Comments to Amend Sonoma County’s Well Ordinance

 To Sonoma County Board of Supervisors and County Staff: 

The Atascadero /Green Valley Watershed Council is comprised of a group of people who live, own property or work in the watershed of the Atascadero Creek and Green Valley Creek who work to help each other in taking responsibility for our impact on the watershed through protection, restoration and education.  We respectfully submit that most of the revisions in Version (9–9–2022) of the proposed County ordinance to the water well construction standards are based on a logical fallacy. The fallacy is:

A. Navigable waters are public trust resources. (True.)

B. Non-navigable waters are not navigable waters. (True.)  Therefore,

C. Non-navigable waters are not public trust resources. (False.)

This fallacy taints much of what follows in the revisions. For example, the Public Trust Review Area is defined as an area where “the underlying aquifer is likely to be interconnected with a navigable water.” This results in areas underlying aquifers that are unlikely to be interconnected with a navigable water excluded from the Public Trust Review Area.  The fallacy is comparable:

A. Aquifers connected with navigable waters are public trust resources. (True.) 

B. Aquifers not connected with navigable waters are not aquifers connected with navigable waters. (True.) Therefore, 

C. Aquifers not connected with navigable waters are not public trust resources. (False.)

This foundational fallacy, like most fallacies, leads to revisions that are misleading. The revisions state that “California courts have found that the public trust doctrine is applicable to extraction of groundwater that adversely affects a navigable waterway.” That is true, but it is a gratuitous and misleading statement because California courts have not found the public trust doctrine is not applicable to the extraction of groundwater that does not adversely affect a navigable waterway.

The revisions in Section 25B-3 define public trust resources as “waterways the government is obligated to hold in trust …”  Why, in an ordinance regulating groundwater, limit the meaning of public resources to “waterways”?  By common meaning “waterways” are limited to surface waters, while the focus of an ordinance regulating wells is necessarily groundwater.  The appropriate definition would be “water” or “waters” the government is obligated to hold in trust.  Section 25B-2 (a) of the ordinance itself states: “The purpose of this chapter is to protect the groundwater resource of the county.”  It is Orwellian to define, in the immediately following section of the ordinance, public trust resources as “waterways,” or surface water.

All living things require water, and the human occupants of the County get most of their water from groundwater.  While the distinction between navigable and non-navigable waters is necessary in some contexts, it has no relevance to an ordinance proposed to regulate wells drawing groundwater.  All groundwater is an essential public resource.  Not only the groundwater likely to be interconnected with navigable waters, not only the groundwater west of Highway 101, nor only the groundwater east of Highway 101, rather, “the groundwater resource of the county,” as properly stated in Section 25B-2.  But the revisions unnecessarily add a second sentence reading: “It is the further purpose of this chapter to address the County’s public trust obligation.”  This addition does not clarify the proposed ordinance; it confuses it.  

It is not necessary for the proposed ordinance to address the public trust obligation or the public trust doctrine.  The public trust doctrine is a common law concept used by courts when addressing a situation not covered by legislation.  Rather, the ordinance should focus on public trust resources, as it did before the revisions.  The County’s General Plan states that the primary purpose of the Water Resources Element of the Plan is to “ensure that Sonoma County’s water resources are sustained and protected.”  If the proposed ordinance is to address the public trust doctrine, it should begin by referring to this pronouncement by the California Court of Appeal: “The [public trust] doctrine is expansive. (Colberg, Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67 Cal.2d 408, 416-417.) ‘The range of public trust uses is broad, encompassing not just navigation, commerce, and fishing, but also the public right to hunt, bathe or swim.  Furthermore, the concept of a public use is flexible, accommodating changing public needs.  For example, an increasingly important public use is the preservation of trust lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.’” Environmental Law Foundation v. State Water Resources Control Board, C083229 (Super. Ct. No. 34201080000583)

Respectfully submitted,

Jean Redus, President