Sonoma County Receives Stay In Lawsuit Over Groundwater Well Permits

SONOMA COUNTY, CA — While the county of Sonoma announced a victory Friday in an ongoing lawsuit involving the county's ordinance governing the permit process for groundwater wells, the organization that brought the legal action said a major decision has yet to be made in the case.

The Court of Appeal for the First District in California granted Sonoma County a temporary stay Friday in the Russian Riverkeeper & California Coastkeeper vs. County of Sonoma decision issued by a Superior Court judge last fall. A temporary stay previously granted in the case was set to expire at the end of business Friday.

Without an extended stay, the county would have been prohibited from issuing non-emergency water-well permits while it pursues an appeal of the decision made last fall by Superior Court Judge Bradford DeMeo that struck down amendments adopted in 2023 by the county to its well ordinance.

"Ironically, the amendments were far more protective of natural resources than the prior well ordinance, which focused on regulated well construction to protect groundwater quality," county officials said. "Having reviewed its options, the county has concluded there is a strong public interest in defending the county’s amendments to its well ordinance and getting clarity from the Court of Appeals concerning any future amendments."

The county believes the court’s order was flawed and required more of the county than legally required. The county claims the court ignored environmental benefits created by the amendments. Further, the county said it was not provided a clear map on how to defensibly amend its ordinance in the future.

"Complying with the court's flawed order could take years and might still encounter future legal challenges," said Supervisor Lynda Hopkins, chair of the Board of Supervisors, which decided on the appeal during a closed session. "This also means that the county would have no ability to issue non-emergency water well permits while trying to comply."

The county said the amendments were designed to comply with a 2018 California Appeals Court decision that concluded, for the first time, that the state’s "public trust” duty extends to counties when they issue well permits. The 2018 case, the Environmental Law Foundation vs. State Water Resources Control Board —or the “ELF decision"—involved Siskiyou County.

Historically, the state’s ownership of navigable waterways comes with an obligation to protect them for the public for multiple benefits, including the environment. The California Supreme Court has explained that the state of California "has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible."

Sonoma was the first county in the state to amend its ordinance to comply with the ELF decision. The county formulated its amendments through "a robust public process as well as input from technical experts and available science," county officials said. The process included multiple public meetings and input from technical and policy-working groups. The county also hired a respected hydrogeologist with O’Connor Environmental, Inc. to prepare a report to inform the policy-making process.

To protect public trust resources, the county said, its well ordinance amendments created a dual track. Certain permits with a higher likelihood of impacting public trust resources would be subject to discretionary review including a public trust impact analysis and imposition of possible mitigating conditions. Other permits could be issued ministerially, over the counter, if they met certain criteria, including compliance with water conservation measures.

According to the county, this framework utilized a delineated “Public Trust Review Area" that included protections for non-navigable streams and resources that are not public trust resources in and of themselves—which went beyond what the public trust doctrine would require of the state, or as ruled in the ELF decision, of a county.

"It also recognized the importance of access to groundwater for a variety of uses, including residential uses, fire protection and existing agriculture and businesses," county officials said. "The Public Trust Review Area included protections for areas and resources that are not public trust resources— effectively going beyond what the public trust doctrine would require of the state, or under the ELF decision, of a county."

The county wants to see the Superior Court’s decision reversed because "it is legally incorrect on multiple grounds."

"The county did not abuse its discretion in adopting the amendments, which protect trust resources, and did not violate the California Environmental Quality Act by finding the amendments to be exempt from environmental review because the amended ordinance is more protective of the environment compared to the baseline established under the prior ordinance. The prior ordinance allowed all well permits to be issued ministerially," county officials said.

Russian Riverkeeper: County Ordinance Was Rushed, Does Not Protect The Fish

Russian Riverkeeper contends the stay issued by the court was procedural and that no major decision has been in the case.

"The court made no decision, there was no ruling, it was strictly procedural," said Don McEnhill, deputy director of Russian Riverkeeper. "The stay was a local court decision until we can file a reply and the county replies and then the court makes a decision. The real news happens in about two weeks."

As to what prompted Russian Riverkeeper to initiate the legal action, McEnhill said the ordinance was rushed.

"Correctly noted, there are some great people involved and they went through a process but what they didn't say was that people they cited like O'Connell Environmental told them they did not have enough time to do their work," McEnhill told Patch. "It is like producing a bunch of cars with no speedometer and then telling everyone 'don't worry, they will never go over the speed limit.'"

The county, McEnhill said, has issued too many well permits for single-family residences along Mark West Creek, a tributary of the Russian River. The permits should protect the environment, in turn, the fish, which have been on a path to extinction, he said.

"They have issued so many well permits we have no more steelhead salmon on Mark West Creek," McEnhill said. "The county says they have to use X amount of water but we are not going to meter it. In California, we know from history that if you don't record how much water is used, it has never worked."

RELATED COVERAGE:

• Amid Lawsuit, Court Orders Sonoma County To Stop Issuing Well Permits
• Judge's Order Allows Sonoma County To Temporarily Resume Well Permits