Tuesday, August 5, 2014

Implications of the Scott River/Public Trust Doctrine/Groundwater Case

Scott riverSeveral weeks ago, a Superior Court in Sacramento County, California issued an important public trust doctrine decision.  The case concerned the Scott River, which flows through the coast ranges of northern California.  According to the plaintiffs, groundwater pumping was depleting flows in the river and harming its fish.  The plaintiffs argued that because of these harms, Siskiyou County was obligated to consider the public trust doctrine before issuing well drilling permits.  The county defended the case by arguing, among other things, that the public trust doctrine does not apply to tributary groundwater.

In its recent decision, the court decided that legal question in favor of the plaintiffs.  The case isn’t over; the plaintiffs still need to prove their factual allegations of harm.  But the court’s decision was still a big win for the plaintiffs.  While the court did not find that the groundwater itself is a public trust resource, it concluded that the public trust doctrine does apply to groundwater withdrawals that impact a surface water stream.  Consequently, according to the court, Siskiyou County was obliged to consider the public trust doctrine when it permitted irrigators to drill and operate wells.

In a recent post at Legal Planet, Holly Doremus has described the case in more detail.  This post raises a different question: what impact would the court’s holding, if it stands (as I think it should and will), have on groundwater regulation in California?  One might assume the answer is simple: applying the public trust doctrine to groundwater pumping will lead to increased regulatory control of groundwater use, and to increased environmental protection of surface water systems that depend upon groundwater recharge.  And that is a possibility.  But the reality may be more complex, and below are a few other potential outcomes:

-          The case leads to reduced regulation of groundwater use.  This may sound like an odd result, until one considers this basic fact: while local governments in California clearly have the ability to regulate groundwater use, see Baldwin v. County of Tehama, 36 Cal. Rptr. 2d 886 (1994), they don’t have a legal obligation to do so.  Similarly, California’s State Water Resources Control Board, which arguably has the ability to regulate groundwater use, hasn’t actually exercised that regulatory authority.  This all may change soon, as Rick Frank recently pointed out in another Legal Planet post.  But so long as regulating groundwater is something governmental entities may decline to do, their decision-makers might think, “well, if we regulate, we have to worry about the public trust doctrine, and if we don’t, the public trust doctrine is someone else’s headache.  So let’s not regulate.”

Of course, if a court holds that the public trust doctrine not only obligates government agencies to consider public trust values when they allocate groundwater, but also to create groundwater regulatory programs, that particular perverse incentive would vanish.  But the latter holding would be much bolder than the former, and I would be surprised to see it emerge from the litigation.

-          The case leads to increased regulation of new groundwater users but doesn’t change circumstances for existing users.  This also may sound surprising, because one of the most-heralded aspects of California’s public trust doctrine is its potential, at least in theory, to change existing water rights.  But in a 2012 study, I found that for surface water users, the doctrine has hardly ever been used this way.  I found that it did operate—in conjunction with many other environmental laws—as a constraint on new water users.  But existing water users had generally been left alone.

-          The case changes little, because courts view compliance with other California environmental laws as satisfying the public trust doctrine.  The extent to which public trust doctrine analysis is distinct, as a legal matter, from other California and federal environmental requirements has been an issue in some recent litigation.  As a practical matter, in my 2012 study I found only limited evidence that public trust protections had exceeded those that would have occurred anyway under other environmental laws.

-          The case does lead to important changes in groundwater management.  This could happen because many local government entities in California do regulate groundwater, and because their regulatory approaches are allowing many impacts that slip through the cracks of other California environmental laws.  Perhaps the public trust doctrine will be an important gap-filler.  Where local governments already are motivated to address groundwater impacts, the application of the public trust doctrine also might provide some additional support for the exercises of regulatory authority.  These, of course, are the outcomes the plaintiffs are hoping for.

So which result will happen?  My timid prediction is: all of the above.  California groundwater management is presently such a hodge-podge, with many different entities involved and many others choosing to stay out, that all of these reactions are likely to occur in some places. 

 -Dave Owen

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