State Court of Appeal grants Sonoma County temporary stay as county appeals well ordinance decision

The Court of Appeal for the First District in California today granted Sonoma County its request for a temporary stay in the Russian Riverkeeper & California Coastkeeper vs. County of Sonoma decision issued by a Superior Court judge last fall while the County pursues an appeal of the decision. A temporary stay previously granted by the Superior Court was due to expire at the end of business today. Without an extended stay, Sonoma County would have been prohibited from issuing non-emergency water well permits. If for any reason the Court of Appeal modifies or lifts the temporary stay, the County will alert the public.

Meanwhile, the County of Sonoma has decided to appeal the Russian Riverkeeper & California Coastkeeper decision to the Court of Appeal for the First District. The decision by Superior Court Judge Bradford DeMeo in the fall struck down amendments adopted by the County in 2023 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. 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 is flawed, requires more of the County than is legally required, ignored the environmental benefits created by the amendments, and ultimately provides no clear map for how to defensibly amend its well 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 made the decision to appeal in closed session. “This also means that the County would have no ability to issue non-emergency water well permits while trying to comply.”

The amendments to the well ordinance 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. That 2018 case is known as Environmental Law Foundation vs State Water Resources Control Board, otherwise known as the “ELF decision,” and 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.”

The County of Sonoma was the first county in the state to amend its well ordinance to comply with the ELF decision. The County’s amendments were formulated through a robust public process as well as input from technical experts and available science. 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’s well ordinance amendments created a dual track. Certain permits, which present 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. This framework utilized a delineated “Public Trust Review Area.” The Public Trust Review Area included protections for non-navigable streams and resources that are not public trust resources in and of themselves – effectively going 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. 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’s position is that the Superior Court’s decision should be 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. 

For more details about the background of the case and the County’s reasons for filing an appeal, and for information about well permits go to: www.permitsonoma.org/WellOrdinanceUpdate. 

### 

Media Contacts:

Paul Gullixson
Communications Manager
County of Sonoma
(707) 565-1964

Genevieve Bertone
Permit Sonoma, Outreach Manager
Genevieve.bertone@sonoma-county.org
707-565-1231