The Public Trust Doctrine, Groundwater & the Scott River Litigation Developments in the Public Trust Lewis & Clark Law School April 10, 2015 Richard Frank
National Audubon Society v. Superior Court, 33 Cal National Audubon Society v. Superior Court, 33 Cal.3d 419 (California Supreme Court 1983)
The Public Trust & Groundwater Judicial developments Legislative developments
The Public Trust & Groundwater: Judicial Developments
In re Water Use Permit Applications (“Waiahole Ditch” Decision) 9 P In re Water Use Permit Applications (“Waiahole Ditch” Decision) 9 P.3d 409 (Haw. 2000)
Robinson Township v. Commonwealth of Pennsylvania, 3 A. 3d 901 (Pa
City of Clifton v. Passaic Valley Water Commission 539 A. 2d 760 (N. J City of Clifton v. Passaic Valley Water Commission 539 A.2d 760 (N.J. Super. 1987) Passaic Falls, NJ
In re Omya Solid Waste Facility Final Certification (Vt In re Omya Solid Waste Facility Final Certification (Vt. Superior Court) [2011 WL 1055575]
Postema v. Pollution Control Hearings Bd. , 142 Wash. 2d 68 (Wash Postema v. Pollution Control Hearings Bd., 142 Wash. 2d 68 (Wash. Supreme Ct. 2000)
The Public Trust & Groundwater: Legislative Developments Vermont: Vermont Ann. Statutes, Title 10 §1390(5) New Hampshire: N.H. Rev. State. § 481:1
The Scott River Litigation
Siskiyou County
Klamath & Scott Rivers
Scott River
Scott River, then…
…and now
Environmental Law Foundation v. State Water Resources Control Bd Environmental Law Foundation v. State Water Resources Control Bd. (Sacramento County Superior Court) Filed in June 2010 Petitioners: Environmental Law Foundation; Pacific Coast Federation of Fishermen’s Associations; Institute for Fisheries Resources Respondents: Siskiyou County; State Water Resources Control Board
Key Factual Claims: Scott River is a navigable waterway Established hydrologic connection exists between surface flow & groundwater in Scott River Valley Scott River has experienced dramatically reduced flows in recent years due to expanded & unregulated groundwater pumping in Valley; resulting impacts include: Harm/destruction of migratory salmon in Scott River Harm/elimination of public recreational opportunities on Scott River
Key Legal Claims: SWRCB & County have authority under public trust to protect trust resources of Scott River region Both agencies have disclaimed authority or obligation to do so (re: groundwater pumping affecting Scott River surface flows) Court should issue order requiring Scott Valley groundwater to be managed consistent w/public trust doctrine, given deleterious impacts of groundwater pumping on Scott River flows County should be barred from issuing groundwater drilling permits in the meantime
Major Case Developments To Date County sought to change case venue to Siskiyou County—unsuccessful, but took 2 years SWRCB switched sides! (now agrees w/petitioners) Sacramento Superior Court ruled for petitioners: Public trust applies to hydrologically connected groundwater Public trust doctrine applies to Scott River groundwater insofar as groundwater affects surface river flows Trust protects fishing, boating, fish habitat, eco study County has affirmative obligations under trust doctrine
Major Case Developments—cont. Siskiyou County sought direct review by California Supreme Court; Court declined to take jurisdiction; case remains in trial court County sought rehearing, based on California Legislature’s 2014 passage of Sustainable Groundwater Management Act; Court denied rehearing in March 2015
Cf. Lake Beulah Mgmt. Dist. v. Wis. Dep’t of Natural Res. , 799 N. W Cf. Lake Beulah Mgmt. Dist. v. Wis. Dep’t of Natural Res., 799 N.W.2d 73 (Wis. 2011) Held: State officials have public trust- based duty to consider environmental impact of groundwater well on navigable waters of state
California’s Unprecedented Drought, Its 2014 Groundwater Legislation
Questions? Richard Frank Professor of Environmental Practice Director, California Environmental Law & Policy Center (530) 752-7422 rmfrank@ucdavis.edu