Tag: public trust doctrine

Third District Upholds the Department of Water Resources’ Long-Term Extensions of State Water Project Contracts under CEQA, the Delta Reform Act, and the Public Trust Doctrine

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In Planning and Conservation League v. Department of Water Resources (Cal. Ct. App., Jan. 5, 2024, No. C096304), the Third District Court of Appeal upheld an EIR prepared by the Department of Water Resources (DWR) for DWR’s approval of amendments to long-term water supply contracts with local water agencies receiving State Water Project (SWP) water. These contract amendments extended the terms of the SWP water supply contracts to 2085 and expanded DWR’s ability to use revenue bonds. In a victory for DWR and the SWP water contractors, the court upheld DWR’s EIR against an array of CEQA challenges. The court also rejected the petitioners’ claims that the amendments violated other legal requirements, including the Delta Reform Act, the Public Trust Doctrine, and the Burns-Porter Act.

By way of background, in the 1960s, DWR and 29 local government contractors entered into long-term (75-year) contracts granting the contractors rights to a portion of water from the SWP in exchange for the local agencies’ financial obligations. Each contract includes a table, “Table A,” that specifies the maximum annual water allocation, although full delivery is not guaranteed and often amounts to about half the Table A amount.

The contracts include an “evergreen clause” that allows the contractors to opt for continued service beyond the contract’s expiration by giving advanced notice. Several contractors exercised this option, leading to negotiations for long-term extensions of the contracts. The negotiations aimed to address the “debt compression problem,” where the impending contract termination limited bond maturity to 17 years, increasing the repayment costs. DWR and the contractors reached an agreement in principle to extend the contracts to 2085, which would allow for longer-term bond funding for essential capital upgrades and repairs. They also agreed to a revenue bond amendment that updates the definition of water system facilities to include post-1987 repairs and approved capital projects.

DWR prepared an EIR for the proposed amendments. The EIR concluded that the amendments would not cause environmental impacts because they would not alter the existing authority to build or modify SWP facilities, change water allocations, or create new water management measures.

After certifying the EIR, DWR filed a validation action to validate the amendments. Thereafter, several conservation groups and public agencies brought legal challenges the EIR and the validation action. The trial court ruled in favor of DWR and the petitioners appealed.

CEQA

DWR properly assumed the existence of the current contracts in the EIR’s environmental baseline.

The petitioners argued that the EIR’s impact analysis was based on an improper baseline because the baseline included the current water contracts. The court explained that to determine whether a project’s environmental impacts are significant, the agency must compare the project against existing environmental conditions—the baseline. When a project involves ongoing activities or the extension of past activities, the current levels of use and their physical impacts are part of the baseline.

The court explained that this rule is applicable to renewing permits or approvals for existing facilities, even if those facilities had not been previously assessed under CEQA. Accordingly, the court held that DWR appropriately included the existing contract conditions in the environmental baseline. DWR was not required to use a hypothetical baseline “that imagines a world” without the contracts.

DWR did not improperly piecemeal the Project in excluding a Delta conveyance facility from the project definition.

The petitioners argued that the EIR’s analysis was inadequate because it failed to consider related projects – including a future Delta conveyance facility, such as the previously proposed “California WaterFix” project – as part of the proposal, leading to an overly narrow project description and improper piecemealing.

The court explained that CEQA requires an environmental analysis to consider the whole of an action affecting the environment. An agency may not divide a larger project into smaller segments, which might individually have minimal environmental impacts but could collectively result in significant environmental damage. Further, as held in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights I), an EIR must analyze the environmental effects of any future expansions or actions that are a foreseeable consequence of the initial project and might alter its scope or environmental effects.

The petitioners argued that the trial court relied too heavily on the Laurel Heights I criteria, asserting that a broader “related to” test should apply and that actions that are close in time and location must be considered part of a larger project. The court rejected the petitioners’ argument, explaining that later opinions have confined such reasonings to situations in which a project legally necessitates or assumes the completion of another action, a situation that was not present here.

