In the News


Scott River Decision Favors Public Trust Protection for Groundwater


Groundwater pumping in California took a step closer to possibly being regulated under the Public Trust Doctrine after a Sacramento Superior Court judge’s July ruling regarding pumping near the Scott River along the state’s northern edge. “If pumping groundwater impairs the public’s right to use a navigable water- way for trust purposes, there is no sound reason in law or policy why the public trust doctrine should not apply,” Judge Allen Sumner ruled July 14 in the case, Environmental Law Foundation v. State Water Resources Control Board. The Environmental Law Foundation (ELF) had requested that the court fi nd that groundwater is protected under the Public Trust Doctrine, as it relates to pumping near the Scott River in Siskiyou County. So much groundwater is taken in the Scott River Valley that the river often goes dry. The lawsuit was brought to protect the fi sh, ecosystem, and recreational resources in the river. The Public Trust Doctrine protects the waters of the state for everyone and can be used to modify a water right if necessary. “This is a monumental decision, and changes everything about groundwater in California,” said ELF President James Wheaton, in a statement. “California – the only western state that does not regulate its precious groundwater – is one step closer to the modern world and protecting this vital resource.” Sumner’s ruling was predicated on the California Supreme Court’s 1983


ruling in National Audubon Society v. Superior Court, which found the Public Trust Doctrine protected Mono Lake from being harmed by adjacent water diversions by the Los Angeles Department of Water and Power.


“Although the facts alleged here are different, it is a difference without a legal distinction,” Sumner wrote. “National Audubon involved extraction of water from non-navigable surface streams. [ELF v. SWRCB] involves extraction of under- ground water. But the result is allegedly the same – decreasing the fl ow of navigable waters [sic] harming public trust uses.” Continuing, Sumner states, “The court thus fi nds the public trust doc-


trine 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.”


Commenting on the decision, the Sacramento law fi rm Downey Brand


said it refl ects a longtime movement to apply Public Trust Doctrine protection to groundwater and “may also add another layer of complexity” to the ongoing discussions about its regulation.


“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,” according to Downey Brand. “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 diffi cult discussions about groundwater legislation even more diffi cult 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.” ❖


– Gary Pitzer Read our 2013 Annual Report July/August 2014 3


Whe e We Are August 22


San Bernardino County Water Conference Jennifer Bowles, Panel Moderator San Bernardino, CA


September 19 Project WET Facilitators’ Training


Brian Brown, California Project WET Coordinator Woodland, CA


October 2-3 Water Education Foundation Water 101 Workshop


Jennifer Bowles, Executive Director Rancho Cucamonga, CA


October 9-10 Water Education Foundation Russian River Tour Renée Cashmere, Tour Director Santa Rosa, CA


October 11 Project WET Workshop


Brian Brown, California Project WET Coordinator Carmichael, CA


October 11


National Association of Geoscience Teachers


Sue McClurg, Speaker Sacramento, CA


October 14 Santa Ana River Watershed Conference


Sponsored by Santa Ana Watershed Project Authority


Coordinated by Water Education Foundation Riverside, CA


October 22-24 Water Education Foundation Northern California Tour Renée Cashmere, Tour Director Sacramento, CA


November 6-7 Water Education Foundation San Joaquin River Restoration Tour Renée Cashmere, tour director Fresno, CA


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