SPECIAL REPORT: Waters in Public Trust— California Ruling Could Change How Wells Are Regulated

By Lars-Eric Hedberg

March 26 — As California enters its fourth year of drought, counties and environmental groups are watching an ongoing legal battle that has the potential to expand the scope of waters that can be regulated under a legal doctrine that protects the public's use of surface waters.

The case centers on the interpretation of the “public trust doctrine” as it applies to groundwater. The case could represent a significant development in the way counties and groundwater management agencies regulate the ever-more-precious commodity across California.

The public trust doctrine is relatively simple legal principle that says certain resources—chiefly navigable waters and the land below them—are preserved for public use and protected accordingly by the government.

But in a dispute that began over fish fighting to survive in the dwindling waters of northern California's Scott River, Judge Allen Sumner, of the Sacramento County Superior Court, ruled last summer that Siskiyou County authorities in a community near the Oregon border must consider the public trust doctrine when deciding whether to allow the drilling of new wells that would pump groundwater that feeds into—and is thus “hydrologically connected” to—the river.

Some water law attorneys think that fine distinction has the potential to transform the role in water-stressed California of what Sumner classified as a quaint “common law doctrine whose roots stretch back to Roman law.”

Among the potential questions it raises: What does it mean for underground water to be “hydrologically connected” to a river or lake? How is that proven? And how far afield of navigable water could such a designation extend?

“The ruling gives concerned citizens and groups an incentive to study hydrology, as the impact will be felt on a case by case basis,” said Holly Doremus, a professor specializing in environmental regulation at the University of California, Berkeley, School of Law. “It will depend on the information they have and their aggression in pursuing public trust claims.”

The Case 

Sumner concluded that “the public trust doctrine protects navigable waterways from harm caused by groundwater extraction” (Envtl. Law Found. v. State Water Res. Control Bd., Cal. Super. Ct., No. 34-2010-80000583, 7/15/14).

He did not find that groundwater is, on its own, a resource subject to public trust protection. But he ruled that the doctrine applies to groundwater “so connected to a navigable river that its extraction harms trust uses of the river.”

Sumner also wrote that Siskiyou County, “as a subdivision of the State, is required to consider the public trust when it issues well drilling permits” for properties where the well could remove groundwater destined for the Scott River, a 60-mile-long tributary of the Klamath River.

A hearing in the case is scheduled in the same court March 27. Siskiyou County wants the superior court to reconsider its ruling in light of a groundwater management act signed into law in September 2014.

Waiting for Clarity 

Although the state's water law and management community quickly recognized the significance of Sumner's July 15, 2014, ruling, the case and its potential for state-wide precedent are both still in an infantile stage.

Because the court made the ruling at the pleadings stage, petitioners Environmental Law Foundation, Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources still must prove that groundwater extractions are adversely affecting public trust uses of the Scott River.

Additionally, because a trial court made the ruling, it is not binding precedent on other courts throughout the state.

But lawyers said the ruling, if it holds, will force local groundwater management agencies to consider trust resources and protect trust uses when they rule on groundwater drilling permits. They also noted that the ruling will likely expose these agencies to additional public trust claims.

In his ruling, Judge Sumner wrote: “If pumping groundwater impairs the public's right to use a navigable waterway for trust purposes, there is no sound reason in law or policy why the public trust doctrine should not apply.”

Lawyers involved in the case emphasized that the hydrological connection between surface and groundwater will play an important role in determining the extent to which the ruling affects state water resources, and that citizen groups must establish these connections to successfully invoke the doctrine and bring trust claims.

Public Trust Doctrine 

Under the equal footing doctrine, found in Art. IV, Section 3, Clause 1 of the U.S. Constitution, states newly-admitted to the U.S. are afforded the same legal rights as existing states. This means that upon its admission, a state receives title to its submerged lands, tidelands and lands underneath navigable waters.

According to the public trust doctrine, the state holds title to these public resources as trustee for people and future generations of the state.

Generally, the state has a fiduciary duty to protect these resources from harm and may not alienate them by selling or otherwise conveying them into private ownership.

Public trust doctrine duties and protections may be written into a state's constitution, codified in statutes or expressed as common law principles.

The title in public trust resources, such as navigable waters, differs from the title in lands the state intends to or can sell, according to the U.S. Supreme Court. Instead, “it is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties” (Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892)).

Public Trust Uses 

As the Supreme Court noted, navigation, commerce and fishing are recognized trust uses.

The doctrine has not been static—as it has evolved, courts have declared that it protects other recreational uses, such as swimming, hunting and boating.

Additionally, California has expanded the doctrine to environmental uses for ecological benefits to marine life and birds.

In 1971, the California Supreme Court declared that public trust uses for tidelands include “the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area” (Marks v. Whitney, 491 P.2d 374, 6 Cal.3d 251, 3 ERC 1437 (Cal. 1971)).

In addition to new trust uses, California courts have found that certain resources falling outside the scope of traditional public trust resources may in fact affect trust uses and resources.

The extension of the doctrine to non-trust resources, such as groundwater, has its roots in a landmark state decision.

Resources Subject to the Trust 

Generally, states recognize that navigable waters, tidelands and air are the primary types of public trust resources.

Other resources, however, may be subject to public trust constraints without actually being trust resources.

In National Audubon v. Superior Court of Alpine County, 658 P.2d 709, 33 Cal. 3d 419, 21 ERC 1490 (Cal. 1983), also known as the Mono Lake case, the California Supreme Court wrote that “the core of the public trust doctrine is the state's authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters.”

The court also declared that resources, which on their own lie outside the scope of trust protection, may be subject to consideration under the doctrine because they affect protected trust resources, such as inland navigable waters.

It held that the water board, the predecessor to the State Water Resources Control Board, must consider the public trust when it acts on applications to divert water. Specifically, it concluded “that the public trust doctrine, as recognized and developed in California decisions, protects navigable waters from harm caused by diversion of nonnavigable tributaries.”

Sumner's ruling in Environmental Law Foundation has taken the consideration of harm to navigable waters caused by diversions of non-navigable tributaries and extended it to harm caused by groundwater extraction.

In doing so, it has extended the public trust doctrine to groundwater, not as a protected resource or use, but as a resource subject to the doctrine's reach.

Siskiyou County Extends Doctrine 

In Environmental Law Foundation, the groups filed an action against the State Water Resources Board and county, contending that the public trust doctrine applies to groundwater hydrologically connected to the Scott River, a navigable surface water.

They claimed that groundwater pumping decreases flows in the Scott River, which injures fish populations. The court also noted that this would impact navigability, including boating and recreational uses.

As to relief, they asked the court to enjoin the county from issuing well drilling permits until it complies with its public trust doctrine duties.

The county argued that the doctrine does not apply to groundwater and, even if it did, the county is not required to regulate groundwater under the doctrine. It also argued that the board does not have the power to regulate groundwater under the doctrine, and the doctrine cannot apply because a 1980 decree by the Siskiyou County Superior Court adjudicated all rights to groundwater in the area.

The county and groups filed cross-motions on the pleadings, seeking rulings on the affirmative defenses raised. Basically, if the court had accepted the county's defenses, it would have dismissed the case before trial.

The court concluded that the doctrine protects navigable waters from harm caused by groundwater pumping, and the petitioners are entitled to judgment on the county's defenses.

It noted that under National Audubon the state's duty is to consider the public trust when it allocates water resources and to “preserve trust uses whenever feasible.” The doctrine, according to the court, is not an absolute prohibition on harm to trust uses but a consideration of them.

Relying on National Audubon, Sumner concluded that the difference between the diversion of non-navigable surface streams and extraction of groundwater “is a difference without a legal distinction.”

Water Lawyers ‘Not Surprised.'

Neither Holly Doremus nor Christian Marsh, a partner at Downey Brand LLP, was surprised by the superior court's ruling.

“It definitely took Mono Lake one step farther, but it wasn't totally unexpected given that various environmental advocacy groups have sought to expand Mono Lake for years,” Marsh told Bloomberg BNA. “I figured that at some point some court would expand the doctrine” to a consideration of groundwater pumping.

Doremus told Bloomberg BNA that the ruling is “a natural extension of Mono Lake.”

“The court's ruling follows necessarily from Mono Lake. The rulings are precisely analagous: In Mono Lake, the state supreme court ruled that water users could not divert water from non-navigable waterways flowing into the navigable lake, and in this case the court ruled that groundwater users cannot pump groundwater if doing so negatively affects the navigable Scott River,” she said.

“It is the right decision on the law,” she added.

Although the superior court's July 2014 ruling is already significant in and of itself, the groups still must prevail on the merits of their claims.

Supreme Court Declines Review Petition

The California Supreme Court on Feb. 18 denied the county's petition for review, which would have essentially allowed it to bypass the state's intermediate appellate court, the court of appeals (Cnty. of Siskiyou v. Superior Court of Sacramento Cnty., Cal., No. S220764, petition denied, 2/18/15).

The groups, including the Environmental Law Foundation, had also urged the court to grant the petition and review the superior court's decision on the ground “that the extraordinary nature of this case leads ELF to believe that these important questions not only need to be settled by an appellate court, but requires a decision from” the state supreme court.

Rod Walston, a partner at Best Best & Krieger LLP and attorney representing the county, told Bloomberg BNA that although the state supreme court denied the petition, the issue is important enough that when the case goes up in the right procedural posture, the court will most likely grant review.

