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California Court of Appeal Holds Public Trust Doctrine Applies to Extraction of Groundwater Affecting a Navigable Stream—SGMA Does Not Occupy the Field

The Third District Court of Appeal has ruled that the public trust doctrine imposes a duty on the state and its political subdivisions to consider the potential impact of groundwater extraction on navigable streams, and that the Sustainable Groundwater Management Act (SGMA) has not so occupied the field as to eliminate that duty. The court cautioned that its ruling was “extraordinarily narrow” given that there was no challenge to any specific action or failure to act by the state agency or the county involved in the case, and no determination that they had violated their obligations under the public trust doctrine. The court thus declined to specifically define what they must do to satisfy their common law public trust duty. That issue is left for another day. [Environmental Law Foundation v. State Water Resources Control Board, ___Cal.App.5th___, Case No. C083239 (3rd Dist. Aug. 29, 2018).]


The plaintiffs in the case alleged that the County of Siskiyou (County) was failing to fulfill its obligations under the public trust doctrine when issuing permits for the extraction of groundwater in the Scott River Valley, a beautiful valley in the northernmost reaches of California. According to plaintiffs, pumping from wells permitted by the County was reducing flows in the Scott River, and adversely affecting public trust resources in the Scott River, including salmon. The County later joined the State Water Resources Control Board (SWRCB or Board) in the action, seeking a declaration that the Board had no authority to regulate groundwater under the public trust doctrine.

In several pretrial motions the trial court ruled that the County’s well permitting activity is subject to the public trust doctrine if it affects public trust resources in the Scott River, and that the Sustainable Groundwater Management Act, Water Code § 10720 et seq. did not supplant its common law public trust duty. The trial court further ruled that the SWRCB had the authority and duty under the public trust doctrine to regulate extractions of groundwater that affect public trust uses in the Scott River. In lieu of trial the parties agreed to a set of stipulated facts related to these legal rulings, and dismissed all claims except claims for declaratory relief on these issues. The County then appealed.

The Court of Appeal’s Decision

National Audubon and Groundwater Extractions

The Court of Appeal framed two issues for decision:

•. . .whether the County and Board have common law fiduciary duties to consider the potential adverse impact of groundwater extraction on the Scott River, a public trust resource, when issuing well permits and if so, whether SGMA on its face obliterates that duty.

The court answered the first question yes, and the second question no. The court found the answer to both questions in the seminal decision on the application of the public trust to water resources, National Audubon Society v. Superior Court,33 Cal.3d 419 (1983).

Regarding the first issue, the County argued the public trust doctrine does not apply to groundwater extractions, because groundwater is not navigable. The court found that National Audubon teaches that the navigability of the source is not dispositive. Rather, “the determinative fact is the impact of the activity on the public trust resource.” In National Audubon, the Supreme Court had found that diversions by the City of Los Angeles from non-navigable tributaries to Mono Lake were subject to the public trust doctrine, because of the impact of those diversions on Mono Lake, which is navigable. By the same reasoning, the court here ruled that extractions of groundwater that impact the navigable Scott River are subject to the public trust. The court also rejected arguments that the public trust was subsumed by the reasonable use requirement of Article X, section 2 of the California Constitution, and that the County was not subject to a public trust duty because it is not the State.

National Audubon and SGMA

In answering the second issue, whether SGMA had occupied the field of groundwater regulation and left no room for application of the common law public trust doctrine, the court again looked to National Audubonfor guidance. In National Audubonthe Supreme Court analyzed the relationship between the public trust doctrine and the statutory water rights permitting and licensing system. In National Audubonthe Supreme Court ruled that neither body of law trumped the other, and both should be accommodated. Applying that reasoning to SGMA, the court here ruled that if:

•. . .the expansive and historically rooted appropriative rights system in California did not subsume or eliminate the public trust doctrine in the state, then certainly SGMA, a more narrowly tailored piece of legislation, can also accommodate the perpetuation of the public trust doctrine.

The court certified its opinion for publication. At the time this article was prepared, the time for seeking review by the California Supreme Court had not yet passed.

Conclusion and Implications

This decision establishes that the state, or a county, is subject to a duty under the public trust doctrine to consider the impact of its approval of groundwater extraction where that extraction will affect a body of water that is navigable. It also establishes that SGMA does not foreclose application of that duty. The decision does nothold that the SWRCB or the County here violated their public trust obligations related to approval or regulation of groundwater extraction in the Scott Valley. Nor does it suggest that the public trust doctrine prohibits any adverse impact to the Scott River from groundwater extraction. Rather, consistent with National Audubon, going forward any such impact must be taken into account by the state and the County, together with the need for that groundwater to support other beneficial uses.

For public agencies involved in approving or regulating use of groundwater resources, the case highlights a potential ground for challenge to their decisions, and may lead to changes in how such decisions are made. Approval of well permits has historically been viewed as a ministerial act, one not subject to review under the California Environmental Quality Act, although appellate courts have recently issued differing decisions on its application. Compare California Water Impact Networkv. County of San Luis Obispo,25 Cal.App.5th 666 (2018) with Protect Our Water & Envtl. Res. v. Stanislaus Cty., F073634, 2018 Cal.App. Unpub. LEXIS 5791 (August 24, 2018). This ruling regarding the public trust doctrine is likely to further encourage claims that counties, and perhaps other local public agencies, have the discretion and obligation to limit or condition well permits.

The decision does not define the contours of what the state or counties must do to satisfy a public trust duty relating to extraction of groundwater. The court expressly declined to opine on that issue, given the procedural posture under which the case came before it. What is required of the state or a county to satisfy the duty will doubtless be the subject of future cases. The court’s decision is available online at:

(Dan O’Hanlon)