California Endangered Species Act (CESA), Ecosystem, Endangered Species Act (ESA), Groundwater, LADWP, Los Angeles Aqueduct, Mono Lake, Public Trust, Scott River, SWRCB

Should the public trust doctrine be extended to groundwater?

The public trust doctrine was extended in 1983 to protect the unique ecosystem and environment of Mono Lake.  Should it be extended once again — this time to protect coho salmon on the Scott River?

Mono Lake

Mono Lake. Courtesy of Aquafornia.

It’s no secret that California has serious problems when it comes to groundwater management.  Aquifers throughout the state are pumped into a state of overdraft, and yet the State is not equipped with sufficient authority to regulate pumping and facilitate recharge.  As demonstrated by the controversy that ensued over the 2009 legislative package, attempts to centralize management of groundwater resources become diluted and are whittled down into imperfect compromises.  Given this limited success in boosting State oversight of groundwater, I’ve always thought that the public trust doctrine seemed like a promising avenue toward regulation of at least some groundwater.  The courts might be able to pull off what the Legislature has been unable to do, but a test case was needed.

So I was intrigued to see that Pacific Coast Federation of Fishermen’s Associations (PCFFA) and the Environmental Law Foundation (ELF) have filed a lawsuit against the State Water Resources Control Board and Siskiyou County, based on that exact idea of using the public trust doctrine to regulate groundwater.  Surface flows in the Scott River basin, which are hydrologically interconnected to the groundwater resource, have been depleted as more groundwater has been pumped.  But the Scott River is also designated as critical habitat for the coho salmon, which receives protection under both the federal and state endangered species acts.  The coho is in bad shape; according to Fish and Game, just eighty-one individual fish returned to the Scott in 2009.

Although the State Board is authorized to carry out statutory adjudication of water rights in stream systems, that authority does not generally extend to adjudication of groundwater.  But the Legislature carved out a noteworthy exception for the Scott River system:

Water Code § 2500.5(b): The Legislature finds and declares that by reason of the geology and hydrology of the Scott River, it is necessary to include interconnected ground waters in any determination of the rights to the water of the Scott River as a foundation for a fair and effective judgment of such rights, and that it is necessary that the provisions of this section apply to the Scott River only.

In 1980, the State Board adjudicated water rights in the Scott River system, including groundwater pumping that occurred within 500 feet of the river; but pumping that occurred more than 500 feet away from the river was not subject to regulation.  PCFFA and ELF now assert that the State Board’s failure to regulate that more distant pumping is a violation of its continuing obligation under the public trust doctrine — because the pumping has depleted surface flows and hastened the decline of the coho salmon.  Instead of continuing to rely on the seemingly arbitrary 500 foot zone, they argue that the State Board should revisit the issue to determine more precisely the zone in which surface and groundwater are interconnected.  Armed with that more accurate information, the State Board can then regulate to ensure that the river supports a more robust fishery.

Mono Lake and the Public Trust

Since the Audubon case, Mono Lake has become synonymous with the public trust doctrine.  In 1983, the California Supreme Court curtailed the diversion of the Los Angeles Department of Water and Power (DWP).  DWP had been appropriating water from the freshwater streams that flowed into saline Mono Lake and then conveyed that freshwater to Southern California via the Los Angeles Aqueduct.  But the diversions lowered the water level of Mono Lake and threatened its peculiar ecosystem.

Prior to Audubon, the public trust doctrine applied to navigable waters.  Mono Lake itself is navigable, but the freshwater streams that feed the lake are not navigable.  Nonetheless, the Court in Audubon applied the public trust doctrine to the non-navigable streams because diverting from those streams jeopardized the public trust value of the navigable lake.  In other words, since Audubon, the public trust applies not just to navigable waterways, but also to non-navigable tributaries of navigable waterways.

This is the central premise underlying the Scott River case.  DWP diversion from the freshwater streams feeding into Mono Lake ultimately threatened the lake itself.  Similarly, groundwater pumping near the Scott River has depleted the river’s surface flow and helped reduce its fishery to a pittance.  If the public trust doctrine extends to supportive non-navigable streams, then should it also extend to supportive groundwater?  A decision to that effect would break new ground, since no case has suggested that groundwater use is subject to the public trust.  But a logical argument can be made that the public trust should extend to at least some groundwater.  Particularly in stream systems where navigable surface flows are interconnected with groundwater, there is a strong analogy to Audubon.

Looking Forward

That being said, this case was chosen carefully.  The Scott River is a unique system in which the State Board has the authority to adjudicate groundwater.  Even if the court does decide that the State Board is required under the public trust doctrine to regulate groundwater in the Scott River basin more proactively, it is questionable how much precedential value that decision would carry, given that the Scott River is uniquely situated.