The court next explained that the courts have interpreted Laurel Heights I variously, with some concluding that a project is part of a larger project under CEQA if it is a “crucial element” of a larger project, such as when one project cannot proceed without the other. Other courts have held that there may be piecemealing when the project at issue is a first step or a catalyst toward another project. On the other hand, there is no piecemealing when the projects can be implemented independently.

Here, DWR properly treated the contract amendments as a stand-alone project, distinct from a future Delta conveyance facility. The record demonstrated that the amendments have separate, independent purposes from a Delta conveyance, such as addressing the bond compression issue. While the amendments may possibly aid in financing a conveyance facility, they serve broader purposes and address other challenges. Moreover, the record showed that there is considerable uncertainty as to whether a Delta conveyance facility would ever be approved or constructed. In light of these factors, DWR was not required to treat a potential, uncertain Delta conveyance as part of the same project as the contract amendments.

DWR did not need to assess the direct, indirect, and cumulative effects of projects that would benefit from the amendments’ bond funding.

The petitioners argued that the EIR should have evaluated the direct and indirect impacts of enabling a Delta conveyance project. The court found that this argument suffered from the same flaws as the petitioners’ piecemealing argument: the possibility of a Delta conveyance in the future is too speculative in terms of both its timing and scale. Lead agencies are not required to speculate about potential impacts.

The petitioners also argued that DWR should have evaluated the impacts of other capital projects financed by the amendments, such as the Oroville hydroelectric license project. Petitioners, however, failed to properly present this argument by failing to discuss these other projects or explain why their effects should be considered impacts of the amendments. Moreover, the argument was baseless. The EIR clarified that the amendments would support a variety of long-term capital projects. According to the petitioners’ logic, DWR would be obligated to predict the impacts of all of these projects in the EIR for the amendments, an expectation that is unreasonable. Further, the court noted, projects that are merely governmental funding mechanisms or fiscal activities that do not commit to any specific project that could have environmental effects are not subject to CEQA. Although these capital projects may be part of DWR’s overall plans for the SWP, their connections to the amendments is too tenuous: the amendments do not commit DWR to these projects and do not authorize revenue bonds for any of them (which would require a separate approval).

The EIR’s project description complied with CEQA and was not misleading or inconsistent.

The petitioners asserted – and the court rejected – three arguments regarding the EIR’s project description. First, the petitioners argued that depicting the Delta conveyance facility as a separate project in the EIR conflicted with statements made in earlier environmental review documents. The petitioners cited various documents to support this assertion, but failed to explain how these documents substantiated their position. Moreover, the court’s examination of the cited documents did not reveal any inconsistencies.

Second, the petitioners argued that identifying the 2085 extension date in the EIR was misleading and inaccurate because the EIR did not reveal DWR’s expectation of successive contract extensions under the existing contracts’ evergreen clauses. But petitioners failed to support this argument with any analysis or authority. Furthermore, the record demonstrated that there are clear differences between applying the evergreen clause to individual contracts and achieving a long-term extension for all contractors.

Third, the petitioners argued that the EIR incorrectly stated that the amendments would not change the authority under the current contracts to construct new or modify existing facilities. They argued that the amendments would remove limitations on revenue bond eligibility for new facilities, potentially financing new or expanded facilities. The court rejected this argument as inconsistent with the EIR’s project description, which made these facts plain by explaining that the amendments would offer enhanced funding mechanism that could fund new or expanded facilities.

The petitioners failed to show that the EIR’s range of alternatives was unreasonable.

CEQA requires an EIR to identify and evaluate a reasonable range of alternatives that could achieve most of the project’s basic objectives while avoiding or significantly reducing its adverse environmental effects. DWR’s objectives for the amendments included financing the SWP past 2035, maintaining funding reserves, simplifying the billing process, and improving financial coordination between DWR and the contractors. In addition to a no-project alternative, the EIR analyzed seven alternatives, including different contract extension lengths with or without financial amendments, bond sales extending beyond the current contract expiration, and a scenario where not all contractors agreed to the amendments. Two additional alternatives were considered, but rejected from further consideration in the EIR: reducing the “Table A” amounts and implementing new water conservation provisions.

