CSPA
Arroyo Grande Steelhead, June 1994
CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
P.O. BOX 357
QUINCY, CA 95971
Mark Stretars June 24, 1994
Complaint Unit
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Arroyo Grande Creek; Lopez Dam; WR Permit 12814 (Application 18375); Public Trust Complaint by William L'Hommedieu and the California Sportfishing Protection Alliance; Comments by California Sportfishing Protection Alliance Regarding Response of June 15, 1994 by San Luis Obispo County to Complaint Unit of the Division of Water Rights.
Dear Mr. Stretars:
I have reviewed the letter of June 15, 1994, from Glen Priddy of San Luis Obispo County to you regarding the above mentioned water right matter. The following are the comments of the California Sportfishing Protection Alliance:
o San Luis Obispo County's letter of June 15, 1994 does not alleviate the CSPA concerns for Lopez Dam and the public trust fishery resources of Arroyo Grande Creek. There is no misunderstanding on the part of the CSPA as alleged by Glen Priddy of San Luis Obispo County.
o It is alleged by San Luis Obispo County that they operate Lopez Dam in a manner consistent with their water right permit and all applicable local, state and federal law. We disagree. Fish and Game Code 5937 requires San Luis Obispo County to release water at all times to keep in good condition fish which exist or are planted below Lopez Dam. Fish and Game Code 5937 is supported by Section 782, California Code of Regulations, Title 23. There are no mandatory daily flow requirements for southern steelhead and other fish and aquatic species in Permit 12814. (My Emphasis)
We are requesting the Complaint Unit to have San Luis Obispo County provide the Division with daily gauging records for locations below the dam since the construction and operation of Lopez Dam.
o San Luis Obispo County claims that it is simply false that the streambed below Lopez Dam is "dry as a bone". San Luis Obispo County did not disclose and provide daily gauging data to the Complaint Unit to support their allegation which shows that water flows down this portion of Arroyo Grande Creek.
San Luis Obispo County alleges that the "project operation has no unnecessary detrimental effect on the fish habitat of Arroyo Grande Creek and in fact is beneficial to the fish". San Luis Obispo County did not disclose and provide daliy gauging data to the Complaint Unit which shows that water flows Arroyo Grande Creek in daily amounts which protect and maintain in good condition the fish and their habitat in the stream. Further, San Luis Obispo County did not disclose and provide a fishery study prepared by a professional fisheries biologist which documents that "project operation has no unnecessary detrimental effect on the fish habitat of Arroyo Grande Creek and in fact is beneficial to the fish".
San Luis Obispo County alleges that "there exist a live stream to the lagoon at the mouth of Arroyo Grande Creek due to agricultural irrigation return flow". San Luis Obispo County did not disclose and provide daliy gauging data to the Complaint Unit which shows that water flows to the lagoon and that water quality in Arroyo Grande Creek has not been adversely impacted by said irrigation return flows, and that said irrigation return flows has not adversely impacted the streambed of the stream by depositing sediment in the streambed.
o San Luis Obispo County states that " The releases to the stream from Lopez Dam are only stopped when flows from other creek tributaries cause the surface flow to approach the ocean. The stream frequently flows to the ocean providing opportunity for steelhead migration".
San Luis Obispo County fails to understand that fish need water to survive at all times and that when releases from Lopez Dam are stopped, the dewatering of the stream has the potential to cause adverse impacts to fish and aquatic resources.
Steelhead trout need water to survive. This species of fish also needs adequate habitat for self sustaining purposes. i.e. upstream migration flows for adult fish, spawning flows for adult fish, rearing flows for juvenile fish, and downstream migration flows for adult and juvenile fish. Without adequate and mandatory daily amounts of water flowing from dams and below water diversions, the steelhead fisheries of specific watersheds have become significantly degraded and/or extinguished. i.e. Santa Ynez River.
o The most threatened and endangered species of steelhead trout in California is the southern steelhead trout. This species is located south of the San Francisco Bay along the California coast. The CSPA and other organizations have filed a petition with the U.S. National Marine Fisheries Service to list steelhead trout as either threatened or endangered in the states of California, Oregon, Washington and Idaho. This petition passed the 90 day review period and said petition is now being evaluated during a one (1) year period to determine whether or not this species should be listed. It is my understanding that during the one-year period this species must be given specific consideration with regards to projects which are jeopardizing this species and its habitat. We reference Petition For A Rule to List Steelhead Trout As Threatened or Endangered Under The Endangered Species Act And To Designate Critical Habitat; Oregon Natural Resources Council et al., United States Department of Commence National Oceanic and Atmospheric Administration National Marine Fisheries Service; February 14, 1994. (My Emphasis)
o San Luis Obispo County claims that any increases to releases for fish and the ecosystem of Arroyo Grande Creek would be a waste of the state's water and that it would be a violation of the common law public trust doctrine. We disagree.
Fish are the property of the people of the State of California. The state's fishery resources are public trust assets. San Luis Obispo County does not have the discretion to destroy public property and public trust assets. San Luis Obispo County and the State Water Board have a duty and a responsibility to protect the public trust fishery resources and ecosystem of Arroyo Grande Creek for the following reasons:
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 for Arroyo Grande Creek.
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 and the Department of Fish and Game 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 protest is in accordance with that court ruling.
