Under California law the State of California, through the State Water Resource Control Board (“SWRCB”), regulates surface water diversions and underflow of rivers and streams flowing in known and definite channels. However, SWRCB currently has no authority to regulate pumping of other groundwater (“percolating groundwater”). A lawsuit pending in Sacramento seeks to force the SWRCB to assume regulatory control of percolating groundwater under the guise of the “Public Trust Doctrine.”
The Public Trust Doctrine, a legal principle dating back to Roman times, holds that the state has sovereign authority over certain resources in which the public has a common interest, including flowing waters, tidelands, and lakeshores. As stated by the California Supreme Court in a 1983 decision involving diversions from tributary streams to Mono Lake (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419), the Public Trust Doctrine “prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.” In the Mono Lake decision, the Supreme Court recognized the State’s “affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.”
In Environmental Law Foundation v. SWRCB (Sacramento County Superior Court Case No. 342010-80000583), an environmental group (“ELF”) is arguing that agricultural pumping of percolating groundwater in the Scott Valley in Siskiyou County should be regulated by the SWRCB under the Public Trust Doctrine. Pumping in the Scott Valley taps into an alluvial aquifer that, though not considered stream underflow, is hydrologically connected to the Scott River. ELF claims that increased pumping from the Scott Valley in recent years has contributed to declining fish populations in the Scott River and that SWRCB therefore has a legal duty under the Public Trust Doctrine to regulate groundwater pumping in the Scott Valley to protect public trust resources.
Though a defendant in the case, SWRCB admitted in its answer to ELF’s complaint that SWRCB has authority over percolating groundwater. Siskiyou County, also a defendant in ELF’s lawsuit, moved to change venue to Siskiyou County in part based on the potential of the case to significantly affect the property rights of land owners there. The trial court denied the County’s motion. The California Farm Bureau’s motion to intervene in the case was also denied. Both denials are currently being appealed.
This case has significant potential to impact groundwater rights in Monterey, Santa Cruz and San Benito Counties. In Monterey County, SWRCB already regulates the Carmel River alluvial aquifer based on its authority over stream underflow. However, the SWRCB does not currently regulate groundwater pumping in the Salinas River aquifer. That could radically change in the future, depending on the outcome of this case. For more information on this or related topics, contact David C. Sweigert at (831) 373-1241.
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