scott Groundwater’s delineations to reflect the aquifer’s true boundaries.

VI. Conclusion.

ELF’s Scott Groundwater lawsuit appears to be the first to confront the interplay between public-trust duties and public-trust powers. The question of whether the Board and/or a county have a duty to extend public-trust protections to groundwater is important, and will need to be answered at some point. Here, however, the real problem appears to be that the Decree’s existing public-trust protections are not being enforced. Before asking the court to order a new groundwater-regulation system, ELF should focus on fixing the system that already exists.

1 National Audubon Society v. Superior Court, 33 Cal. 3d 419 (1983).

2 Center for Biological Diversity, Inc. v. FPL Group, Inc., 166 Cal. App. 4th 1249, 1354 (2009).

3 National Audubon, 33 Cal. 3d at 440.

4 Golden Feather Cmty. Ass’n v. Thermalito Irrigation Dist., 209 Cal. App. 3d, 1276, 1286 (1989).

5 Id.

6 Santa Teresa Action Group v. City of San Jose, 114 Cal. App. 4th 689, 709 (2003).

7 National Audubon, 33 Cal. 3d at 424.

8 Golden Feather, 209 Cal. App. 3d at 1286; National Audubon, 33 Cal. 3d at 447.

9 National Audubon, 33 Cal. 3d at 447.

10 Cal. Water Code § 2773 (2012).

11 North Gualala Water Co., 139 Cal. App. 4th at 1581, fn. 1.


2 Responses to Right Doctrine, Wrong Groundwater: The Environmental Law Foundation’s Flawed Attempt To Extend Public-Trust Protection To Groundwater

  1. Sari Sommarstrom October 17, 2013 at 6:05 pm #

    For the Scott River Decree (1980), the Court did not assign a watermaster for its enforcement, other than for several contentious tributaries, so there is no watermaster to “blame” over the groundwater issue. The Scott River groundwater basin is still the ONLY one in all of California that has surface water and groundwater legally defined as interconnected (Water Code 2500.5) – even 42 years after the Legislature adopted this innovative statute.
    The interconnected zone varies in width on the decree’s maps, up to 1.5 miles from the river in places, because that is where the more productive wells are located. The Decree’s definitions section limits “interconnected groundwater” to that which is “so closely and freely connected with the surface flow of the Scott River that any extraction of such ground water causes a reduction in the surface flow in the Scott River prior to the end of a current irrigation season.” If the argument is that all groundwater everywhere is hydrologically interconnected with surface water in California, then the Legislature should make that change in the statutes.
    Choosing to target the Scott River stream system as the test case for public trust protections over groundwater is not in the same ballpark as the Mono Lake case with LADWP targeted for its heavy water export out of that system. A groundwater basin with the glass half full in terms of innovative water law should not be punished through expensive litigation on the back of a rural, underfunded county.

    • Felice Pace May 19, 2014 at 12:34 pm #

      Ms. Sommerstorm fails to point out that in some places the zone of interconnected groundwater defined by the Scott Adjudication Decree as “interconnected with surface flow” is right on the bank of the river. That, rather than the 1.5 miles she sites, is more descriptive of the situation on the Scott where unregulated pumping for irrigation very near the River is sucking water out of the stream. This has been demonstrated by recent groundwater studies.

      The author of the article is correct in calling for the Scott Adjudication to be reopened and fixed. The decision on where to draw the “interconnected groundwater” line was highly political and not based on the best science even at the time the decree was adopted. The sooner the State opens this adjudication to properly define interconnected groundwater the better.

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