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.