The petitioners argued that DWR’s selection of alternatives violated CEQA in three ways. First, in a single-sentence argument, the petitioners asserted that the alternatives were not sufficiently different to constitute a reasonable range. The court summarily rejected this argument because the petitioners failed to provide any authority or analysis to support it. It was incumbent on the petitioners to show that the range of alternatives were manifestly unreasonable or identify evidence of a least one potentially feasible alternative that would meet most of the basic objectives while reducing the project’s impacts. The petitioners’ one-sentence statement did not satisfy this burden.

Second, the petitioners argued that the revenue bond amendment creates financial risk and that the EIR should have analyzed an alternative that excludes that amendment. The court rejected this argument, explaining that CEQA is not a statute for economic protection, and economic impacts alone do not qualify as significant environmental impacts. Moreover, the no-project and the extension-only alternative evaluated in the EIR sufficiently covered the exclusion of the revenue bond amendment.

Third, the petitioners challenged DWR’s rejection of alternatives to reduce Table A amounts and to implement new water conservation measures, arguing that these alternatives would reduce environmental effects and would align with other state laws and policies. The court rejected this argument, explaining that agencies are not required to analyze alternatives that would solve broader problems or add complex issues that the agencies had chosen not to address. Here, DWR deliberately limited the EIR’s scope to financial issues related to the SWP contracts and made a reasoned decision to exclude Table A amounts from the project’s scope. DWR was not required to analyze alternatives that address bigger issues than the problems DRW is trying to address.

DWR properly defined the no-project alternative as the water contracts proceeding without the amendments, rather than termination of the contracts.

An EIR is required to evaluate a “no project” alternative; the purpose of this requirement is to compare the environmental impacts of not approving the project with those that would occur if the project is approved. Here, the EIR’s no-project alternative assumed that operations and financing of the SWP would continue under existing contracts until December 31, 2035, with contract terms potentially extended beyond this date through the evergreen clause. Under this scenario, water services would continue beyond 2035 in line current financial terms, no bonds would be sold with maturity dates past 2035, and the debt compression issue would worsen. The EIR concluded that this alternative, like the amendments, would not lead to direct physical environmental impacts because it would not introduce new water management measures, change DWR’s authority to build or modify facilities, or alter water allocation in the existing contracts.

The petitioners argued that DWR should have considered, as the no-project alternative, a scenario in which the contracts are allowed to expire. According to the petitioners, relying on the evergreen clause as part of the no-project alternative is inappropriate because: (i) application of the evergreen clause might itself be a project; (ii) the evergreen clause does not guarantee an extension of all contract provisions; and (iii) the evergreen clause does not account for other future changes to the SWP that DWR has acknowledged. The petitioners further asserted that DWR’s analysis blurred the distinction between the no-project scenario and the amendments, thereby failing to provide a clear and factual analysis of maintaining the status quo.

The court rejected these arguments. The court explained that the analysis of the no-project alternative must consider current conditions and what can reasonably be expected in the foreseeable future if the project is not approved. In reviewing a no-project alternative, the court’s focus narrowly on whether the EIR adequately describes existing condition and offers a plausible vision of the foreseeable future. Here, DWR’s no-project met these standards. Given the long history of the SWP and its critical role in supplying water to the state, as well as the long-term investments of the contractors in the SWP, DWR was not required to treat termination of the contracts as the no-project alternative.

Petitioners failed to demonstrate that recirculation of the EIR was required.

CEQA requires a lead agency to recirculate an EIR for further public review and comments when the agency introduces “significant new information” to the EIR before its certification. The court held that petitioners failed to meet that burden by failing to provide any facts or analysis of the information added to the EIR was “significant” within the meaning of CEQA.