The CSPA complaint is based on the Public Trust Doctrine. The public trust resources of Arroyo Grande Creek has been neglected and damaged by existing practices by San Luis Obispo County.
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 Arroyo Grande Creek.
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 Arroyo Grande Creek when either approving or not approving the proposed petition.
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 recreation, fishery resources, water quality, riparian habitat, and other public trust resources of Arroyo Grande Creek must be protected against harm or degradation by this project.
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 Arroyo Grande Creek can not be enjoyed by the people unless public trust fishery resources 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 on Permit 12814
The State Water Board has several sources of authority to modify Permit 12814:
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.
o The State Water Board has the authority and responsibility to prevent the unauthorized use of the state's water. We are requesting the State Water Board to enforce Section 1052 (b) of the California Water Code against San Luis Obispo County because the unauthorized use of the state's water is a trepass and subject to a fine of $500 per day. We also believe that the unauthorized use of the state's water by San Luis Obispo County constitutes unjust enrichment.
We are requesting the State Water Board to bring San Luis Obispo County into compliance with California Fish and Game Code 5937, Section 782, California Codes of Regulations, the Public Trust Doctrine and other applicable statutes.
A wrtitten response is requested.
_________________________________________
Robert J. Baiocchi
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-283-3767 (CSPA Quincy Office) or 916-283-1007 (Law Office)
Fax: 916-283-3767
Certificate of Service
Bill L'Hommedieu
1355 Las Encinas Drive
Los Oso, CA 93402
Dr. Joy Belsky
Staff Ecologist
Oregon Natural Resources Council
522 SW 5th #1050
Portland, Oregon 97204
Steve Volker
Sierra Club Legal Defense Fund, Inc.
180 Montgomery Street
Suite 1400
San Francisco, CA 94104-4209
Jim Crenshaw, President, CSPA
1248 East Oak Avenue
Woodland, CA 95695
Bill Jennings, Chairman, CSPA
CSPA Delta Office
5637 N. Pershing Avenue
Suite A-2A
Stockton, CA 95207
Felix Smith
4720 Talus Way
Carmichael, CA 95608
Dave Ford, President
Northern California Council FFF
6705 Plum Tree Court
Citrus Heights
CA 95610
Mike Mumford, President
Southwest Council FFF
2137 South Richmond Road
Ridgecrest, CA 93555
Ray Cole
Northern California Council FFF
2874 Calariva Drive
Stockton, CA 95204
Ed Henke
Historical Research
769 Lisa Lane
Ashland, CA 97520
Stan Griffin
Trout Unlimited
5200 Huntington Avenue - Suite 300
Richmond, CA 94804-5416
Lorna Carrideau, NCCFFF
801 Brookside Drive
Woodland, CA 95695
Britt Phillips, NCCFFF
401 Traffic Way
Arroyo Grande, CA 93420
Joel Baiocchi, Mullen & Henzell
P.O. Box 789
Santa Barbara, CA 93101
Aimee Redding, GWWF
2307 Buena Vista Avenue
Walnut Creek, CA 94596
Tom Van Gelder, LOFEC
5360 Treasure Hill Drive
Oroville, CA 95966
Maureen Mitchell-Wise, CSPA Board
2807 Piedmont Avenue
Berkeley, CA 94705
Richard Izmirian, CSPA Board
2215 Eaton Avenue
San Carlos, CA 94070
Dave Heaslett, CSPA Board
857 Cass Street, Suite A
Monterey, CA 93940
Bill Bricca, CSPA Board
P.O. Box 159
Ross, CA 94957
Mark Lamdre, CSPA Board
14504 Neargrove
LaMirada, CA 90638
Larry Hampy, CSPA Board
162 E Casuda Canyon Drive
Monterey Park, CA 91754
Craig Fusaro
121 Gray Avenue
Santa Barbara, CA 93101
Brian Treutwein
Santa Barbara Urban Creeks Council
5771 Leeds Lane
Goleta, CA 93117
Ben Mintz, CSPA Board
22370 Mission Circle
Chatsworth, CA 91311
Wayne White, State Supervisor
U.S. Fish and Wildlife
2800 Cottage Way
Sacramento, CA 95825
Boyd Gibbons, Director
John Sullivan, Deputy Director
Cindy Chadwick, Environmental Services
c/o John Turner, Chief, Environmental Services
Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
California Fish and Game Commission
c/o Robert Treanor, Executive Secretary
1416 Ninth Street
Sacramento, CA 95814
Wayne White, State Supervisor
U.S. Fish and Wildlife Service
2800 Cottage Way
Sacramento, CA 95825
Craig Faanes, Field Supervisor
U.S. Fish and Wildlife Service
Ventura Office
2140 Eastman Avenue
Suite 100
Ventura, CA 93003
Jim Bybee
U.S. National Marine Fisheries Service
777 Sonoma Avenue
Room 325
Santa Rosa, CA 95404
Dennis McEwan, Associate Fisheries Biologist
Inland Fisheries Division
Department of Fish and Game
1416 Ninth Street
P.O. Box 944209
Sacramento, CA 94244-2090
Glen L. Priddy, Deputy Engineer
Engineering Services
Engineering Department
San Luis Obispo County
County Government Center
Room 207
San Luis Obispo, CA 93408
For further information contact Bob Baiocchi at either 530-836-1115 or
at e-mail address: cspa@psln.com