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Lawsuit Alleges Government Mismanagement of Scott River Groundwater Resources July 20, 2010 by Joseph M. Carpenter jcarpenter@somachlaw.com |
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On June 23, 2010, several fishing and conservation organizations (Petitioners) filed suit against the State Water Resources Control Board (SWRCB) and the County of Siskiyou (County), challenging the management of groundwater resources allegedly interconnected with the Scott River. (Environmental Law Foundation, et al., v. State Water Resources Control Board, et al., (2010) 34-2010-80000583.) Petitioners allege that the SWRCB and the County have violated the public trust doctrine by failing to manage and regulate groundwater extractions that are depleting surface water flows and causing harm to fish and wildlife in the Scott River. Background The public trust doctrine recognizes that the sovereign owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434, 437 [concluding that the public trust doctrine protects navigable waters from harm caused by diversion of nonnavigable tributaries].) The protection of recreational and ecological values are among those values protected by the public trust. (Id. at p. 435.) Under this doctrine, the state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. (Id. at p. 446.) This duty prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust. (Id. at p. 445.) The Scott River is a navigable waterway located in Siskiyou County that provides water supply for domestic and agricultural purposes. It also provides habitat for many fish and wildlife species, including salmon listed as endangered or threatened under federal and state Endangered Species Acts. Pursuant to a 1980 judgment adjudicating water rights, wells and sumps for extracting groundwater are authorized to be constructed so long as they are located “at least 500 feet from the Scott River or at the most distant point from the river on the land that overlies the interconnected groundwater, whichever is less” (zone of adjudication). Groundwater beyond the zone of adjudication, however, was not considered by this judgment. According to Petitioners, groundwater outside the zone of adjudication “remains unregulated, unmanaged and unprotected from hundreds of well owners and water users who extract groundwater to either substitute for or supplement surface water allocations.” Due to the alleged harm caused to public trust resources from the lack of government regulation and management of groundwater resources within the Scott River sub-basin, Petitioners filed a Petition for Writ of Mandamus in the Superior Court of California, County of Sacramento, seeking declaratory and injunctive relief. The Complaint Petitioners allege that the Scott River and its hydrologically connected groundwater are public trust resources that the SWRCB and County have a duty to continuously protect under the public trust doctrine on behalf of the people of California. Petitioners further allege that the hydrological connection between surface flow and groundwater extends beyond the zone of adjudication, and that the continued extraction of groundwater from both within and outside the zone of adjudication has caused injury to public trust resources, including harm to endangered and threatened salmon that inhabit the Scott River. Petitioners contend that the SWRCB and County have violated their duty under the doctrine to protect public trust resources by failing to manage and regulate groundwater extractions that deplete groundwater aquifers and reduce surface flows of the Scott River. Through this action, Petitioners seek a judicial determination that groundwater which is hydrologically connected to the Scott River is protected by the public trust doctrine, and that the SWRCB and the County have a duty under the doctrine to protect and manage this water. Petitioners further seek a judicial determination that the SWRCB and the County have violated their duties under the doctrine by failing to manage, monitor or limit extractions of groundwater interconnected with the Scott River. Petitioners also request the following relief: (1) a court order compelling the SWRCB to determine an accurate and current zone of hydrologic interconnectedness between groundwater and surface flows of the Scott River; (2) a court order compelling the SWRCB to monitor and review groundwater extractions in light of their duties under the public trust doctrine, and to adopt and implement groundwater management plans to protect and restore the public trust resources of the Scott River; and (3) a court order enjoining the SWRCB and County from issuing or renewing groundwater extraction permits or well-drilling permits within the Scott River sub-basin until such time as they are not in violation of their public trust duties. Conclusion and Implications The Superior Court’s decision in this case will further clarify the scope of the public trust doctrine. If the court adopts Petitioners’ position, the government’s duty under the doctrine will extend to groundwater extractions affecting navigable waterways. Such a determination would result in increased government management and regulation of groundwater insofar as the State of California, as trustee, would have a continuing duty to take the public trust into account in the allocation of groundwater resources interconnected with navigable waterways, and to protect public trust uses whenever feasible. With respect to the Scott River, this duty could include reconsideration of allocation decisions (i.e., groundwater extraction permits and well permits) after consideration of their affect on interests protected by the public trust, including fish and wildlife that inhabit the Scott River. For further information on Environmental Law Foundation, et al., v. State Water Resources Control Board, et al., please contact Joseph M. Carpenter at jcarpenter@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
