CSPA
Russian River Watershed
Steelhead
State of California
Before the State Water Resources Control Board
Windsor Water District, Applicant,
Application 29737, And
All Pending Water Right Applications
Russian River Underflow/Russian River Watershed
thence Pacific Ocean
Public Trust Protest and Public Trust Complaint
by California Sportfishing Protection Alliance
We the California Sportfishing Protection Alliance (hereinafter known as "CSPA") of P.O. Box 357, Quincy, CA 95971, c/o Bob Baiocchi, Executive Director, CSPA, have carefully read a copy of, or a notice of December 4, 1992, relative to the above mentioned application for water right filed by Windsor Water District. There are also about 70 pending water right applications at this time before the State Water Board.
Windsor Water District proposes to divert 11.14 cfs of water year around from off-set wells located in the underflow of the Russian River. The wells which constitute the point of diversion are proposed to be located approximately 2 1/4 miles NW of the town of Windsor. The water is to be used for municipal purposes within the Windsor Water District area.
The amount of water applied for is 11.14 cfs by direct diversion and 4,725 acre-feet annually (total use) from January 1 to December 31 annually for municipal purposes.
The CSPA desires to protest against the approval of the application because the proposed diversion has the potential to have significant direct, indirect and cumulative adverse impacts to the public trust resources of the Russian River. This protest is being filed jointly with a public trust complaint against about 70 water right applications pending before the State Water Board at this time. Application 29737 in conjunction with the pending applications have the potential to cause adverse cumulative impacts to the public trust resources of the Russian River watershed.
Facts which support the foregoing allegations are as follows:
1. The Russian River sustains public trust steelhead trout, salmon, aquatic species, riparian habitat, wildlife habitat, plant species, and recreational values.
2. There are about 70 pending water right applications at this time before the State Water Board to appropriate water from the Russian River watershed.
Application 29737 in conjunction with about 70 pending water right applications and existing water right permits have the potential to cause adverse cumulative impacts to: (1) steelhead trout populations and their habitat (all life stages), (2) salmon populations and their habitat (all life stages), (3) aquatic species and their habitat (all life stages), (4) other fish species and their habitat (all life stages), (5) riparian habitat, (6) wildlife populations and their habitat, (7) plant species, (8) water quality from reduced flows, and (9) adequate cold water throughout the year for cold water fish species; and (10) adequate annual flows for upstream migration and down stream migration of steelhead trout and salmon.
3. The State Water Board stated in its notice of application 29737 on December 4, 1992, that:
"Based on a review of information available at the time of this Notice, State Water Resources Control Board staff finds that the proposed project has a potential for causing a significant effect on the environment. Our preliminary investigation indicates that the resources that may be affected include, but are not necessarily limited to the following: steelhead and salmon, many-flowered navaretta, Burke's goldfields and cumulative impacts."
In accordance with CEQA and the Guidelines the Windsor Water District must be required to prepare an EIR.
4. Application 29737 has the potential to cause growth inducing impacts. The EIR should evaluate potential growth inducing impacts.
The CSPA Public Trust Protest and Public Trust Complaint is Based on the Following:
The Authority and Duty to Act and Legal Obligations of the State Water Board
The Public Trust
The State Water Board has a duty to protect public trust resources when administrating water rights, and, in situations where damage has already been done by water users, to reallocate water to preserve the trust. It is the latter duty which the Board must perform on the Russian River watershed.
The State Water Board has the continuing authority over all water rights under the common law public trust doctrine to protect public trust resources. [See National Audubon Society v. Superior Court of Alpine County (1983) 33 Cal.3d. 419, 189 Cal. Rptr. 346.]
The public ownership of the State's waters and water courses has its roots in Roman Law of the 6th Century A.D. The public ownership of fish and wildlife also has its roots in ancient Roman Law from the 6th Century A,D. [See Althaus 1987] This fish and wildlife (includes shellfish, birds, mammals, and other classes of wild animals) in their natural state can be regarded as property belonging to the people, with governmental agencies such as the State Water Board as trustees.
The California Supreme Court in its Mono Lake Decision [National Audubon Society v. Department of Water and Power, City of Los Angeles (33 Cal.3d 419,658 P.2d 709-1983) reiterated and clarified some of its past rulings regarding public trust properties, uses and values. The Court further emphasized the State's overall duties and responsibilities to protect the people's common heritage of streams, lakes, marshlands and tidelands for the many uses covered by the public trust.
In this 1983 ruling, the California Supreme Court also stated:
o Parties acquiring rights in trust property (in this case water), hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.
o The public trust is more than an affirmation of the State power to use public property for public purposes, it is the duty to take public trust properties (fish, wildlife and water quality) into account in the planning and allocation of water and to avoid or minimize any harm to these properties, interests or associated uses whenever feasible.
o The State, under its public trust responsibilities, has the affirmation of the duty and continuing authority to vigorously protect the public trust uses and to avoid or minimize harmful impacts to such uses.
o The public trust is more than an affirmation of the state's power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.
o The Public Trust doctrine protects navigable waters from harm caused by diversion of non-navigable tributaries.
o The State can reconsider previous water allocations at any time under its continuous authority.
o The public trust includes the protection of ecological and biological values of water and waterways.
o Any member of the general public has standing to raise a claim of harm to the public trust. (Emphasis Added) This CSPA public trust complaint is in accordance with that court ruling.
