Statutes and the Public Trust: The Court of Appeals Provides Some Clarity to Cloudy Waters

by Jan Stevens^*

In August 2018, the California Court of Appeal for the Third Appellate District issued an important decision tackling two issues of first impression for the court: whether California’s robust public trust doctrine applies to groundwater, and, if so, whether California’s Sustainable Groundwater Management Act ("SGMA") supersedes that doctrine. In Environmental Law Foundation et al v. State Water Resources Control Board, et al. ("ELF") ¹, the appeals court concluded that the public trust doctrine does indeed apply to groundwater resources, and that SGMA has not displaced the doctrine’s application.

While application of the public trust doctrine to groundwater resources is a new step for the appellate court, the ELF decision draws on California’s established precedent of applying the public trust doctrine in the water resources context. This article discusses the origins of the public trust doctrine, its application to water rights, and the implications of the ELF decision’s reasoning moving forward.

I. STATUTES REVOLVING IN COMMON LAW ORBITS: THE SWAMP CREATURE MEETS GODZILLA