Still, the underlying scientific reason for the Scott River legislative exception — that surface and groundwater are hydrologically interconnected — is not unique to the Scott River.  Rather, it is a scientific reality that is largely ignored by archaic legal distinctions between different categories of groundwater.  That begs the question as to whether this principle will eventually be extended to other stream systems.  It would be a big step that raises a number of potential problems.  But it could also help the State play a more assertive role in groundwater management — at least in those cases where pumping of groundwater adversely impacts surface flows.  We’re getting ahead of ourselves; but then again, this is a thought-provoking case.

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Discussion

4 thoughts on “Should the public trust doctrine be extended to groundwater?

  1. “Should the public trust be extended to groundwater?” differs from such a problem statement as “Should recognition and implementation of the public trust doctrine be extended to groundwater?”
    I appreciate the effort to be as concise as possible, but there are substantial semantic differences between the two problem statements above.
    I addressed this issue in a paper, entitled “When the Fifth Amendment Takings Clause Intersects the Public Trust Doctrine, Inconsistent Theories of Social Justice Collide” that I gave at the Takings Conference, held on May 12 & 13, 2006 at the University of California at Santa Barbara, hosted by Perry Shapiro, Ph.D., Professor of Economics.
    If the abstract, reproduced below, intrigues you, ask me for a copy of the paper. I will snail mail to to you at no charge. It is too large to email
    Willis A. (Bill) Frambach, J.D.
    waframbach@aol.com
    Abstract
    One view is that all human rights flow from the grace of the sovereign in the place where questions of rights arise. Another view is that human rights, such as those expressed in the U.S. Declaration of Independence, the French Declaration of the Rights of Man, the United Nations’ Universal Declaration of Human Rights and the writings of numerous respected authors are generally accepted expressions of human rights that do not flow from the grace of any earthly sovereign, although a sovereign may acknowledge that such rights exist and may enforce them. Our founding fathers risked being hanged for treason when they declared boldly to George III that no sovereign is empowered to extinguish mankind’s inalienable rights. Is that moral principle, which they imperiled their lives to assert, true today?
    The public trust doctrine, as a means of providing, protecting, and assuring certain human rights that do not flow from the grace of any earthly sovereign, limits the power of the sovereign to convey, or to have conveyed earlier, as private property some types of property, and it limits landowners’ uses of some properties, both irrespective of what documents of title say, imply, or omit.
    Real property law in the U.K., the U.S.A., and the other former British colonies is based upon the concept that initially the king owned all of the land, outright. If that idea is valid, it follows that deeds, patents, or grants from the king or from a successor sovereign convey to private owners a “bundle of rights” to the property that includes the right to use it as the owner chooses, subject only to the current sovereign’s police powers, notwithstanding contentions about the public trust doctrine.
    This author poses, tests, and invites tests of the hypothesis that when the human rights that underlie the public trust doctrine and “property rights,” based upon medieval English kings’ assertions and force of arms, conflict, “property rights” must recede.

    Posted by Willis A. (Bill) Frambach | 30 June 2010, 8:03 am
  2. Overall, this blog is well written, and informative. However, I question the following statement ..”Similarly, groundwater pumping near the Scott River has depleted the river’s surface flow and reduced its fishery to a pittance. ” Can you provide the data that supports the assertion the GW pumping has reduced the Scott River fisheries to a pittance? Ocean conditions,ocean and estuary harvest, and documented water quality issues in the Klamath River mainstem have all played a role in the current status of the fisheries in the Scott River, and Klamath Basin.

    Posted by Danielle | 23 August 2010, 1:25 pm
  3. Danielle: thanks for your comment. I take it as a given/standard assumption here that in complex systems, no result is caused by only one condition; rather, there’s an interplay of many factors. I didn’t intend by that sentence to suggest that groundwater pumping is the one and only cause of fishery decline; to avoid any future confusion, I edited “has reduced” to “has helped reduce.”

    In addition to depleting surface flows, the extraction of groundwater decreases accretion of cold groundwater into stream channels and raises water temperature. These are documented results that alter the natural environment and pose obstacles for coho salmon. Though not the only relevant factor, it is nonetheless a factor that we are in a position to do something about. The main point here is that it is beneficial to reevaluate whether the current regulation regime, now a few decades old, is still good enough to do the job.

    Posted by Eric | 23 August 2010, 5:39 pm

Trackbacks/Pingbacks

  1. Pingback: Is Siskiyou County’s hardline position on Scott River Valley groundwater justified? | Bay Delta Blog - 19 August 2010

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