Now, a state appellate court has for the first time extended that same public trust doctrine to groundwater that feeds a navigable river, in this case the Scott River flowing through a picturesque valley of farms and alfalfa in Siskiyou County in the northern reaches of California.
Yet in an era when local agencies around the state already are drafting plans to protect groundwater basins from being over pumped, the impact of this appellate ruling depends on who you ask.
In the Scott River case, Environmental Law Foundation v. State Water Resources Control Board, California’s Third District Court of Appeal concluded that counties are obligated to consider the public trust before authorizing new groundwater wells whose extractions might have an adverse impact on trust resources, such as water in a navigable river. Siskiyou County, which was a defendant in the case, has filed a petition for review with the California Supreme Court.
Still, Environmental Law Foundation President James Wheaton sees the ruling as a harbinger, even if its reach is limited to groundwater connected to surface waters and not deep aquifers.
“This opinion, to paraphrase the court, is the public trust case for the 21st century — a monumental decision bringing public trust principles to today’s water issues,” he said. “California’s water future is underground. That is where the real fight is and will continue to be. And this decision brings one of the most powerful legal rules — the public trust doctrine — to that fight.”
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