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Court decision could reach far and wide

July 25, 2014

A Superior Court decision in Sacramento County may have implications for groundwater pumping statewide, down the line.
On July 15, the court ruled in favor of Environmental Law Foundation, agreeing that groundwater pumping that interferes with navigable waterways does come under the public trust doctrine. Thus, the court ruled, respondent Siskiyou County must consider the impact of pumping on navigable waterways in the process of issuing well permits.
There are limitations to the ruling that focused on the Scott River; in addition, attorneys for Siskiyou County have indicated they will appeal, according to Bloomberg BNA. Since court decisions do not attain precedent-setting standards until they are published by the Court of Appeals or reach the state Supreme Court, the impacts will not immediately be felt. But environmentalists see the ruling as a first step toward regulating groundwater.
The ruling does leave some questions unanswered, however. According to Greg James, an attorney for Inyo County who helped negotiate the Inyo-L.A. Long-Term Water Agreement, “the holding is less clear as to whether it applies to pumping from an already permitted groundwater well that affects public trust values,” or just to the issuance of new well permits.
Environmental Law Foundation made the case that 20 years of extraction of groundwater interconnected to the Scott River had decreased flows and interfered with public trust uses. “The Scott River is often de-watered in the summer and early fall. The river is then reduced to a series of pools. This, in turn, has injured the river’s fish populations.”
The public trust doctrine, originally invoked by Byzantine emperor Justinian in 530 A.D., obligates the government to protect and preserve waterways for public uses. In essence, the states hold waterways in trust for use by the public. The degree of protection was expanded by the Mono Lake decision in 1983. The Mono Lake Committee filed suit against the Los Angeles Department of Water and Power for diverting streams that fed Mono Lake. The suit was filed on the basis of violation of the public trust doctrine even though the streams being diverted were not navigable; the diversion did impact the ecosystem of a waterway that was.
The Scott River ruling was limited to the application of the public trust doctrine, not the merits of the case. The court agreed with Environmental Law Foundation arguments that “the public trust doctrine applies to groundwater so connected to a navigable river that its extraction harms trust uses of the river.” The ruling was also specifically limited to groundwater extraction that impacts navigable waterways.
Siskiyou County attorneys argued that the county had no duty to regulate groundwater under the public trust doctrine “because the Legislature has given it complete discretion to decide whether to regulate groundwater.” In fact, legislation gives counties the authority to adopt groundwater management plans but does not require them to do so. The argument did not fly. The court ruling states if groundwater pumping adversely affects public trust uses, “the county must take the public trust into consideration and protect public trust uses when feasible.”
The “when feasible” was also handed down in the Mono Lake case, National Audubon Society v. Superior Court. That ruling mandates that California is obligated to “consider the public trust when allocating resources, and to preserve trust uses when feasible … The doctrine does not prohibit the State from permitting actions that harm public trust uses.”
“In my opinion,” said James, “the holding in the case is a positive step toward recognizing some of the adverse impacts that can result from unregulated groundwater pumping.”


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