Third Appellate District Extends Public Trust Doctrine to Groundwater, Finding That Counties Have a Duty to Administer the Trust in Issuing Ministerial Well Permits

Downey Brand LLP

On August 29, 2018, the Third Appellate District published its long-awaited opinion in Environmental Law Foundation v. State Water Resources Control Board (“ELF”), a case involving a challenge to Siskiyou County’s (“County”) issuance of well permits in the vicinity of the Scott River, a navigable waterway.[1]  What commenced as a relatively straightforward case concerning the application of the common law public trust doctrine to groundwater, culminated in an opinion authored by Presiding Justice Vance W. Raye that strays into a number of issues well beyond the core questions in the case, including how the recently-enacted Sustainable Groundwater Management Act (“SGMA”) interrelates with the public trust.  

While the opinion professes to be “extraordinarily narrow,” that contention belies the opinion’s broad implications.  For the first time, an appeals court has applied the public trust doctrine to the administration of groundwater in holding that counties, as subdivisions of the state, have a fiduciary duty to consider the public trust before authorizing the drilling of groundwater wells whose extractions might have an adverse impact on trust resources.  The Court also rejected the notion—presented by the County on appeal—that SGMA preempts or fulfills counties’ fiduciary duties to consider the trust.  This ruling marks a significant extension of the doctrine since the California Supreme Court’s 1983 decision in National Audubon Society v. Superior Court  (“National Audubon”) and has opened the door to a new frontier for litigation over groundwater administration in California.      

The Public Trust Doctrine

Upon its admission to the Union in 1850, California, like other states under the equal footing doctrine, received title to the state’s tidelands, submerged lands, and lands underlying inland navigable waters as trustee for the benefit of the people for certain public trust purposes.  (People v. California Fish Co. (1913) 166 Cal. 576, 584.)  Trust purposes were traditionally confined to navigation, commerce, and fisheries, but were later extended to include recreation and preservation of trust lands in their natural state.  (Marks v. Whitney (1971) 6 Cal.3d 251, 259–260.)  In its landmark 1983 decision, the California Supreme Court in National Audubon applied the public trust, for the first time, to limit the appropriation of water from navigable streams and non-navigable tributaries. ((1983) 33 Cal.3d 419.)  Specifically, the Court held that “[t]he state has an affirmative duty to take the public trust into account in the planning and allocation of water resources.”  (Id. at 446.)  The State Water Resources Control Board (“State Board”), the state agency in charge of administering water rights in California, may allocate water resources within its discretion and “despite foreseeable harm to public trust uses” only so long as it “considers” public trust resources and “preserves” those resources to the extent “feasible.”  (Id. at 446-447.)  What is feasible in a particular instance is a matter for the trustee agency to determine in light of the “public interest.”  (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 778 (“SWRCB Cases”).)

After National Audubon, many questions remained as to how the public trust doctrine would be applied in other circumstances, including two questions at-issue in the ELF case: (1) whether the doctrine could be applied to groundwater; and (2) whether subdivisions of the State (including counties) have parallel duties to administer the public trust.  In 2003, the Sixth Appellate District was faced with the direct question of whether the doctrine applies to groundwater.  (Santa Teresa Citizens Action Group v. City of San Jose (2003) 114 Cal.App.4th 689 (“Santa Teresa”).)  There, a local citizens group had challenged the city’s extension of recycled water service to a natural-gas-fired power plant on the grounds that contaminants remaining in the water would infiltrate to groundwater, violating the public trust doctrine.  (Id. at 695, 697.)  In addition to denying the claim for failure to make such showing, the court found that the public trust doctrine “has no direct application to groundwater.”  (Id. at 709.)

