In Environmental Law Foundation v. State Water Resources Control Board, the California Court of Appeal for the Third District on August 29, 2018 affirmed a district court’s application of the Public Trust Doctrine to the impact of groundwater wells on the Scott River in Siskiyou County. The case has far-reaching implications for groundwater use in California, undermines the measured implementation groundwater management provided in the Sustainable Groundwater Management Act (SGMA), and is a further extension of public trust principles into appropriative water law.
The parties had previously narrowed the factual and legal questions and requested relief to expedite an appeal, leaving this decision as simply a request for declaratory relief on the application of the Public Trust Doctrine to the extraction of groundwater. Specifically, the legal question was whether, in issuing groundwater well permits, the County had a duty to consider the public trust impacts.
The Public Trust Doctrine, derived from English common law, provides that some resources are so central to the public good that governments can never convey them outright. The doctrine was imported to the U.S. in the 1892 case of Illinois Central Railroad v. Illinois, holding that the public interest in tidelands along the Chicago lakefront prevents unfettered private property rights. The doctrine was applied for the first time to appropriative water rights in the 1983 National Audubon Society v. Superior Court case, in which the California Supreme Court held that vested water rights held by the City of Los Angeles are subject to continuing state authority to address harm to Mono Lake associated with diversions of tributaries.
Unlike other Western states, California has no permit system for groundwater. Instead, overlying landowners have “correlative rights” to aquifers. In the face of record drought and overdrafting of groundwater basins, in 2014 California enacted SGMA. That law directs local entities in critical areas to develop management plans to prevent overdraft over 20 years, subject to state approval. By now super-imposing the Public Trust Doctrine, this case may undermine the efficacy of the SGMA planning process.
The decision has potentially great impact on the application of SGMA to agricultural interests throughout California, opening the door to litigation from environmental groups concerned about environmental harm from reduced stream flows. The full impact of the decision, assuming it survives further appeal or a legislative fix, could be quite large, as environmental groups in California, including the lead plaintiff in the case, have not been shy about adopting an aggressive litigation posture.