The CSPA public trust protest and complaint are based on the Public Trust Doctrine.
California Fish and Game Code 5937 - Water for Fish
There has been a long history of concern for California's fishery resources. The California Legislature in 1852 enacted a statute designed to protect migrating steelhead trout and salmon on their spawning runs by outlawing obstructions in any river or stream as a public nuisance. The law is that "the running water of the State of California are public property. One who obstructs them obstructs them under license or permission from the state, but only upon such conditions as to their use as the state may impose" [See Schaezlien v. Cabaniss (135 Cal 466, 470, 67 Pac Rpt. 755, 757-1902)] The State can impose conditions upon owners of a dam or other structure as it sees fit to permit the free running of water or migration of fish up or down a stream.
In 1870 the California Legislature enacted Penal Code 637 which required " as far as practicable" fishways over obstructions in the State's rivers and streams. The court ruled that Taylor's dam on Papermill Creek violated Penal Code 637 by failing to keep the fishway in repair to allow fish to move upstream [See Taylor v. Hughes (62 Cal 32 1882)]
In 1915 another statute was enacted requiring continuous water release from dams through fishways for the purpose of keeping fish below such dams in "good condition". In 1937, what is now California Fish and Game Code 5937 was enacted by the California Legislature. Fish and Game Code 5937 states that the owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. [See Use it or Lose It - Fish and Game Code 5937; Law Review Article; Joel Baiocchi; U.C. Davis, 1980]
The State Water Board was challenged in the courts over not enforcing Fish and Game Code 5937 involving the construction of four (4) dams on tributaries to Mono Lake and the diversion of their entire flow by the Los Angeles Department of Water and Power for municipal and industrial water supply and hydropower uses. There were no instream flow provisions incorporated into water right permits issued by the State Water Board to keep trout alive and in "good condition" in streams below the dams. [See California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]
The Appellate Court's findings in California Trout v. State Water Resources Control Board supported the concept that trust properties, such as fish, have a unique status. The title to the fish property in State waters is vested in the State and held in trust for the people.
Other important points of the decision include:
o Fish and Game Section 5937 mandates that the owner of any dam shall allow sufficient water at all times to pass through a fishway or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. (Emphasis Added)
o Limits the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure the continued existence in good condition of fish life below the dam. (Emphasis Added)
o Compliance with Fish and game Code 5937 was not negated by the agreement to build a trout hatchery.
o The public trust interest as to a fishery in a non-navigable stream is in the nature of a state property interest
o There are a variety of public trust interests in addition to fish and the fishery that pertain to non-navigable streams.
o Water right permit actions or the failure to take action is not time barred. The nature of the State's property interest in both fish and water is such that one may not oust the State's property or trusts interests by a statute of limitation. " The public is not to lose its rights through the negligence of its agents, nor because it has not chosen to resist an encroachment by one of its own number, whose duty it was, as much as that of every other citizen, to protect the state in its rights." [See People v. Kerber (1908) (152 Cal. 731, 732, 736, 93 P. 878) in California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]
o If a nuisance is an ongoing conduct that can be discontinued by an order to stop such acts, the nuisance is viewed as continuing and hence abatable. There are no statute of limitations that permit such acts to continue.
o The licenses to appropriate water must be conditioned by the State Water Board mandating that the dam owner allow sufficient flow of water to pass downstream of the dam to keep the fish alive and in good condition.
The Appellate Court also found that Fish and Game Code 5937 are expressions of both the California Constitution and the California Legislature for protecting the value of the State's instream waters as an ecosystem and the fishery resources that utilize that ecosystem. The effect of that provision is to limit the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure that fishlife below the dam are maintained in "good condition". (Emphasis Added)
The criteria "in good condition" is not defined in Fish and Game Section 5937. However, "in good condition" must include the conservation and protection of the biological, physical, and chemical aspects of the aquatic environment that are necessary to support self-maintaining or renewable fish populations, associated ecological values and other beneficial and public trust uses of the Russian River watershed.
The State Water Board cannot continue to ignore its duty to enforce the law against water users. In the words of the United States Supreme Court;
"The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties except in the instances of parcels mentioned for improvement of the navigation and use of the waters and when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police power in the administration of government and preservation of peace." [Illinois Central Railroad Co. v. State of Illinois, (1892) 146 U.S. 452.]
Water Quality - The Fish
In People v. Truckee Lumber Co. (116 Cal. 397, 48 Pac. 374 (1897)) the actions of Truckee Lumber Co. were declared a nuisance and enjoined. The lumber mill allowed the dumping of saw dust, shaving, edgings and other wastes into the Truckee River. The material was polluting the river and was deleterious to aquatic life, killing trout and other life in the river and destroying the fishery. The chemical, biological and physical components in a significant reach of the Truckee River were being impacted by such wastes.
