The California appellate courts will soon be called on to decide an important and novel issue of California water law: whether the public trust doctrine applies to groundwater. The public trust doctrine holds that the state possesses sovereign interests in navigable waters, which are held in trust for the public. In National Audubon Society v. Superior Court, the California Supreme Court held that the public trust doctrine applies to the State Water Resources Control Board’s regulation of appropriative water rights in navigable waters, and that the Board is required to consider public trust uses in exercising its statutory authority. The Court also held that — although the public trust doctrine applies only to navigable surface waters — the doctrine also applies to nonnavigable tributaries of the surface waters, to the extent that activities in the tributaries affect public trust uses in the surface waters. The California courts, however, have never faced or decided the question whether the public trust doctrine applies to groundwater.
The question whether the public trust doctrine applies to groundwater is raised in an action brought in 2011 by an environmental organization, Environmental Law Foundation, and others in Sacramento County Superior Court. ELF’s action was brought against the Board and Siskiyou County. ELF alleges in its complaint that the public trust doctrine applies to groundwater, and, therefore, that the Board is authorized — and Siskiyou County is required — to regulate groundwater that is interconnected with the Scott River, which is located in Siskiyou County. The Board, although a defendant, has agreed with ELF’s contention that it has the right to regulate use of groundwater under the public trust doctrine.
Siskiyou County (represented by BB&K), on the other hand, contends that the public trust doctrine does not apply to groundwater, and thus the Board is not authorized, nor is the County required, to regulate Scott River groundwater under the public trust doctrine. The County also argues that this conclusion is supported by the Legislature’s enactment in 2014 of the Sustainable Groundwater Management Act, which provides for comprehensive regulation of the right to use groundwater in California. The County argues that, since the Legislature has provided for comprehensive regulation of the use of groundwater, the public trust doctrine — a common law doctrine fashioned by the courts — does not provide a separate system for such regulation.
The Sacramento County Superior Court rejected Siskiyou County’s argument, holding that the public trust doctrine applies to groundwater to the extent that use of groundwater affects public trust uses in surface waters. The court held that since the “State” has a public trust duty to regulate groundwater uses that affect public trust uses in surface waters, Siskiyou County — as a “subdivision of the State” — has the same public trust duty; thus, the County, in issuing permits for new wells, is required to consider whether the new wells affect public trust uses in the Scott River. The court also held that SGMA does not alter or affect the County’s public trust duty. The Superior Court is expected to issue its final judgment in the near future, and, as soon as the final judgment is issued, Siskiyou County plans to appeal the decision to the Third District Court of Appeal in Sacramento.
In reviewing the appeal, the Court of Appeal will not only face the immediate question of whether the public trust doctrine applies to groundwater — an issue never decided by the California appellate courts — but will also face broader questions concerning the interrelationship between the common law public trust doctrine and the Legislature’s comprehensive statutory system for regulating groundwater under SGMA.
Last year, the California Supreme Court declined to review the case on a petition for writ of mandate, apparently for the reason that all issues had not been finally decided at the trial level.
