Third Appellate District’s “narrow” opinion could have far reaching impacts on SGMA, groundwater rights, and groundwater extractions.

In Environmental Law Foundation et al., v. State Water Resources Control Board (“Environmental Law Foundation”) the Third Appellate District of the State of California (the “Court”) held (1) the Public Trust Doctrine applies to the extraction of groundwater that adversely impacts a navigable waterway; and (2) the State Legislature did not intend to occupy the field of groundwater management by enacting the Sustainable Groundwater Management Act (“SGMA”) in 2014.

In determining that the Public Trust Doctrine applies to the extraction of navigable waterways the Court relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 (“Audubon”). Finding Audubon to be precedent, the Court found the extraction of groundwater was akin to the appropriation of water from tributaries of navigable waterways, as was at issue in Audubon in that:

·         the diversion of the water caused the level of the lake to drop, thereby imperiling its scenic beauty and ecological value, such as groundwater extraction can cause the level of the Scott River to drop and cause the same harm;

·         the values underlying the Legislative mandate regarding the water rights system at issue in Audubon (appropriative water rights) collided with the Public Trust Doctrine, but both systems of legal thought could be implemented together, just as SGMA can be implemented together with the Public Trust Doctrine;

·         whether or not groundwater is navigable is not the issue; tributaries in Audubon were not navigable water ways, the issue is whether the conduct at issue, diversion or extraction, will adversely impact a public trust resource such as a navigable waterway.

In determining that SGMA does not occupy the filed of groundwater management such that the County and Board do not have fiduciary duties under the Public Trust Doctrine with respect to the extraction of groundwater, the Court, again relying heavily on Audubon, found:

·         just as there was no incongruity between the appropriative water rights system and the Public Trust Doctrine in Audubon, there is no incongruity between SGMA and the Public Trust Doctrine;

·         SGMA, like the appropriative water rights system, can be harmonized with the Public Trust Doctrine.

Moreover, the Court found no evidence of legislative intent that SGMA was to replace the Public Trust Doctrine. Instead the Court found that the provisions of SGMA:

·         reflect a legislative desire not to interfere with existing law (such as the common law Public Trust Doctrine);

·         SGMA is not as comprehensive as the appropriative water rights system in place, which Audubon found did not eradicate Public Trust Doctrine considerations;

·         do not subject all groundwater basins to its regulation, such as adjudicated basins;

·         many requirements of SGMA do not take effect for several years.

Although the Court considers its decision narrow because it addresses a navigable stream system which includes interconnected groundwater basins, the decision lays the foundation for additional litigation. A person who feels that a Groundwater Sustainability Agency ("GSA") is not adequately taking the environment into account in its Groundwater Sustainability Plans ("GSP") can rely on this case to initiate costly litigation and argue the groundwater extractions to be managed impact a public trust resource: a bird sanctuary, wildlife preserve, or the surface levels of a navigable waterway; and attempt to have a Court order more stringent restrictions on groundwater extraction than would have otherwise been set forth in the GSP.