Scope of government’s duty after groundwater ruling is unclear

September 11, 2018 | By JEREMY TALCOTT

Originally published in the Daily Journal, September 11, 2018.

The 3rd District Court of Appeal recently ruled that the public trust doctrine can apply to groundwater extraction, but the court left some questions unanswered.

A recent ruling in the 3rd District Court of Appeal will very likely increase environmental litigation in California and make it even more difficult for landowners to use their own private property. In Environmental Law Foundation v. State Water Resources Control Board, 2018 DJDAR 8805 (Aug. 29, 2018), the Court of Appeal ruled that Siskiyou County has an obligation to consider impacts to public trust resources on the Scott River — such as navigation, recreation and the local ecosystem — whenever it issues permits for new wells. It also held that the State Water Resources Control Board has authority to regulate groundwater use under the public trust. These holdings will almost certainly increase environmental litigation in California and make it even more difficult for landowners to use their private property.

Depending on whom you ask, the public trust doctrine has historical roots stretching back to Roman law and the “Institutes of Justinian,” or is an invention of the 20th century judiciary with little basis in common law. Whatever its origin, the doctrine has implanted itself in California courts, giving California judges essentially a veto power over government land use decisions.

The doctrine requires public agencies to take into account certain public uses of natural resources in navigable waters before undertaking any project — or approving any private project — that will negatively affect those uses. In California, that means considering impacts on recreational uses of tidelands, lakes, and rivers, and environmental impacts to fisheries and wildlife. The idea is that those resources are held in trust for all of the public, and thus government agencies must act as the steward of those resources by not harming them without good reason. Environmental groups often bring lawsuits against state agencies and local governments, asserting the public trust doctrine, to delay or stop private and public development.

The most famous public trust case in California, National Audubon Society v. Superior Court, involved the diversion of water from tributaries to, for use as municipal water in Los Angeles. Environmentalists sued, arguing that the diversions substantially decreased the lake level, negatively impacting the local food chain and migratory birds. The California Supreme Court ruled that, while some water could be diverted, the state was required to leave enough water flowing into Mono Lake to preserve recreational uses and prevent irreparable environmental damage. The court reasoned that a diversion of water that directly feeds a navigable waterway is functionally equivalent to a direct diversion, in terms of the harm that would result to the public trust resources contained in that waterway.

The recent opinion in ELF v. SWRCB extended this reasoning, holding that — at least where groundwater is hydrologically connected to a public trust waterway — government is obliged to consider public trust resources before issuing well water permits. But landowners in California have a constitutionally protected property right in the reasonable use of underlying groundwater. And when private property rights are taken away in the name of the common good, the U.S. Constitution requires that the owners be given just compensation.

The Court of Appeal’s decision therefore gives governments another reason to deny landowners’ use of their own property at a time when more development is critically needed in California to alleviate housing costs. It also provides a mechanism for environmentalists to sue when they disagree with local development decisions. Even when a developer prevails, the years of delay and litigation will raise costs for everyone.

Moreover, the decision fails to provide any clear limitations on its rationale, so as to limit the ever-expanding scope of the public trust doctrine. Consider this: All navigable water in California starts as precipitation in one form or another. Human activities like grading, paving, agriculture, and the removal, addition, or alteration of plants to land will all eventually have some impact on navigable waterways, whether by diverting rainwater away from or into navigable streams, or by preventing or accelerating the process of “infiltration” that recharges groundwater basins. The further removed the activities are from the navigable waterways, the more complicated it is to determine whether government decisions result in net positive or negative impacts.

Pacific Legal Foundation filed an amicus brief at the Court of Appeal bringing to the court’s attention the importance of articulation a limiting principle. The brief also argued that complicated trade offs between environmental policy and private property rights are fundamentally public policy questions that should be resolved by the legislature, not the judiciary. Unfortunately, the Court of Appeal’s decision fails to provide any limiting principle, instead simply stating that its decision is closely tied to the facts of the case. But that provides little comfort to landowners and water users who have good reason to fear that any of their activities that may indirectly affect public trust waterbodies may soon be covered by the public trust doctrine.

For years, environmentalists have sought to push the scope of the public trust doctrine to any activity plausibly connected to any negative impact on a navigable waterway. Indeed, some seek to extend it even further: a lawsuit pending in federal court in the District of Oregon, Juliana v. United States, contends that the public trust doctrine imposes a duty on the federal government to take steps to remedy global warming. The recent decision in ELF v. SWRCB is squarely within this trend of radical expansion of the public trust doctrine, unaccompanied by any articulated and manageable limiting principle to protect the property rights of landowners and water users. Thus, the further this trend continues, the more that fundamental questions of environmental and land use policy will be decided not by legislatures through public debate, but by a handful of litigants presenting evidence to a single judge.

The county has not yet announced whether it will seek review in the California Supreme Court. If they do, the high court should accept the case to decide whether an ever-growing public trust doctrine is the right tool to resolve fundamental policy questions of environment protection and due respect for private property rights.