California Court of Appeal Affirms Application of Public Trust Doctrine to Groundwater Pumping that Impacts Navigable Waterways

In a closely watched case, the California Court of Appeal on August 29 published its opinion in Environmental Law Foundation v. State Water Resources Control Board, No. C083239 (Cal. Ct. App. Aug. 29, 2018), holding that both the State Water Resources Control Board and California counties have fiduciary duties under the public trust doctrine to consider the potential impacts of groundwater pumping on hydrologically connected navigable waterways. The court’s decision makes no surprising sea change in the law, but reinforces the potentially broad scope of the public trust doctrine when trust resources are at issue.

The case dealt with whether Siskiyou County has a public trust obligation to limit groundwater pumping when that pumping could reduce flows in the Scott River. The public trust doctrine generally obligates the state to protect navigable waterways for benefit of the public. Siskiyou County framed the issue as whether the public trust doctrine applies to groundwater in California, but the court’s holding was much more limited and retained the doctrine’s historic focus on navigable waterways. Although this is the first time the doctrine has been used to potentially limit groundwater pumping, the court emphasized that it was not applying the doctrine to groundwater directly, explaining that, “The dispositive issue is not the source of the activity, or whether the water that is diverted or extracted is itself subject to the public trust, but whether the challenged activity allegedly harms a navigable waterway.” Id., slip op. at 14. The court recognized a prior Court of Appeal decision holding that the doctrine “has no direct application to groundwater,” Santa Teresa Citizens Action Grp. v. City of San Jose, 114 Cal. App. 4th 689 (2001), but concluded it was inapposite to the question at issue, which involved impacts to a navigable waterway. The case does not affect the existing adjudicated wells in the Scott River basin, which are not under the County’s control.

The court also held that the Sustainable Groundwater Management Act (SGMA), a comprehensive groundwater planning and regulation statute enacted in 2014, does not displace the public trust doctrine in the groundwater context. Noting that repeal of the common law by statutory enactment is disfavored, the court pointed to SGMA’s limited nature and the California Supreme Court’s seminal opinion in National Audubon Society v. Superior Court, 33 Cal. 3d 419 (1983), which held that the public trust doctrine operates alongside and limits the state’s statutory surface water allocation system and could be enforced to preserve Mono Lake. “If the expansive and historically rooted appropriative rights system in California did not subsume or eliminate the public trust doctrine in the state,” the court reasoned, “then certainly SGMA, a more narrowly tailored piece of legislation, can also accommodate the perpetuation of the public trust doctrine.” Envtl. Law Found., slip op. at 22.

The court also held that both the State Board and Siskiyou County are required to exercise public trust obligations on the state’s behalf, reasoning that the County is a political subdivision of the state and is subject to the same obligations.

Siskiyou County must now determine whether to seek review by the California Supreme Court.

Because of its limited scope, the court’s decision leaves open most questions regarding what actions will ultimately require consideration of public trust obligations.

With regard to groundwater specifically, the case’s unusual procedural posture left ambiguous when an action will relate sufficiently to surface-water impacts to trigger trust obligations. The parties cooperatively agreed to seek only a general declaration, and so no specific wells were at issue. It remains undecided whether the decision will ultimately alter any action on any well in the Scott River basin, much less actions elsewhere in California. The decision also leaves open which parties must shoulder the financial and logistical burdens of proving the potential for impacts, or lack thereof, to trust resources.

The court’s focus on impacts to public trust resources means that a broad array of conduct could potentially be subject to public trust analysis. Although the connection in this case was relatively direct—pumping of hydrologically connected groundwater affecting water levels in the Scott River—the court did not limit its reasoning to such impacts. Instead, the court held that, “The government has a duty to consider the public trust interest when making decisions impacting water that is imbued with the public trust.” Id. at 15. Government agencies and project proponents conducting environmental analysis should therefore be conscious of potential indirect impacts to public trust resources as a component of environmental compliance processes and should not assume that standards provided in SGMA or other statutory enactments are sufficient to fulfill trust obligations.

The court’s full decision is available here.

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