In Baldwin v. County of Tehama (1994) 31 Cal. App 4th 166, the California Supreme Court addressed the question of whether or not a county ordinance that regulates groundwater is preempted by state law regulation of groundwater. The court found that while state law regulates aspects of groundwater, state statutes do not wholly preclude county regulation.

On February 4, 1992, Tehama enacted an ordinance that required a permit to extract groundwater for the purpose of use on land other than where the extraction occurs. This permit would not be granted if the board of supervisors finds that the proposed extraction's will result in an overdraft, saltwater intrusion, adverse effects upon the rate of flow of water through the aquifer, adverse effects on the water table, or the overdraft of groundwater based upon the preexisting and reasonably foreseeable beneficial uses of the water on lands within Tehama overlying the aquifer. Further, the operation of any well in the county that causes a cone of depression in the water table beyond the boundaries of the parcel upon which the well is located is prohibited.

The plaintiffs alleged that they owned land in Tehama County and they desired to extract groundwater therefrom for the purpose of irrigating land in Colusa County or Glenn County. The trial found that the ordinance was preempted. Tehama County was enjoined from enforcing its ordinance.

The court first noted that there is no direct conflict between this county ordinance and any state statute. Therefore, the sole question would be whether the field of groundwater is outside the county's police power and for that reason the entire ordinance must fail.

The court held that the Constitution provides that a city or county "may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with the general laws." Then, the court noted they had upheld a county ordinance that regulated groundwater in In re Maas 219 Cal. 422. In that case, the court found that an Orange County ordinance that limited the uses of water from pumping wells, prohibiting, among other things, the use of such water to flood land for hunting by duck clubs, was not preempted by state law. The court rejected an argument that this area of police power was reserved for the state. The court found that the conservation of groundwater was a legitimate area for the exercise of police power by Orange County, and that this power had not been reserved so that it could be exercised exclusively by the state legislators.

Thus, since the court found groundwater regulation is within the county police power, the ordinance may be enacted unless it conflicts with the general law (state legislation). To do this, it would have to be shown that the general law directly or impliedly "covers" the whole of the claimed field of regulation.

Again, since there was no direct conflict with state law, then one must look to see if there was an intent to preempt the field. The field would be preempted if :the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern, or the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action. An amiss curiae brief in support of plaintiffs' position admits that the Tehama ordinance addresses a regulatory void left by the historical reluctance of the state legislators to address the general problem of groundwater resources management.

Plaintiffs pointed to California Water Code Section 104, which states: "It is hereby declared that the people of the state have a paramount interest in the use of all the water of the State and that the State shall determine what water of the State, surface and underground, can be converted to public use or controlled for public protection." The plaintiffs argued that it clearly states that the "state shall determine" how the water of the state should be utilized to achieve the greatest benefit for its citizens.

The court countered there is no indication local authority is preempted just because this is a state wide concern. The court also argued that any reference to "the State" may include the counties. Further, the court points out that the state legislature cannot preempt the counties police power negatively by merely forbidding its exercise. Thus, the state legislature cannot simply declare a field is preempted, they must actually enact legislation that preempts the field according to the court.

Plaintiffs then argued that California Water Code Sections 1215-1222, which address the export of groundwater, support their claim of implied preemption. They also argued these sections are in direct conflict with the Tehama ordinance. These sections deal with exports of water out of the Sacramento Basin. The court found that there is no conflict because the Tehama County ordinance does not authorize exports of water out of the Sacramento Basin. However, plaintiffs then claim the Tehama ordinance duplicates parts of the above sections because they impose additional requirements on the export of water. The court found that preemption by duplication is usually limited to penal ordinances.

Therefore, the court concluded the plaintiffs have failed to show that the subject matter of groundwater regulation has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern. In fact, the court stated that the statutes suggest that the problems of groundwater management should be addressed at the local level. Finally, the court noted that the plaintiffs might have been able to attack the antimining provisions of the statute but since they did not address this issue the court declined to address this question.

Judith Kammins Albietz is Co-chair of the Natural Resources Subsection of the Real Propertv Section of the California State Bar. Ms. Albietz has been involved with Natural Resources, including water law and minerals law, Federal Indian law, federal and state public agency law, and real property and environmental matters in the private law firm setting and the public sector for over 25 years.