The state has no “public trust” power over groundwater

The public trust doctrine is more expansive in California than elsewhere since the state’s Supreme Court ruled in the early 1980s that it applies to nonnavigable tributaries and the shore zones of navigable lakes and streams. The Environmental Law Foundation wants the state to go even further and sued the California Water Board and Siskiyou County for failing to regulate groundwater. They contend groundwater withdrawals more than 500 feet from the banks of the Scott River decreased base flow in the river, leading to a reduced number of salmon. The Sacramento Superior Court accepted this unprecedented and unwarranted expansion of the public trust doctrine.

PLF, representing the California Farm Bureau Federation, filed an amicus brief explaining that the superior court’s rationale could mean that administrative agencies in California have a “public trust duty” to consider whether any permit issued for a well might affect the levels of a navigable river. The lower court’s holding removes any remaining limiting principle to the public trust doctrine because all navigable water in California starts as precipitation, and activities such as grading, paving, agriculture, and the removal, addition, or alteration of plants to land can all divert rainwater from running into navigable streams or prevent the process of “infiltration” that recharges groundwater basins. If the superior court’s rationale is adopted more widely in California, there would be very few human activities that wouldn’t require public trust consideration of their impacts. This unilateral judicial expansion of the public trust doctrine would be unconstitutional under the Fifth and Fourteenth Amendments to the U.S. Constitution because Californians have a long-existing constitutional right to the reasonable use of water underlying their property, and neither the legislature nor the courts may by “ipse dixit . . . transform private property into public property without compensation.”