New Lawsuit Tests Application of Public Trust Doctrine to Groundwater, Well Permits and SGMA

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On June 23rd, California Coastkeeper Alliance (CCKA) filed the lawsuit California Coastkeeper Alliance v. County of Sonoma (Case No. SCV-268718) in Sonoma County Superior Court. According to CCKA’s website, the suit was filed “to compel the County of Sonoma to consider and mitigate impacts to public trust resources caused by unregulated and wasteful groundwater pumping in the Russian River watershed.” The organization went on to state that, “This is an important move during this historic drought to protect salmon populations that are already at risk of extinction, and to protect surface water users already facing severe curtailments from being harmed further by unregulated and wasteful groundwater pumping.”

The crux of the claims in the case revolves around a 2018 ruling in Environmental Law Foundation v. State Water Resources Control Board, (2018) 26 Cal.App.5th 848, where the California Court of Appeal ruled that groundwater pumping that diminishes the volume or flow of water in a navigable surface stream may violate the public trust. This suit centered around whether the County of Siskiyou should  consider the public trust doctrine when issuing groundwater well permits where the extraction would impact the Scott River’s salmon fishery and recreational use. Until now, the rulings in Environmental Law Foundation v. State Water Resources Control Board have gone untested.

The new lawsuit involves issues related to the state’s Sustainable Groundwater Management Act (SGMA), which we have covered extensively. According to the Petition:

  • Affirming the trial court’s holdings, Environmental Law Foundation declared explicitly in 2018 that “the public trust doctrine applies if the extraction of groundwater adversely affects a navigable waterway.”
  • The court found that there is “no conflict” between the Groundwater Management Act of 1992 “authorizing the county to adopt a groundwater management plan” and the common law “requiring it to comply with the public trust doctrine.”
  • Similarly, the Environmental Law Foundation court held that the Sustainable Groundwater Management Act of 2014 (“SGMA”) does not “occupy the field” or “replace or fulfill public trust duties.” In enacting SGMA, “the Legislature went out of its way to state that SGMA supplements and does not alter the common law . . . they coexist and neither occupies the field to the exclusion of the other.”

According to a recent North Bay Business Journal article, the lawsuit ultimately “seeks a court order preventing Sonoma County from issuing any more drilling permits until officials enact new requirements for site-specific and watershed-wide assessments of the effects of well water extraction on the Russian River and its tributaries…A key concern in the Russian River watershed is over-pumping of wells during warm weather that then could degrade the surface flow to the point stretches of creeks and even the river run dry, leaving endangered coho salmon and other imperiled fish stranded in warming, disconnected pools.” The article goes on to note that “County Supervisor David Rabbitt said the lawsuit reflects a[n] unrealistic demand that the county resolve a long-standing question of science it’s attempting to work through deliberately. He and Lynda Hopkins, the board chairwoman, cited the formation of three basin-specific plans in the county under the state’s 2014 groundwater management law that will do more to address the impact of well drilling on both groundwater and surface water sustainability, contributing to future resiliency…Sonoma Water, working with the U.S. Geological Survey, the California State Water Resources Control Board and other partners, also is conducting a long-term study of the integrated groundwater and surface water flow in the Russian River basin to better model supply and demand.”

In light of current drought conditions, reduced water flows, and the need for groundwater to enhance local supply, whether and to what extent well permitting decisions must consider and possibly condition groundwater extractions under the public trust doctrine, will be of increasing importance in the future.

We will continue to track this lawsuit and other issues relating to SGMA on California Water Views. Stay tuned!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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