The petitioners further claimed that recirculation was required because DWR added additional information regarding the rejected “Table A amount reduction” alternative in the final EIR. The court explained, however, that the added discussion was not “significant” because it did not reveal any new environmental impact or an increase in the severity of an impact, and did not deprive the public of a meaningful opportunity to comment on a substantial adverse effect or a feasible mitigation measure or alternative that the project’s proponents declined to implement. Rather, the additional information added to the final EIR served only to clarify and amplify the conclusions of the draft EIR, and therefore did not trigger recirculation.

Delta Reform Act

Under the Delta Reform Act, any state agency planning to undertake a “covered action” must first certify in writing that the action is consistent with the Delta Plan. This certification, including detailed findings, must be submitted to the Delta Stewardship Council before the covered action is implemented. (Water Code, § 85225.) A “covered action” is defined in Water Code section 85075.5 as a plan, program, or project that meets certain criteria and is not exempt.

Here, DWR determined that the amendments were not a covered action and therefore did not prepare a certification of consistency with the Delta Plan. The petitioners, in contrast, asserted that the amendments constituted a covered action. The court agreed with DWR that the amendments were not a covered action.

The court observed that, viewing the Delta Reform Act holistically, several points stand out. First, the Act primarily targets “future developments,” rather than existing ones. Second, a covered action is defined as an action occurring within the Delta or Suisun Marsh boundaries. Third, such actions must significantly impact California’s water supply reliability or the Delta ecosystem. Fourth, routine maintenance and operation of the SWP are not included as covered actions. While the court did not delve into the exact meaning of “routine maintenance and operation,” it found it fair to say that the existing SWP is generally exempt from being a covered action.

Applying these insights, the court held that the amendments do not qualify as a covered action. The amendments merely extend existing contracts with SWP contractors and enhance DWR’s ability to finance improvements and new facilities for the SWP using revenue bonds, subject to certain approvals. They do not physically take place in the Delta, nor do they modify the developed uses of the SWP. Therefore, the DWR’s decision not to prepare a certification of consistency with the Delta Plan was not erroneous.

Public Trust Doctrine

The petitioners argued that, under the California Supreme Court’s decision in National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 (National Audubon), DWR had an affirmative duty to take the public trust into account in approving the amendments. The court disagreed, reasoning that a closer reading of National Audubon indicates that the high court was specifically concerned about the approval of water diversions. This distinction is significant because DWR does not approve water diversions—that task is performed by the State Water Resources Control Board.

Furthermore, the court found that the record supported DWR’s conclusion that the amendments do not impact a public trust resource. The water rights at issue were granted by the State Water Board in 1967 and have been amended by that board several times. The contracts giving the contractors interest in those water rights “were executed in the 1960s and allow the contractors to extend their interests indefinitely.” Under this framework, it was reasonable for DWR to conclude that extending the terms of the contracts to 2085 would not have impacts on resources held in the public trust.

The court also rejected the petitioners’ argument that, under National Audubon, DWR has a “‘continuing duty to supervise’” the taking and use of the appropriated water. The court explained that petitioners took the statements in National Audubon out of context in that, in National Audubon, no agency had ever considered the public trust in relation to the challenged water diversions and their harm to Mono Lake. The court in the present case declined to translate the “continuing duty of supervision” described in National Audubon as imposing a continued duty on DWR to supervise the water rights with which it operates the SWP. In this context, DWR’s duty under the public trust doctrine is only triggered when DWR is taking an action with an impact on public trust uses. Since there is no such impact here, the duties to weigh the public trust interests or consider additional protections do not apply.

Remaining Arguments Against Validation of the Amendments

Finally, the court rejected several other arguments raised by the petitioners challenging the amendments’ validation.

The Validation Action Was Not Premature

The petitioners argued that DWR’s validation action was premature. The Court of Appeal rejected this contention, explaining that the 60-day limitation period for bringing a validation action and the public policy of a speedy determination of a public agency’s action undermined the petitioners’ claim of prematurity. Furthermore, the petitioners failed to cite any authority to support the position that prematurity is a valid defense against a validation action.

