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Keeping You Up-to-Date on the California Environmental Quality Act

Posts Tagged ‘SGMA’


Public Trust Doctrine Applies to Groundwater, Sustainable Groundwater Management Act Exists Concurrently with Common Law and Did Not “Occupy the Field”

Wednesday, August 29th, 2018

In Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 844, the Third District Court of Appeal held that the public trust doctrine applies to groundwater basin management where groundwater may effect “navigable waters” and the Sustainable Groundwater Management Act (SGMA), Water Code section 10720 et seq., did not change this.

The parties stipulated to the facts and issues for the Court to address. The Scott River is a tributary of the Klamath River and a navigable waterway located in the northwest California. The Scott River has historically been used for water recreation and serves as habitat for salmon species listed in the Endangered Species Act. Groundwater aquifers adjacent to the Scott River in Siskiyou County (County) are hydrologically connected to the surface flows of the Scott River. Local farmers drilled groundwater wells and, in some summers and early fall months, the River was dewatered due to the groundwater pumping.

Environmental groups petitioned the County and the State Water Resources Control Board (SWRCB) to take administrative action to limit pumping in the Scott River watershed based on the public trust doctrine. When both refused, Environmental Law Foundation (ELF) filed suit.

ELF alleged that groundwater resources, which are interconnected with the surface water flows of the Scott River, are subject to and protected by the State’s public trust doctrine. The SWRCB reconsidered and adopted ELF’s position before the litigation concluded. The County claimed that it had no duty to limit groundwater pumping or consider its environmental impacts. The County further claimed that SGMA, which created a statewide system of groundwater management, was a comprehensive statutory scheme that displaced common law principles like the public trust doctrine. The trial court held that the public trust doctrine applies to groundwater in this case and SGMA did not effect this. The County timely appealed.

The Appellate Court, with Presiding Justice Raye writing for a unanimous Court, relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 and held that groundwater in the Scott River Valley is subject to the public trust doctrine. In National Audubon, the Supreme Court held that the public trust doctrine fully applies to the State’s complex water rights system. Specifically, the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine. The Court held that the Scott River facts were analogous to those in National Audubon as the pumping was similarly effecting the water level of the river. However, there was a heightened duty to protect the Scott River where it is a navigable waterway. “The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violate the public trust.” Accordingly, the Court concluded that the public trust doctrine fully applies to extractions of groundwater that effect a navigable waterway.

The Court then held that, by enacting the SGMA, the Legislature did not intend to “occupy the field” of groundwater management and thereby abolish the public trust doctrine. Definitively, the Court held, “the enactment of SGMA does not, as the County maintains, occupy the field, replace or fulfill public trust duties, or scuttle decades of decisions upholding, defending, and expanding the public trust doctrine.”

The Court affirmed the trial court’s decision.

Key Point:                                                            

The State and its legal subdivisions must concurrently consider public trust principles and the Sustainable Groundwater Management Act in monitoring groundwater resources. Further, only where the Legislature intended to “occupy the field” will common law principles be superseded by Legislative acts.

Second District Court of Appeal Finds County Well Permit Approval is “Ministerial,” Exempt from CEQA Review Absent Showing of Discretion, SGMA Absent Agency Law Incorporation

Thursday, June 28th, 2018

In California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal. App. 5th 666, the Second District Court of Appeal held that the approval of groundwater well permits was a ministerial act and not subject to CEQA environmental review because no discretion was exercised when such permits were issued.

County of San Luis Obispo (County) staff, after finding that four groundwater well permit applications were complete and complied with County and state standards, approved each well permit without conducting CEQA review. Specifically, staff alleged the wells met the standards outlined in the San Luis Obispo County Code Chapter 8.40, incorporating the state well standards set by the Department of Water Resources.

California Water Impact Network (Network) filed suit claiming that the County improperly failed to conduct CEQA review and, in doing so, “bypassed public disclosure of potentially significant impacts to groundwater resources.” The trial court agreed with the County that no CEQA review was necessary for ministerial actions and granted the County’s demurrer.

The Appellate Court agreed with the trial court and the County that no CEQA review was required where such permit approvals were exempt as “ministerial projects” under Public Resources Code section 21080(b)(1). The Court described where a ministerial project does and does not exist and rejected Petitioners’ argument that the recently enacted Sustainable Groundwater Management Act altered the County Code.

The Court clarified that a ministerial act is where “little or no personal judgement” is used by the public official; the law is applied to the facts and no individualized or special consideration is required. The Court noted that well permits are a type of building permit which are “presumed to be [a] ministerial [act].” In contrast, a discretionary act involves judgement or deliberation. The Court reviewed the legislative intent, stated that agencies conducting ministerial acts have no ability to influence the project, and concluded that such acts are excluded from CEQA review.

Citing rules on judicial statutory interpretation, the Court rejected appellant’s argument that the County had some discretionary powers under Chapter 8.40 to impose additional conditions on well permits. The Chapter was clear: a well permit “shall be issued” so long as the listed conditions are met. The Court affirmed the trial court’s decision to uphold the permits.

Key Point:

The issuance of groundwater well permits are ministerial duties exempt from CEQA review. Therein, SGMA considerations need not be addressed in agency decisions unless the guiding agency law specifically incorporates it.