The Third Appellate District of the California Court of Appeal (Third DCA) ruled last week that Siskiyou County (County) and the State Water Resources Control Board (Board) have public trust duties to consider the adverse impacts of groundwater extraction on the Scott River. The Third DCA further held that the 2014 Sustainable Groundwater Management Act (SGMA) does not, on its face, abrogate the public trust duty. Although the decision is an important one of first impression and should catch the attention of water users statewide, the ruling is “extraordinarily narrow” and only addresses “whether the enactment of SGMA, without more, abolishes or fulfills the common law duty to consider the public trust interests before allowing groundwater extraction that potentially harms a navigable waterway.” Environmental Law Foundation v. State Water Resources Control Bd. (Aug. 29, 2018, No. C083239) ____Cal.App.5th____ [2018 Cal. App. LEXIS 775, at *4]. A copy of the decision is available here.
The Third DCA addressed the question in the context of the parties soliciting a judicial opinion on an issue of great public interest. In that sense, the ruling is quite narrow. Plaintiffs did not, at this time, challenge any specific action or failure by the County or Board in betrayal of a public trust duty. Nonetheless, in the abstract, the Third DCA addressed two important questions: (1) does the public trust doctrine apply to the extraction of groundwater that adversely impacts a navigable waterway, and (2) does SGMA absolve the duty of the County and the Board to consider the public trust doctrine in relation to groundwater extractions that impact the Scott River?
The Third DCA relied on National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419, the seminal public trust case in California, to conclude that the public trust doctrine applies to the extraction of groundwater that adversely impacts the Scott River. The Third DCA did not find that the public trust doctrine applies generally to groundwater; rather, the test is whether there is the potential for an impact to a public trust resource. Here, the Third DCA found that the public trust doctrine applies to require the County and the Board to consider the impact of groundwater extraction on the Scott River, a navigable waterway and public trust resource. In this sense, the ruling is no different than National Audubon, in which the issue concerned the impact of non- navigable tributary surface diversions on Mono Lake, a navigable waterway. Ultimately, the threshold to apply the public trust doctrine is simply whether the activity, such as groundwater extraction, impacts a navigable waterway.
The Third DCA also rejected the County’s argument that SGMA absolved the obligation to consider the public trust doctrine as it relates to groundwater extraction impacts. SGMA allows local agencies to form Groundwater Sustainability Agencies (GSAs) tasked with managing the resource through Groundwater Sustainability Plans (GSPs). The County essentially argued that SGMA, through GSAs and GSPs, supplanted the common law duty to consider the public trust. The Third DCA, relying on National Audubon, disagreed. Both SGMA and the public trust doctrine “can live in harmony,” and the Legislature, in adopting SGMA, did not intend to occupy the field by replacing public trust duties.
Although narrow, the Third DCA’s decision has important implications for any activity that may negatively impact a public trust resource. The opinion extends the reasoning of National Audubon from surface diversions on non-navigable tributaries of navigable waters to groundwater extractions impacting navigable waters. The upshot is that regulators and water users, and in particular groundwater users, should be prepared to consider public trust impacts for any new project, extraction, or development. Furthermore, SGMA does not on its face absolve common law public trust considerations.
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