County responds to groundwater lawsuit 

The statement comes after a June 23 petition from the Environmental Law Foundation (ELF) and Pacific Coast Federation of Fishermen’s Associations (PCFFA) requesting that the Superior Court of the State of California order the State Water Resources Control Board (WCB) and Siskiyou County to cease the “issuance or renewal of groundwater extraction permits or well drilling permits within the Scott River sub-basin until such time as they are not in violation of their public trust duties.”

Under the Public Trust Doctrine, navigable waters are said to be held in public ownership, based on principles dating back to ancient Rome. In the petition, ELF and PCFFA argue that through a failure to properly monitor certain groundwater use in the valley, the county and WCB are in violation of the public trust by allowing groundwater extraction in absence of complete knowledge of how the river and groundwater are linked.

Specifically at issue in the petition is the Scott Valley’s 1980 water rights adjudication, or settlement through the judicial process, in which the creation of new wells must be performed “at least 500 feet from the Scott River or at the most distant point from the river on the land that overlies the interconnected groundwater, whichever is less.”

Further provided in the adjudication is a description of “interconnected groundwater” as water “so closely and freely connected with the surface flows of the Scott River that any extraction of such ground water causes a reduction in the surface flow in the Scott River prior to the end of a current irrigation season.”

The petitioners allege that without a “detailed or comprehensive scientific study to determine whether excessive groundwater pumping, and consequent aquifer depletion, is occurring within the Scott River sub-basin,” the county cannot know what effects, if any, that pumping may be having on the river and the wildlife it supports.

It is argued in the county’s statement, however, that the PTD does not apply to groundwater use and that the petitioners are trying to modify the 1980 water rights adjudication.

“The lawsuit appears to be a test case for deciding whether the public trust doctrine applies to groundwater, and whether the State Board and local agencies must regulate groundwater uses in accordance with public trust principles,” the county’s statement reads.

While stating that previous court decisions have extended the PTD to tributaries to surface waters, the county states that the courts have not stated that the doctrine extends to groundwater, citing a 2003 decision in Santa Teresa Citizen Action Group v. City of  San Jose,  in which the author of the opinion states that “the doctrine has no direct application to groundwater sources.” 

The 1980 adjudication states that all owners of land overlying interconnected groundwater have a first priority right to pump water “provided, that the amount per acre shall not exceed the amount required for irrigation of such land.”

The county argues that the petitioners’ request for the court to compel the cessation of the issuance or renewal of groundwater extraction permits or well drilling permits within the Scott River sub-basin is an attempt to modify the 1980 adjudication.

“The courts have held, however, that finally-adjudicated water rights are entitled to finality and certainty, and cannot be challenged by new legal theories not presented during the adjudications,” the county states.

The county also argues that use of the PTD to modify existing groundwater rights would constitute an illegal taking of private property rights under the United States Constitution.

The petitioners request that the court find that groundwater that is hydrologically connected to navigable surface flows protected by the PTD be managed and protected in the same manner as the surface flows and that a failure to do so is a violation of the PTD.

The petitioners also request that the the WCB determine the current zone of hydrological interconnectedness between groundwater and surface flows of the Scott River, which the petitioners believe to extend beyond the 500-foot zone in the adjudication, as well as implement a monitoring and review program for groundwater in the basin.

The county, through a partnership with the University of California, Davis, has a groundwater study plan that lays out the design for a study of the interconnectedness of groundwater and surface flows, estimated in 2008 to take approximately eight years to complete two of the three phases.

“Siskiyou County intends to vigorously defend the lawsuit by arguing that the public trust doctrine does not apply to groundwater, and that the courts cannot apply public trust principles to modify existing water rights decrees, or to modify rights granted under the decrees,” the county states. “ ... Their theory, which has never been adopted by any court, is not only inconsistent with constitutional principles separating the legislative and judicial powers, but is also inconsistent with the public trust doctrine itself, which provides that the legislative branch and not judicial branch is responsible for groundwater regulation.”

The petitioners argue that the fish in the Scott River and the river itself are public trust resources, asking that the court see the decision in National Audubon Society v. Superior Court, which extended the PTD to non-navigable tributaries, as an indication that the state has “an ongoing and continuing duty ... to manage and regulate these non-navigable tributaries to protect these public trust resources.”

Justice Allen Broussard, in the opinion on the Audubon case, states that that case brought together “for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes.