California Court Says Groundwater Extraction Harming Rivers Must Be Regulated

Bloomberg BNA — A California court has issued a ruling requiring the regulation of groundwater withdrawals that harm the Scott River in Siskiyou County.

The July 15 ruling marks the first time a state court has decided the public trust doctrine applies to groundwater interconnected to nearby rivers, attorneys involved in the case told Bloomberg BNA July 17.

“It's a very broad and sweeping decision,” Roderick Walston, who represents Siskiyou County—a defendant in the closely watched case, said. “The court's decision, in effect, would require all counties in California to regulate groundwater under the public trust doctrine, to the extent that extractions of groundwater may affect public trust uses in navigable waters.”

Walston, an attorney at Best Best & Krieger LLP, said the ruling “seems to be inconsistent” with “how the Legislature has chosen to regulate groundwater.”

The county will likely petition the appellate court to review the ruling, Walston said.

For the Environmental Law Foundation and others who brought the action against the State Water Resources Control Board and Siskiyou County, the decision is a big win in their efforts not only to protect the state's rivers but also to force California to rethink the management of groundwater resources.

Decision Called ‘Monumental.'

James Wheaton, an Environmental Law Foundation attorney, called the decision “monumental” and said that it “changes everything about groundwater in California, the only western state that does not regulate its precious groundwater.”

Wheaton told Bloomberg BNA the decision should “light a fire under the Legislature” to make groundwater a management priority.

The ruling from the California Superior Court in Sacramento County tackled the biggest legal question in the litigation: Does the public trust doctrine apply to groundwater hydrologically connected to a navigable river?

Citing a landmark public trust decision from the California Supreme Court involving the National Audubon Society to protect Mono Lake, Judge Allen Sumner said “yes,” but only “when the extraction of groundwater causes harm to navigable waters harming the public's right to use those navigable waters for trust purposes.’’

County Must Consider Public Trust Doctrine

Sumner also said that Siskiyou County, “as a subdivision of the State, is required to consider the public trust doctrine when it issues drilling permits.” The judge, however, didn't issue judgment against the county or the lead defendant, the State Water Resources Control Board, as to remedies.

“This ruling thus does not dispose of the case; it simply allows the case to proceed beyond the pleading stage,” Sumner said.

The Environmental Law Foundation, the Pacific Coast Federation of Fisherman's Associations and the Institute for Fisheries Resources filed the lawsuit in June 2010 under the public trust doctrine to force the state and the county to stop the issuance of permits to drill groundwater wells near the Scott River.

In its pleadings, Siskiyou County said the public trust doctrine doesn't apply to groundwater, because it's not navigable. Also, the county said the regulation of groundwater would intrude on a 1980 decree that adjudicated all water rights in the Scott River.

Sumner rejected both of the county's claims, saying “the court is not finding that the public trust doctrine applies to groundwater itself” and the wells that plaintiffs want to regulate “lie outside the area adjudicated by the 1980 decree.”

State Supports Plaintiffs' Claim

California's State Water Resources Control Board attorneys filed briefs supporting the plaintiffs' public trust doctrine claim.

“Judge Sumner's decision is an important and thoughtful decision which reaffirms that the public trust doctrine protects our state's navigable waterways,” board attorney Michael Lauffer told Bloomberg BNA in a June 16 e-mail.

Wheaton, the attorney for Environment Law Foundation, said the state's supporting brief may likely result in the court dismissing claims against the state water board.

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