May 29, 2014

Groundwater and the public trust doctrine, continued

By Damien M. Schiff Senior Attorney

Earlier this month, the Sacramento Superior Court held a hearing in Environmental Law Foundation v. State Water Resources Control Board, in which the environmentalist plaintiffs are seeking an expansion of the public trust doctrine to groundwater extraction that negatively affects navigable waters.  We filed an amicus brief on behalf of the California Farm Bureau Federation arguing that the court should decline to expand the public trust doctrine to avoid possible due process and takings concerns.

In conjunction with the hearing, the court issued a tentative decision holding that the public trust doctrine does extend to groundwater extraction.  The decision rejects our arguments on two grounds:  (1) the doctrine’s extension to groundwater is implicit in the California Supreme Court’s 1983 decision in National Audubon Society v. Superior Court; and (2) the court need not address whether activities that harm navigable waters but that have only an attenuated connection to those waters (such as pesticide use or stormwater runoff) fall within the doctrine’s scope because the connection between groundwater extraction and impacts to navigable waters, at least as pled by the environmental plaintiffs, is not attenuated.*

During the hearing, the court expressed concern, however, about whether an actual controversy exists between the environmental plaintiffs and the State Board, as the State Board conceded early on in the litigation that the public trust doctrine does apply to groundwater and that the State Board must take the doctrine into account when it makes otherwise authorized decisions affecting groundwater use.  Not surprisingly, the court this week announced that it would hold off on finalizing its tentative decision until Siskiyou County, the second defendant in the suit, files its anticipated cross-claim against the State Board in an attempt to create a controversy with the State Board over the doctrine’s scope.  A final decision on the issue probably won’t be made for a few more months, after which immediate review in the Court of Appeal will probably be sought by the losing parties.

*That’s an important point.  The public trust doctrine question has been presented to the court in the form of a motions for judgment on the pleadings, so the plaintiffs, even if they prevail on the law, must still prove that extraction of groundwater does have a negative impact on the navigable water (the Scott River) at issue.

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