It has been a very busy summer, and I am still catching up on news. In tracking down various bits and pieces of water news from the past few weeks, I ran across a curious document — an official statement from the Siskiyou County Board of Supervisors (PDF), released at the end of July, regarding the Scott River basin groundwater lawsuit. I mentioned this case once before on this blog; the principal question raised is whether the public trust doctrine extends to groundwater that is hydrologically interconnected with surface water. The basic claim is that groundwater pumping has depleted river flows and contributed to the decline of coho salmon, and that the public trust doctrine should limit pumping in order to preserve the viability of the navigable waterway.
What is there to say about this response issued by the Siskiyou County supervisors? In many ways, it is a lackluster effort. The response leaves a bad taste in one’s mouth because it adopts a hardline position supported by some exaggerated or even inaccurate claims. It is worth dissecting a few parts of this response, point by point.
County: The public trust doctrine does not apply to groundwater.
This is Siskiyou County’s strongest argument. No court has yet held that pumping of groundwater could be curtailed to protect public trust resources. It thus falls upon PCFFA and ELF to justify why that should change. As discussed in a previous post, a good argument can be made that a change is appropriate — particularly for the Scott River, where the Legislature has already recognized that surface water and groundwater are two halves of the same resource, the rights to which must be jointly adjudicated. The depletion of a navigable waterway is indeed reminiscent of Audubon. Nonetheless, it would be a notable change if the court decides to extend the public trust doctrine to include interconnected groundwater.
County: The State Water Resources Control Board does not have the authority to regulate groundwater.
While it is generally true that the State Board is not authorized to regulate percolating groundwater, the Legislature made an exception for the Scott River. § 2500.5(b) of the Water Code provides that interconnected groundwater must be included in adjudications of the Scott River stream system. This very specific provision trumps the general rule. The State Board has the authority to conduct the adjudication, including a determination of groundwater rights.
County: The Legislature is responsible for regulating groundwater use. The plaintiffs in this case are improperly trying to override the Legislature by making the courts the “ultimate arbiter” of groundwater.
It appears that the supervisors of Siskiyou County have overlooked decades of litigation over water rights in groundwater basins throughout California. Courts have heard many groundwater cases and are an important vehicle for settling and adjudicating complicated groundwater disputes, in large part because the State Board has such limited power in this area.
In any event, the court’s authority over groundwater is not even the issue here, because the superior court has not been asked to identify and quantify groundwater rights in the Scott River basin. The relevant issue here is whether the public trust doctrine obligates the State Board to revisit its 1980 adjudication. It is the State Board that would ultimately quantify groundwater rights, acting under a unique legislative grant of authority.
County: The State Board already conducted an adjudication in 1980. Revisiting the issue and raising “new legal theories” undermines the “finality and certainty” of water rights, and is a taking of private property.
The public trust doctrine imposes a continuing obligation on the State to protect public trust resources. When an obligation is “continuing,” it implies that past decisions may need to be revisited in order to ensure that public trust resources remain adequately protected over time. But the Siskiyou County supervisors are basically saying that the State Board should only be allowed to do one adjudication of the Scott River basin for the rest of time, because revisiting the issue undermines “finality and certainty.” If the court agrees that the public trust doctrine applies, then the County’s position here is inconsistent with the idea of a “continuing” obligation.
It’s not surprising that the County would advance a property-taking assertion on behalf of its residents, who are up in arms fearing that they will be stripped of their water rights if they comply with permit terms. In reality, though, protesting “finality and certainty” of water rights only takes you so far in California. The State Board is required to ensure that California’s waters are put to reasonable use, and no property right can be held in water that is used unreasonably. What counts as “reasonable” depends on the circumstances and can change over time. The Board could determine, for instance, that a beneficial use is unreasonable if it causes excessive damage to public trust values — even if that very same beneficial use was deemed reasonable at an earlier date. If so, then curtailing the right to use water would not result in a taking.