The California Supreme Court is currently considering a petition that raises 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 1983, the California Supreme Court held that the public trust doctrine applies to the State Water Resources Control Board’s regulation of appropriative rights in navigable waters, and that the Board is required to consider public trust uses in exercising its statutory authority. The California courts, however, have never considered whether the public trust doctrine applies to groundwater. Although the Board is authorized to regulate appropriation of surface water, it is not authorized to regulate groundwater.

The petition arises from an action brought in 2011 by Environmental Law Foundation and others in Sacramento County Superior Court against Siskiyou County. The environmental organization alleged that the public trust doctrine applies to groundwater and that the County is required to regulate groundwater uses to protect public trust uses in navigable surface waters. The County contends that the public trust doctrine does not apply to groundwater, because groundwater is regulated by the Legislature’s statutes. The court held that the public trust doctrine applies to groundwater and that — since the “State” has a public trust duty to regulate groundwater — the County, as a “subdivision” of the State, has the same public trust duty. The court concluded that the County, in issuing permits for new wells, is required to consider whether the new wells will affect public trust uses in surface waters.

On Aug. 25, Siskiyou County (represented by BB&K) filed a petition for writ of mandate in the state Supreme Court, asking that the Court review and overturn the Superior Court’s decision. Although petitions for writ of mandate are commonly filed in the Courts of Appeal, they are rarely filed in — and even more rarely granted by — the California Supreme Court. The Court has not yet acted on the petition, even though it was filed more than four months ago, which might suggest that it is seriously considering whether to grant the petition and review the lower court decision.