July 17, 2014

Siskiyou groundwater decision

By Damien M. Schiff Senior Attorney

This week, the Sacramento Superior Court ruled in Environmental Law Foundation v. State Water Resources Control Board that the public trust doctrine extends to groundwater extraction that affects navigable waters.  The decision is an expansion of the landmark and controversial 1983 decision of the California Supreme Court in National Audubon Society v. Superior Court, the first California decision to hold that the public trust doctrine applies to activities not immediately affecting navigable waters and tidelands.  This week’s decision could play a role in the ongoing debate over whether and how the California Legislature should regulate groundwater extraction in the state generally, especially in light of increased groundwater use to counteract the effects of the drought.  Pacific Legal Foundation filed an amicus brief in the case on behalf of the California Farm Bureau Federation, arguing that extending the doctrine to groundwater extraction would raise serious constitutional questions under the due process and takings clauses.

It is important to note, however, the decision’s limitations.  First, the decision does not hold that harm to groundwater as such would violate the public trust doctrine, but only to the extent that such harm would ultimately carry over navigable waters.  Second, the decision does not say anything about the power of the State Water Resources Control Board to regulate groundwater under the doctrine, but rather only holds that Siskiyou County has the authority and obligation to take the doctrine into account when deciding whether to issue new well permits.  Finally, because the decision is on a motion for judgment on the pleadings, the facts were assumed in favor of the plaintiffs; hence, the County can still prevail if it demonstrates that groundwater extraction in the County does not affect the Scott River.

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