The California Supreme Court in its Truckee decision stated:
"the fish within our waters constitute the most important constituent of that species of property commonly designated as wild game, the general right and ownership of which is in the people of the state -- and the right and power to protect and preserve such property for the common use and benefit is one of the recognized prerogatives of the sovereign, coming to use from the common law and preserved and expressly provided for by the statutes of this and every state of the Union --.
--The Dominion of the State, for the purposes of protecting its sovereign rights in the fish within its water and their preservation for the common enjoyment of its citizens is not confined--. It extends to all waters within the State, public or private, wherein these animals are habited or accustomed to resort for spawning or other purposes, and through which they have freedom of passage to and from the public fishing grounds of the State". (Emphasis Added)
The State Water Board must not neglect it duty to protect the public trust resources of the Russian River watershed.
The Right To Fish - Abundance of Public Trust Resources
The State Water Board when issuing water right permits to use the waters of the state has responsibilities for preserving and protecting the public trust resources and public interest by incorporating mandatory protection requirements into water right permits. In this situation fish resources, water quality, riparian habitat, and other public trust resources of the Russian River watershed must be protected by the State Water Board against harm or degradation by the Windsor Water District and other water right applicants.
The California Constitution, Article 1, Section 25, clarifies the public fishing right.
" The people shall have the right to fish upon and from the public lands of the State and in the waters thereof and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish there upon -"
The right to fish the Russian River can not be enjoyed by the people unless steelhead trout and salmon are in sufficient abundance to be harvested and enjoyed.
The continued existence, renewability and abundance of such resources in their broadest context, the integrity of water as an aquatic environment upon which such resources depend, rests upon the State Water Board.
Water Rights - State Water Board - Authority to Act
The State Water Board has several sources of authority to modify water right permits and to require water in the Russian River watershed to protect public trust resources.
o Water Code Section 1394 authorizes the State Water Board to include a specific reservation of jurisdiction in a permit.
o Pursuant to Water Code 1258, the State Water Board may subject appropriations to such terms and conditions as it finds necessary to enforce water quality control plans.
o The State Water Board has continuing authority under Water Code Sections 100 and 275 to enforce the requirements of California Constitution Article X, Section 2 with respect to all water right holders.
o The State Water Board's regulations at 23 Cal. Code Regs. Section 784 describes the State Water Board's authority to require release of of stored water.
o Section 780 (a) sets forth the State Water Board's standard permit term reserving continuing authority. This term describes how the State Water Board might exercise its continuing authority under Water Code Sections 100 and 275, under Cal. Const. Art. X, Section 2, and under the common law public trust doctrine.
o The State Water Board has continuing authority over all water rights under the common law public trust doctrine to protect public trust uses.
o The standard permit term for continuing authority at Section 780(a) of Cal. Code Regs., Title 23, is based in part on the public trust doctrine.
Under what conditions may this protest and this complaint be disregarded and dismissed?
1. The Applicant must be required to prepare an Environmental Impact Report to evaluate and determine the potential impacts to the public trust resources of the Russian River. The CSPA request a timely copy of the draft EIR and the opportunity to provide comments. The CSPA also request the opportunity to submit scoping comments for the preparation of said draft EIR.
2. The Applicant in conjunction with all other applicants who have pending water right applications before the State Water Board to appropriate water in the Russian River watershed must be required to prepare a "Cumulative Impact Analysis" which evaluates and determines the potential cumulative impacts to the public trust resources of the Russian River from all existing water right permits [including riparian diversions and pre-1914 diversions] and water right applications before the State Water Board.
3. All pending water right applications to appropriate water in the Russian River watershed must be held in abeyance by the State Water Board until the Cumulative Impact Analysis is completed and acted upon by the State Water Board. The CSPA request a hearing on this matter.
4. The State Water Board must carry out all its duties to protection the public trust resources of the Russian River watershed as required by law.
A true copy of this protest has been served upon the applicant and other interested parties by first class mail.
___________________________________________
Robert J. Baiocchi, Executive Director, CSPA
P.O. Box 357
Quincy, CA 95971
Office Tel: 916-283-3767
Fax: 916-283-4999
Date: January 14, 1993
Certificate of Service
Mr. Walt Pettit, Executive Director
State Water Resources Control Board
Mr. Ed Anton, Chief
Mr. Ross Swenerton, Environmental Unit
Mr. Tom McKenzie, Environmental Unit
Division of Water Rights
State Water Resources Control Board
Mr. Boyd Gibbons, Director
c/o Ms. Cindy Chadwick, Environmental Services
Department of Fish and Game
Mr. Wayne White, Supervisor
U.S. Fish and Wildlife Service
Mr. Jim Crenshaw, President
California Sportfishing Protection Alliance
Mr. Michael Jackson, Counsel
California Sportfishing Protection Alliance
Windsor Water District, Applicant
c/o Mr. Paul Williams
P.O. Box 100
Windsor, CA 95492
Interested Parties
For further information contact Bob Baiocchi at either 530-836-1115 or
at e-mail address: cspa@psln.com