“It may want to see further development of the issue in the superior court and court of appeals,” Walston said.

Lowell Chow, an attorney with the Environmental Law Foundation, told Bloomberg BNA that state supreme court review is always a long shot and rarely granted, especially when trying to bypass the court of appeals. He added that the significance of the issue warrants eventual review.

“The ultimate legal issue is very significant and has broad implications for the future of groundwater,” he said. “The state supreme court's denial of review means that the resolution of this case will take a bit longer in the end.”

Of more immediate concern, the superior court will consider two issues in the March 27 hearing.

The state water board has filed a demurrer, which essentially means that it has asked the trial court to dismiss the case against it rather than the entire case, and the county has asked the court to reconsider its ruling.

The county wrote in its motion “that regardless of whether the court’s July 15 order correctly stated the law prior to” the Sustainable Groundwater Management Act's enactment last September, two months after the ruling, “the July 15 order does not correctly state the law subsequent to SGMA’s enactment, and therefore this court should reconsider its July 15 order in light of SGMA.”

As to the ultimate ruling on the issue, Doremus thinks that the ruling would be upheld on appeal.

“The state supreme court or court of appeal will have to uphold the ruling because Mono Lake is clear and this case is clear,” she said.

“If other superior courts do not adopt the Sacramento court's ruling, the state supreme court would more likely to grant review,” she continued.

Marsh also noted that dissimilar rulings, particularly expansions of the doctrine by other superior courts, would show that trial courts are confused and warrant state supreme court review.

Surface, Groundwater Connection Emphasized

Both Doremus and Marsh emphasized that the ruling is limited in scope to groundwater that is hydrologically connected to surface water.

“The huge threshold issue here is the connection between groundwater and surface water,” Marsh said. “The ruling only addresses groundwater that is hydrologically connected to surface water, and much water in the state is not connected and will fall outside the ruling.”

Doremus agreed that the connectivity issue is paramount for a person or group seeking to prove that a certain groundwater basin is subject to trust concerns.

“The Scott River watershed is an example of one of the better known relationships between surface and groundwater,” she said. “What makes this ruling work is the Scott River being the best scientific case and Sacramento Superior Court being the best forum in which to bring the legal case.”

This raises two distinct issues—how the ruling affects the rest of the state and whether plaintiffs will be able to prove a connection actually exists.

“The ruling will matter if it turns out connections are easy to draw,” Doremus said.

Public trust groundwater cases could, however, devolve into battles of the experts in the fields of geology and hydrology.

“These cases will really place a science-based burden on the parties”—first on the party asserting the connection and public trust protection for surface water, and then on the party refuting that assertion, according to Marsh. “The trials could become very expert-driven.”

As to the geography of the state, Doremus and Marsh noted that the ruling would be felt on a case-by-case rather than regional basis.

“Initially, where the ruling is applied will depend on where the connections exist, which will then depend on not only geological conditions but also on a given superior court's acceptance of the ruling,” Doremus said. “For example, this case may have turned out differently in the trial court in Siskiyou County.”

“The connected basins to surface streams are more likely to be found in the northern part of the state, but the ruling could be applied anywhere the connection exists,” Marsh said.

The ruling may affect a number of parties, particularly local agencies, which currently manage groundwater resources.

Increases Burden On Local Agencies

The State Water Resources Control Board's Division of Water Rights regulates surface water diversions and rules on surface water applications. In doing so, it must, under National Audubon, consider trust resources and protect them to the extent “feasible.”

The state board does not, however, exercise the same authority over groundwater resources. Instead, local agencies, usually county-based, have traditionally managed groundwater extraction without a comprehensive statewide framework.

“If upheld, the ruling puts on local agencies the obligation to administer the public trust doctrine, something not all of them may be capable of doing,” Marsh said. “From the perspective of local agencies, additional trust responsibilities may be good—because they give these agencies additional authority over decisions of local significance—or bad—because they subject these local agencies to additional lawsuits.”

Marsh noted that the ruling means local agencies, which have thus far not needed to consider the public trust as it relates to surface water uses, will now have to closely consider the doctrine when they make decisions on groundwater that is related to surface water.

“Typically, local agencies have considered public health concerns related to sewer and sceptic systems when they regulate groundwater pumping,” Doremus said. “The ruling will most likely give counties pause while regulating groundwater installations.”

She also noted that some counties may feel unequipped to study public trust consequences of groundwater pumping.

“They may kick important or difficult questions to the state control board,” which has greater resources, she said. “It will be interesting to see how the ruling plays out institutionally between the local and state levels.”

The ruling may also give environmental advocacy groups another avenue to pursue public trust claims.