The Amendments Are Consistent with the Burns-Porter Act

Under the Burns-Porter Act, any income from the sale, delivery, or use of SWP water or power must be placed into a special fund. This fund is then used for various purposes, following a strict order of priority established by the Act. The highest priority is for funding the annual maintenance and operation costs of the SWP, including replacing any parts of the SWP as needed. The petitioners argued that the amendments – specifically the extension amendment and the revenue bond amendment – were inconsistent with this first priority requirement. The court disagreed, finding that nothing in the amendments disrupts or contravenes the established priority order for the use of funds as set forth in the Burns-Porter Act.

DWR Complied with Water Code Section 147.5

Water Code section 147.5 outlines the procedures DWR must follow when renewing or extending long-term water supply contracts. Specifically, that statute requires DWR to present details of the contract terms at an informational hearing before the Legislature at least 60 days before final approval of the contract.

The petitioners claimed that DWR failed to meet these requirements because it submitted only draft amendments, not the final version, to the Legislature. The court rejected this argument, finding that Water Code 147.5 only mandates a presentation to the Legislature 60 days before contract approval and does not specify that the contract must be in its final form at this stage. The informational hearing could lead to further amendments, and the statute not require another hearing for such changes. Moreover, the purpose of Water Code Section 147.5 is to ensure high-level oversight of the renewal or extension of SWP long-term contracts, not to involve the Legislature in overseeing the details of finalizing these contracts.

The Petitioners failed to support their argument that the amendments are unconscionable.

The petitioners argued that it was unconscionable for DWR to reauthorize the terms of the existing contracts regarding water delivery amounts because those terms are impossible or impractical to fulfill. The Court of Appeal, like the trial court before it,  declined to consider this argument because the petitioners failed to offer any legal authority to support it.

DWR acted within its authority in approving the amendments.

Lastly, the petitioners argued that validating the amendments is improper because, according to the petitioners, the amendments provide DWR “absolute power” to enter into “unbounded” contracts. The petitioners, however, failed to demonstrate how validating the amendments would give DWR absolute and unrestricted contracting authority, particularly given that the validation action is limited to contracts tied to or directly related to DWR bonds. Validating the amendments does not give DWR a “free pass” to base its decisionmaking on “paper water.”

Conclusions and Implications

At bottom, the petitioners’ CEQA arguments in this case rested on two mistaken assumptions: first, that the amendment would transform the SWP, possibly leading to expanded SWP operations and a Delta conveyance project; and second, that without the amendments, the existing SWP contracts would terminate. The court rejected these assumptions. Although future capital improvement projects within the SWP may benefit from bond funding under the amendments, such future projects are speculative and not a reasonably foreseeable consequence of the amendments. Furthermore, the court found that it is reasonable for DWR to assume that the terms of the existing contracts will continue, regardless of these particular amendments. The contracts’ evergreen provision authorizes the contractors to request the same amount of continued water service indefinitely and several contractors had already exercised that option. Furthermore, California’s residents and farms depend on continued delivery of SWP water, and the contractors have invested enormous sums in the SWP. The court agreed with DWR’s pragmatic view that it is more plausible to anticipate contract extensions than their termination.

Having rejected the underlying premises of the petitioners’ claims, the court applied straightforward analyses to the petitioners’ CEQA claims. Case law firmly establishes that when a project proposes the continuation of existing activities, the baseline includes those activities. Therefore, DWR properly included the current contracts, including current operation of the SWP, as part of the baseline. Impacts caused by the current operation of the SWP are not impacts of the proposed amendments.

The law is also clear that projects with independent utility need not be treated as part of a larger project under CEQA. Here, the amendments have utility independent of future improvements to the SWP, including a potential Delta conveyance project. Moreover, such future projects are not a consequence of the amendments, since such projects could proceed with or without the amendments. In addition, CEQA does not requires agencies to speculate about the consequences of future, uncertain activities.

