First District Court Judge Neel issued an order in the public trust groundwater lawsuit Friends of the Eel River v. County of Humboldt that appears to misinterpret the nature of the public trust doctrine and FOER’s argument that Humboldt County failed to uphold their duty to consider impacts to public trust resources while managing groundwater extraction in the Lower Eel River. We are disappointed by the ruling and considering our options.
The fact remains that groundwater pumping in the Lower Eel depletes surface flows by as much as 15 cubic feet per second (cfs), and that during dry summers, flows in the Lower Eel often dip as low as 50cfs. Unfortunately, irrigators in the Lower Eel will remain some of the only water users in the entire County who are not required to do their part and reduce water use during dry times.
While cannabis cultivators, domestic users, and appropriative water rights holders are subject to curtailments when flows are low (and much stronger regulations in the case of cannabis cultivators), those taking surface flows via groundwater can pump as they like regardless of the impact.
As we stated clearly throughout our case, the County only analyzed the impacts of groundwater use on Chinook at flows above 130cfs. Flows in the Lower Eel routinely fall below 130cfs in the summer time. When flows are low, moderate curtailment could help to prevent catastrophic impacts. The question remains why the County did not analyze impacts of groundwater extraction continuously throughout each season, as is required by the public trust doctrine.
FOER learned in the course of this litigation that shortly after filing our case, Humboldt County began adding superficial public trust analysis to their process of permitting new wells. This analysis remains limited in scope, relying on their hydrologic model which only assesses impacts on river flows above 130cfs. However, it does appear to affirm our argument that the County has a duty to consider public trust impacts of groundwater extraction on surface water flows.
We appreciate the efforts of other water users in the region to protect surface flows for our imperiled native fish, and will continue our good work toward recovery of the Eel River ecosystem. Our entire community benefits from healthy rivers and the ecological processes they support which provide clean water and support biodiversity. It follows that we should all do our part to keep our rivers healthy and flowing, especially as human-caused climate change makes it increasingly difficult for nature to maintain that balance on its own.