Victory, Tool For Citizen Groups

This case represents the latest attempt by plaintiffs to expand the public trust doctrine to places not near its origination, according to Marsh.

“One of the main takeaways is that the ruling creates an additional right of action, with somewhat loose or evolving standards,” he said. “So there is the potential for more litigation if an appellate court upholds the ruling.”

Doremus stressed that the potential breadth of the ruling is still heavily dependent upon the connection between surface and groundwater and groups' abilities to prove such as connection.

These groups will have an important role to play in protecting trust resources because they act as something of a counterweight to the interests asserted by other parties, particularly municipal and agricultural users, according to Doremus.

“Water users have traditionally been more effective than advocacy groups in the political arena, but the ruling may shift this balance slightly because lawsuits are a way to address the trust,” she said.

“The history of California water management suggests advocacy groups are important in ensuring trust resources and uses are protected,” she added. “Absent public pressure, institutions regulating these resources may not react to trust concerns.”

Marsh also noted that the ruling, beyond its legal import, will add pressure on agencies to consider trust purposes.

“Clearly the public trust involvement in the state's water law regime creates pressure to retain water for trust purposes, and agencies will need to ensure there is enough for uses—this analysis is already part of the broad surface water permitting process the state board engages in” he said.

“The ruling in this case increases the pressure on water sources and their regulators to retain water for trust purposes,” he added.

The Sacramento Superior Court's ruling must be considered in light of another significant development related to groundwater resources in 2014—California's new groundwater management laws.

September 2014 Groundwater Laws 

On Sept. 16, 2014, California Gov. Jerry Brown (D) signed into law three pieces of legislation, together the Sustainable Groundwater Management Act, which establish a framework for local and regional management of groundwater and call for some state oversight.

The act directs local agencies—defined as “local public agencies that have water supply, water management, or land use responsibilities within a groundwater basin”—seeking to become groundwater sustainability agencies to consider beneficial uses and users in adopting a groundwater sustainability management plan. The plan shall include, among other things, a physical description of the basin and its characteristics, measurable objectives, planning and implementation information, monitoring and overdraft protocols and a description of how the plan affects county and city general plans.

It also directed the state's Department of Water Resources to categorize each groundwater basin as high-, medium-, low- or very low priority by Jan. 31, 2015. Groundwater sustainability agencies must devise a groundwater sustainability plan or coordinated plans for high and medium priority basins subject to critical levels of overdraft by Jan. 31, 2020. These agencies must manage other high- or medium-priority basins under plans by Jan. 31, 2022, except under certain conditions.

The new law grants groundwater sustainability agencies broad powers to achieve sustainability goals, such as the authority “to adopt rules, regulations, ordinances, and resolutions,” as well as the authority to require water-measuring devices and devise well construction restrictions.

It requires groundwater sustainability agencies to submit their plans to the department. It also requires the department to review these plans every five years and adopt regulations regarding review by June 1, 2016. Moreover, it directs the state control board to develop interim plans for probationary basins if it finds that local agencies have not adequately addressed deficiencies in their plans or no local agency has chosen to develop a plan for a given basin.

Lastly, the act sets a number of benchmarks for groundwater sustainability agencies and basin characteristics, which if not met would require the state board to adopt an interim plan for a probationary basin.

Conflict With Groundwater Laws?

According to the county's motion for reconsideration, the department has classified the groundwater basin near the Scott River as “medium priority” under the new law.

The court should reconsider its decision and hold that groundwater pumping affecting navigable waterways is not subject to public trust constraints, Walston told Bloomberg BNA.

In the county's motion, it argued that the that the Sustainable Groundwater Management Act comprehensively regulates groundwater, including groundwater use that may affect public trust uses. Because the legislature created this statutory system, neither the state nor the county, as provided for in the decision, has a public trust duty to adopt a different system of regulation, according to the motion.

The county also argued that the statute precludes the state board from regulating groundwater, because, “as a general rule of jurisprudence, a legislative enactment regulating a subject matter displaces any previously-existing common law regulating the same subject matter.”

‘Parallel … Not Conflicting.'

Both Marsh and Doremus, however, believe that the laws do not conflict with the superior court's July 2014 ruling.

“The ruling seems to be parallel with the recent groundwater laws, not conflicting,” Marsh said. “The laws give local agencies more authority to regulate groundwater resources, with some state oversight, so in some way, the ruling on the public trust is complementary in the powers the local agencies will exercise.”

Added Doremus: “The ruling doesn't necessarily have any effect on the laws, which require groundwater management planning on the part of local groundwater agencies. The laws are mostly quiet on surface water,” which is still a big part of the court's ruling.

“Other Western states have moved faster towards the conjunctive management of groundwater and surface water resources,” she said. “Maybe these laws represent a concrete push towards this style of water resources management.”

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com