The Sacramento County Superior Court has entered final judgment in Environmental Law Foundation et al. v. State Water Resources Control Board and County of Siskiyou, a case asking whether the public trust doctrine applies to groundwater pumping. The court’s detailed ruling (dated August 4, 2016, hereafter: Ruling) supporting the judgment found that: 1) Siskiyou County had a public trust duty to consider whether groundwater wells it permitted would affect public trust resources and uses in the Scott River and to protect those public trust uses when feasible; and, 2) the State Water Resources Control Board (SWRCB) has the authority and duty under the public trust doctrine to regulate extractions of groundwater that affect public trust uses in the Scott River. The case is significant in that it is yet another marker on the road toward likely increased scrutiny, regulation, and conflict over groundwater rights in California, and if the court’s judgment is appealed, it will be a vehicle for an appellate court to weigh in. [Environmental Law Foundation et al. v. State Water Resources Control Board and County of Siskiyou, Case No. 34-2010-80000583 (Sacramento Super Ct. Aug. 22, 2016).]

ELF v. Siskiyou could herald the advent of increased scrutiny and conflict over groundwater and public trust resources, especially if affirmed on appeal (if appealed). Given the ongoing drought, climate change, and California’s significant use of groundwater, instances of potential adverse effects of groundwater pumping on interconnected, public trust surface waters will likely increase. Similarly, the state’s new Sustainable Groundwater Management Act expressly identifies adverse effects to interconnected surface waters as a management factor. Not to be lost, however, is the fact that the parties in this case stipulated to all the necessary facts, including essentially admitting to adverse effects to public trust resources from the groundwater pumping. Those issues are often the most difficult to prove at trial and would normally involve expert witnesses and complicated issues of hydrogeology and biology, among others. Public trust suits targeting other counties and public agencies that issue permits for wells could devolve into expensive, lengthy proceedings regarding the degree of interconnection between pumping and surface waters and the causal and proximate connection between pumping and alleged adverse effects to public trust resources.

(Hanspeter Walter, Daniel O’Hanlon)