– Laura M. Harris

First District Court of Appeal Holds Private Sand Mining is Not a Public Trust Use

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In a decision issued on remand from San Francisco Baykeeper Inc., v. State Lands Commission (2015) 242 Cal.App.4th 202 (Baykeeper I) the First District Court of Appeal, in San Francisco Baykeeper Inc. v. State Lands Commission (2018) 29 Cal.App.5th 562 (Baykeeper II) upheld the State Lands Commission’s (SLC’s) reapproval of leases authorizing a private company to dredge mine sand from sovereign land under the San Francisco Bay. Although SLC staff had erroneously concluded that sand mining is a public trust use, the appellate court held that substantial evidence in the record supported SLC’s finding that the mining leases would not impair the public trust.

In Baykeeper I, the Court of Appeal held that SLC violated the public trust doctrine by approving a sand mining project without considering whether the 10-year sand mining leases were a proper use of public trust lands. The court also held that SLC had complied with CEQA with respect to the leases. Based on SLC’s failure to consider the public trust, the court in Baykeeper I remanded the matter to the trial court, who issued a peremptory writ of mandate directing SLC to reconsider the sand mining project in light of the common public trust doctrine. In response, SLC staff prepared a report, which concluded that sand mining is a public trust use based upon waterborne commerce and because sand miners engage in navigation. The report also concluded that granting the mining leases would not impair the public right to use the lease parcels for public purposes. Staff reasoned that the mining leases were restricted in terms of duration and location, that the mining would be heavily regulated and supervised, and that previous leases had not caused any substantial impairment to the public trust. Based on the new analysis, the trial court discharged the writ of mandate. Petitioner and Appellant San Francisco Baykeeper, Inc. (Baykeeper) appealed that decision.

On appeal, Baykeeper and an amicus curiae group of law professors argued that SLC’s “overbroad” definition of a public trust use was inconsistent with Baykeeper I and case law interpreting the public trust doctrine. The Court of Appeal agreed, holding sand mining does not qualify as a public trust use of submerged lands. The court reasoned that if it were to agree with SLC, any private commercial use of trust property that involves a boat would constitute a trust use (and thus SLC could automatically authorize it pursuant to its authority to prefer one public trust use over another). This conception of what constitutes a public use is impermissibly overbroad because it would give the state too much discretion to allocate trust property without fulfilling its duty to preserve trust resources for public use and enjoyment.

Although the court held SLC staff was mistaken in concluding that sand mining qualifies as a public trust use, the court held that the record supported SLC’s conclusion that the mining leases in question would not interfere with the public trust. Baykeeper argued that the leases would impair the public trust by causing erosion at Ocean Beach and San Francisco Bar, both of which are public trust resources. Citing SLC’s CEQA findings on this issue, which the court upheld in Baykeeper I, the court held that substantial evidence supported SCL’s finding that the project would not have a significant impact related to coastal morphology.  In doing so, the court affirmed that SLC was entitled to incorporate its CEQA data into its subsequent public trust analysis. Baykeeper also argued that new scientific evidence shows a “definitive causal link” between sand mining and erosion, but the court held that the scientific disagreement between Baykeeper and SLC on the issue was not a ground for overturning a finding by SLC that is supported by substantial evidence. The court therefore upheld the trial court’s decision to discharge the writ of mandate.

(Laura M. Harris)

Third District Declares the State Has a Duty Under the Public Trust Doctrine to Regulate Groundwater Extractions That Affect Public Trust Resources

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In Environmental Law Foundation et al. v. State Water Resources Control Board  (2018) 26 Cal.App.5th 844, the Third District Court of Appeal upheld the trial court’s decision that Siskiyou County had a duty to consider the public trust doctrine in permitting wells that could adversely affect flows in the Scott River. The court also upheld the trial court’s determination that the State Water Resources Control Board had the authority and duty to “take some action” regarding groundwater extractions that affect uses of the Scott River protected by the public trust doctrine. Lastly, the court found that the Sustainable Groundwater Management Act (SGMA) neither supplanted, nor “fulfilled” the State’s duty to consider the public trust doctrine where groundwater extraction could affect protected uses.

