California Drought and the Public Trust

By Jim Olson

This has been a long time coming, inevitable really: Since the California Supreme Court’s decision in the National Audubon “Mono Lake” case back in the 1980s, courts have recognized the hydrologic connection between navigable and non-navigable but tributary streams and the groundwater that replenishes them.  Indeed, it would be archaic to recognize a claim to protect the public trust ecosystem, fish, habitat and public enjoyment in navigable waters from harm caused by diversions of smaller non-navigable streams, but not protect public trust from diversions from tributary groundwater. Both are tributaries; it should matter one wit if water is pumped at the rate of 1 million gallons a day directly into a pipe from a stream or groundwater.  If both feed the downstream public trust waters, the same amount of water is lost to the system and the same harm would occur.

This is similar to the court decisions in the Michigan Citizens for Water Conservation v Nestle bottled water case a few years back. The courts found the removal of 400 gallons per minute from the groundwater that fed the stream and lakes to unreasonably harm the downstream uses and habitat, and cut the pumping rate by  half most of the year, and down to approximately 125 gpm in the dryer summer months.  The courts also found that the removal of water caused impairment of the stream and ecosystem, and lowered the pumping rates under Michigan’s Environmental Protection Act — the “Sax law”, named after the late Professor Joe Sax, Boalt Hall Law School, in Berkeley, for which he was awarded the international Blue Planet Prize — a citizen suit law that allows affected citizens to bring lawsuits to protect common waters, natural resources, and the public trust in those resources.

It would be illogical to recognize the legal connection of groundwater and riparian law, or groundwater and appropriation law (even California’s own Katz case limited groundwater diversions that would affect streams), but not recognize the connection between groundwater and public trust law. Public trust law protects the navigable portion of lakes, streams, and rivers, including the Great Lakes. Riparian and public trust law now recognize what scientists have been saying for years, groundwater, streams, lakes are one hydrological system. In fact, Hawaiian courts have held that the impacts from land uses, like farming and algal blooms in Lake Erie, adjacent to or connected to lakes and streams that impact the riparian rights or public trust rights of others, can be controlled or prevented. Professor Sax recognized this when he drafted the Michigan Environmental Protection Act back in 1970:  Any use within a watershed that impacts the flows, levels, quality of private and public downstream uses or ecosystem can be prohibited if the impacts amount to pollution or impairment. So California and other states facing challenges from drought, climate change, or wasteful use of groundwater can regulate it under the common law of the public trust doctrine. Go for it, California!

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