Sacramento Trial Court Extends the Public Trust Doctrine to Limit Groundwater Extraction

Water Law  

July 21, 2014

On July 15, in a relatively brief order, Judge Allen Sumner of the Sacramento County Superior Court held that the common law public trust doctrine applies to groundwater hydrologically connected to navigable waters where the extraction adversely affects the navigable waterway.  The court also held that counties, as subdivisions of the State, share in the responsibility for administering the trust and are bound by its mandates.  If the trial court’s decision is upheld on appeal, this case would mark the first significant extension of the public trust since the California Supreme Court’s 1983 decision in National Audubon and open the door to a flood of new 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, 259–60.)  In its landmark 1983 decision, the California Supreme Court in National Audubon Society v. Superior Court 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 p 446.)  The State Water Resources Control 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 446-47.)  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”).)

National Audubon appeared to signal a sea-change in regulation of the environment, and the plaintiff’s bar has attempted ever since to extend the doctrine beyond the scope of modern environmental regulations, albeit haphazardly.  (See, e.g., Envtl. Protection and Information Center v. Cal. Dep’t of Forestry (2008) 44 Cal.4th 459, 515 (attempting to apply the doctrine to protect the spotted owl from logging); Ctr. for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, 1368, 1371-72 (attempting to apply the doctrine to regulate avian mortality from wind farms).)  Time and again, however, the courts have limited its reach.  (Golden Feather Community Ass’n v Thermalito Irrig. Dist. (1989) 209 Cal.App.3d 1276 (declining to extend the doctrine to non-navigable waterways or artificial bodies of water); SWRCB Cases, 136 Cal.App.4th at 777–78 (State Board fulfilled its public trust duties in implementing a water quality control plan under state clean water law).)  Then, 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 Case

Eleven years after the appellate decision in Santa Teresa, the Sacramento County Superior Court addressed a similar legal question in Environmental Law Foundation v. State Water Resources Control Bd. (“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, brought an action against Siskiyou County (“County”) and the State Water Resources Control Board (“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 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 well-drilling permits until it complied with the public trust doctrine.

After hearing cross motions for judgment on the pleadings, the trial court on July 15 issued an order concluding 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.”  (Order, p. 8.)   Citing the California Supreme Court’s decision in National Audubon, the trial court in its order 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 brushed aside any factual distinctions between National Audubon and the instant case:  “Although the facts alleged here are different, it is a difference without a legal distinction. . . .  This case involves extraction of underground water.  But the result is allegedly the same – decreasing the flow of navigable waters harming public trust uses.”  (Order, p. 8.)  Thus, if extraction of groundwater adversely affects the public’s right to fish, raft, boat, use, enjoy, or preserve the Scott River in its natural state or as habitat for fish, the public trust doctrine will apply to protect those rights.

Separate from the issue of whether the public trust doctrine applies to groundwater, the County argued that Petitioners’ request for relief against the County should have been denied because the public trust doctrine does not impose any special duty on the County (or other local agencies).  While state law authorizes local agencies to adopt groundwater management plans and to manage groundwater resources within their jurisdictions, the public trust doctrine is administered first and foremost by the Legislature.  Here, because there had been no delegation of that power and the Legislature has not otherwise required local agencies to implement groundwater management plans, the County did not hold a duty to regulate groundwater under the public trust doctrine.  The trial court was not persuaded.  The court reasoned that because the administration of the public trust primarily rests with the State and because the County is a subdivision of the State, it “‘shares responsibility’ for administering the public trust.”  That responsibility, the court stated, could not be ignored.


Plaintiffs have long sought to extend National Audubon to groundwater and any other activities that may indirectly affect trust resources.  If upheld, the decision will embolden plaintiffs’ to seek to extend this common law doctrine further to other actions that involve potentially adverse effects on trust resources.  And given the broad, equitable nature of the doctrine, courts will be asked to second-guess agency decisions, creating greater uncertainty in an area already heavily regulated under state and federal environmental laws.  The decision may also add another layer of complexity to the ongoing discussions about the regulation of groundwater in California.  Many environmental groups have advocated for a stringent “effects” based test for groundwater, arguing that if the extraction of groundwater adversely affects a public trust use (e.g., wintering waterfowl), then there is a private right of action to enjoin such extractions of groundwater.  Given the loss of wetlands in California, and given the reliance of both urban and rural areas on groundwater extractions, particularly during droughts, the decision has the potential to substantially limit groundwater extractions across California.  In this way, the decision could make the already-difficult discussions about groundwater legislation even more difficult and could throw a monkey wrench into the effort to meet California’s needs for water in 2015 if it proves to be another dry year.