In a declaratory relief action, plaintiffs the Environmental Law Foundation and others sought a declaration that Siskiyou County had a duty under the Public Trust Doctrine to consider whether groundwater extractions in the Scott River system could affect uses of the river protected by the doctrine. The County filed a cross-complaint seeking a declaration that the Water Board had neither the authority nor a duty to regulate groundwater extractions that could adversely affect uses of a river protected by the doctrine. To expedite an appeal, the parties stipulated to a set of 11 undisputed material facts, including that the Scott River is a navigable waterway for the purposes of the public trust doctrine, that extraction of groundwater interconnected with the Scott River system has an effect on surface flows, and that the County’s permitting and groundwater management programs regulate extraction of the interconnected groundwater.

The parties also agreed that the trial court had decided several questions of law relevant to the appeal. First, that the public trust doctrine applied where the extraction of groundwater in the Scott River system where the extraction affects public trust resources and uses in the Scott River. Second, that the County, in regulating the extraction of groundwater in the Scott River system, has a public trust duty to consider whether permitted wells will affect public trust resources and uses in the Scott River. Third, that neither the Groundwater Management Act, nor SGMA conflicted with the County’s duty under the public trust. Lastly, that the Board has both the authority and a duty under the public trust doctrine to regulate groundwater extractions that affect public trust uses in the Scott River. Both the trial court and the court of appeal concluded that the question of what the Board could or should do to regulate such groundwater was a question for another day.

On appeal, the County argued that the public trust doctrine does not apply to the extraction of groundwater, and as such, it did not have to consider the doctrine in issuing well permits and the Board could not regulate such extractions under the public trust doctrine. The court, after discussing the public trust doctrine in general, analogized the case before it to National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, rejecting the County’s argument that public trust doctrine discussion there was dicta. National Audubon, the court found, stood for the proposition that, regardless of whether the water being diverted or extracted is itself protected by the public trust doctrine, the determinative fact is the impact of the activity on public trust resources. In National Audubon, the California Supreme Court had found that diversion of water from streams not protected by the public trust doctrine, nevertheless triggered the doctrine when the diversions impacted protected uses in Mono Lake. The court found that the same logic applied in the case before it. The court rejected the County’s argument that, because the groundwater being extracted was not itself “navigable” and thus, not protected by the public trust doctrine, the Board had no authority or duty to regulate its extraction.

The court also rejected a series of arguments raised by the County and amici, including accusing the trial court of confusing the general police power with the public trust doctrine, and arguing that the State’s constitutional mandate for the reasonable use of water subsumes any duty to consider the public trust. The court found no confusion or conflict between the police power or the reasonable use mandate and the public trust doctrine. In exercising its police power, and in ensuring the reasonable use of water, the State and the County could consider the public trust doctrine and protect its resources whenever feasible. Lastly, the court found that the Board’s power to regulate actions affecting public trust resources was not limited by its statutory permitting authority.

Turning to SGMA, the court rejected the County’s argument that the legislature intended to occupy the field of groundwater regulation and “fulfilled” the State’s obligations under the public trust doctrine. The court stated that, in general, statutes do not supplant the common law, unless there is no rational basis for harmonizing potential conflicts between the two. The court agreed that an exception to general rule exists where the legislature occupies the field, but found, similar to the National Audubon court, that neither SGMA nor the public trust doctrine occupied the field, and both should be accommodated. The court also agreed with plaintiffs’ argument that SGMA is not as comprehensive a body of law as the appropriative rights system at issue in National Audubon. Nor was there evidence that the legislature intended SGMA to supplant or fulfill the public trust doctrine.

Lastly, the court addressed the County’s argument that, even if the State had a duty under the public trust doctrine, that duty did not fall to the County to fulfill. The court found that the general use of the term “state” can include counties, as subdivisions of the state. Further, such subdivisions share the State’s responsibilities under the public trust doctrine to protect covered resources. Nor did the legislature, in enacting SGMA, christen itself as the sole keeper of the public trust. The court rejected the County’s argument based on cases where the legislature “freed” certain tidelands from protections of the doctrine, because those cases involved the ownership of land, not the regulation of water. The court did not reach the question of whether the legislature could abrogate the Board’s authority under the public trust, but found that it had not done so through the enactment of SGMA.