At the beginning of this Century, esteemed law professor Joseph Sax wrote an infamous article in the University of Denver Water Law Review. In this article, Professor Sax he asserted that California Water Law, specifically Water Code section 1200 et seq. which gives jurisdiction to the State Water Resources Control Board to regulate use of the waters of the State, could be extended to cover groundwater uses that impacted surface water streams and rivers. (“We Don’t Do Groundwater: A Morsel of California Legal History,” (2003), University of Denver Water Law Review; Volume 6 Issue 2.) The article, as one might anticipate, was received with much a great deal of hostility by those segments of the California economy, particularly farmers, who rely heavily on groundwater, particularly during drought. Legislators made great efforts to reassure farmers that the State had no intention of reaching for their groundwater. And while the Sustainable Groundwater Management Act in 2014 did begin the process of providing a regulatory framework for groundwater, legislators bent over backwards to keep such regulations under local control.
But I have been noticing a shift recently in the area of cannabis regulation. There, the State Water Board has asserted that groundwater pumping which impacts surface flows could be regulated. The justification is that such water is “hydrologically connected,” which is what Professor Sax described in his 2003 article. Interesting to me was that the Farm Bureau, perhaps because it still sees its clientele as distinct from people who farm cannabis, said nothing about this new assertion of jurisdiction over groundwater by the State. Now it looks like the issue has been brought front and center.
On August 29th, the Third District Court of Appeal held that groundwater withdrawals that impact surface flows are subject to the Public Trust doctrine, an ancient principle that holds the waters and tidelands to be a commons protected by the sovereign on behalf of the people, and thus both counties and the state have a duty to regulate such withdrawals to protect Public Trust values. The Court also held that the 2014 Sustainable Groundwater Management Act did not supplant the Public Trust.
This means that, barring further legal challenge (which is inevitable), water districts and the State Board now have a duty to regulate groundwater users when their withdrawals impact surface waters.