Environmental Law Foundation v. State Water Resources Control Board

Eleven years after the appellate decision in Santa Teresa, the Sacramento County Superior Court addressed a similar legal question in ELF, though coming to a different conclusion.  Petitioners, the Environmental Law Foundation, Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources (“Petitioners”), brought an action against the County and the State Board to limit new groundwater pumping near the Scott River.  Petitioners had complained that the groundwater was “hydrologically connected” to the Scott River, and that groundwater pumping in the area was in part responsible for decreased surface flows.  Those decreased flows, they alleged, had injured local fish populations and rendered the river less suitable for boating and other recreational activities.  Based on the County’s responsibility for issuing groundwater well drilling permits, Petitioners sought a declaration that the public trust doctrine applies to groundwater hydrologically connected to a navigable river and an injunction compelling the County to stop issuing permits until it complied with the public trust doctrine.

After hearing cross motions for judgment on the pleadings, the trial court ruled that while groundwater itself is not protected by the public trust doctrine, the doctrine nevertheless “protects navigable waters from harm caused by extraction of groundwater, where the groundwater is so connected to the navigable water that its extraction adversely affects public trust uses.”  Citing the California Supreme Court’s decision in National Audubon, the trial court in its ruling recited that the doctrine extends to diversions from non-navigable streams because those diversions result in adverse effects on the public trust values of navigable waters, there the “scenic beauty” and “ecological values” of Mono Lake.

The trial court also held that the County, in issuing permits under the construction standards set forth in its well ordinance, had a duty to consider the public trust before issuing well permits.  The court reasoned that, because the administration of the public trust primarily rests with the State, the County, as a subdivision of the State, “‘shares responsibility’ for administering the public trust.”  That responsibility, the court held, could not be ignored.

Third Appellate District Ruling

At trial and again on appeal, ELF argued that the County and the State Board had an affirmative duty under the public trust doctrine to protect the Scott River from impacts caused by groundwater extractions.  The Third Appellate District agreed, to the extent trust impacts are implicated in a decision:

A county is a legal subdivision of the state and references to the ‘state’ may include counties.  (Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166, 175-176.)  Although the state as sovereign is primarily responsible for administration of the trust, the county, as a subdivision of the state, shares responsibility for administering the public trust and ‘may not approve of destructive activities without giving due regard to the preservation of those resources.’  (Center for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, 1370, fn. 19.)

(Opinion, p. 24.)  The Third District had also requested supplemental briefing by the parties to explore how SGMA might interact with a public trust duty that is presumed to exist.  Oral arguments focused almost entirely on the issue—raised by the County for the first time on appeal—of whether SGMA subsumes the County and State Board’s common law duties to administer the trust.

Although the Court’s opinion claims to be narrowly tailored to the issues presented, portions appear to have greater implications for counties and other subdivision agencies of the State in the future.  For instance, the Court disregarded arguments made by the County and certain amici that it is primarily the Legislature’s duty, not the courts, to define the contours of trust duties, and that courts should not second-guess the Legislature’s conclusive judgment.  (Opinion, p. 25, discussing City of Long Beach v. Mansell (1970) 3 Cal.3d 462 and Mallon v. City of Long Beach (1955) 44 Cal.2d 199, which both recognized the Legislature’s ability to curtail attempts to expand the reach of the public trust doctrine.)  Despite those cases, the Court limited their application, holding that the regulation of water, as opposed to ownership of tidelands, is a different matter altogether.

The Court also confirmed “the existence, vel non, of the [State] Board’s authority and duty under the public trust doctrine to take some action regarding groundwater extractions” where public trust waters are threatened.  (Opinion, p. 3.)  However, the central questions of what actions may trigger those duties and what actions could be taken to remedy the impacts, are left unanswered.  By the Court’s own words: “The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violates the public trust.”  (Id. at 14.)


The Third Appellate District has extended National Audubon to the issuance of groundwater well permits and possibly any other “destructive activities” that may directly or indirectly affect trust resources.  Given the broad, equitable nature of the doctrine, courts will be asked to second-guess agency decisions, creating greater uncertainty in areas that may already be heavily regulated under state and federal environmental laws.

[1] Downey Brand attorneys Christian Marsh, Arielle Harris, and Austin Cho represented Amici Curiae California Association of Sanitation Agencies, California State Association of Counties, and League of California Cities in support of Appellant County of Siskiyou.

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