A regular reader and very good friend took umbrage at a comment I made suggesting that California might be 'insane' when it comes to its failure to recognize that surface water and groundwater are connected. Here is my comment, made in response to a comment Laurel Lacher made to my recent blog post:
Thanks for your comment, Laurel - much appreciated! We're not quite as 'insane' as Arizona. One thing to remember - unlike Arizona and California but like your eastern neighbor New Mexico - Oregon legally recognizes the connection between surface water and groundwater. That makes a big difference when it comes to managing groundwater. Let's hope both our states (and California) get our acts together!
And my California friend's email comment:
As a native Californian, I must take issue with your broad brush comment about CA law relating to GW and SW. (December 29, 2016 Water Wired). In his July 2014 ruling Judge Allen Sumner stated that groundwater could be regulated by impacts on surface water under the public trust doctrine. So sometimes California law sees the connection, and sometimes we are not "insane". Don't forget we did decide to regulate groundwater in September 2014 (SGMA).
I don't think California has changed its law to recognize the SW-GW connection,
and I do realize that California passed a law to regulate groundwater. [Note added on 10 January 2017: Michael Kiparsky tells me that the 2014 Sustainable Groundwater Management Act changes California water law to recognize surface water - groundwater interactions. Awsome!] But my friend is right about Judge Allen Sumner's decision, and he sent a copy:
The decision is relatively lucid, given most I've attempted to fathom. It involved groundwater pumping in the Scott River Valley in the Klamath River Basin and the claim that pumping was impairing the flow in the river.
Here is the introduction to Judge Sumner's decision::
Petitioners the Environmental Law Foundation, Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources bring this an action against Respondents County of Siskiyou ("County") and the State Water Resources Board ("Board") raising an issue of first impression: Does the public trust doctrine apply to groundwater hydrologically connected to a navigable river? Petitioners seek a declaration it does. They also seek a writ of mandate or injunction compelling the County to stop issuing well drilling permits until it complies with its duties under the public trust doctrine. No affirmative relief is sought against the Board - just declaratory relief but not specific to the Board.
In its answer to the petition, the County asserted four affirmative defenses: (1) the public trust doctrine does not apply to groundwater; (2) the Board has no authority to regulate groundwater under the public trust doctrine; (3) the County is not required to regulate groundwater under the public trust doctrine; and (4) the public trust doctrine does not apply in this case because a 1980 decree by the Siskiyou County Superior Court adjudicated all rights to the groundwater at issue.
Petitioners and the County filed cross-motions for judgment on the pleadings, seeking a ruling on the County's affirmative defenses. The cross-motions raise two legal issues: Does the public trust doctrine apply to the facts alleged? If so, does it impose any duties on the County that can be enforced by writ of mandate or injunction?
As explained below, the court concludes the public trust doctrine protects navigable waterways from harm caused by groundwater extraction, and Petitioners state facts sufficient to entitle them to judgment so declaring. The court also concludes the County, as a subdivision of the State, is required to consider the public trust when it issues well drilling permits. Again, Petitioners state facts sufficient to entitle them to a writ or injunction compelling the County to do so. The court thus grants Petitioners' motion for judgment on the pleadings and denies the County's motion.
Although Petitioners are entitled to judgment on three of the County's affirmative defenses they are not entitled to judgment against the County factual allegations in the petition. Petitioners must still prove those allegations to prevail on the merits. This ruling thus does not dispose of this case; it simply allows the case to proceed beyond the pleading stage.
Nor does this ruling address the Board's authority, vel non, to regulate groundwater under the public trust doctrine. Petitioners seek no affirmative relief against the Board or declaratory relief specific to the Board. Contrary to Petitioners' assertion, the declaratory relief sought here would not "settle" the question of the Board's authority. (Petitioner's Resp. to Court's Req. at 4:13-14.) Moreover, neither motion for judgment on the pleadings is brought by, or asserted against, the Board. The County raises the Board's lack of authority as an affirmative defense. However, the Board's authority is not relevant to whether the petition states facts sufficient to constitute a cause of action against the County. It is thus unnecessary to address the Board's authority in ruling on the cross-motions for judgment on the pleadings.
The court thus finds the public trust doctrine 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.
Groundwater as a public trust? Not really - see the bottom of page 8:
This formulation is slightly different than the declaration Petifioners seek. Pefitioners request a declaration groundwater hydrologically connected to navigable surface flows is protected by the public trust doctrine. However, the court does not find groundwater itself is a resource protected by the public trust doctrine.
Interesting take on the public trust doctrine, which most of my water lawyer friends tell me does not apply to groundwater. For a moment I thought California had done something really novel...Nahhhhh....
So I stand corrected, and advise you to read the court decision. It's really insane!
"The minute you have a back-up plan, you've admitted you're not going to succeed." - Elizabeth Holmes, Theranos Founder and CEO