State of California
Before the State Water Resources Control Board
James J. Hill III, Applicant
Application 30166
Big Sur River Underflow thence Pacific Ocean
Monterey County
Application for Water Right
Public Trust Protest
by the 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 relative to the above mentioned application to appropriate water from the underflow of the Big Sur River.
Application 30166
The Applicant proposes to continue diverting 5.84 cfs of water from the Big Sur River underflow via two existing wells. Water diverted will be used for the irrigation of 292 acres of coastal grasses. The two existing wells are located within the Andrew Molera State Park approximately 160 feet west of the river and 250 to 450 feet upstream of the river's confluence with the Pacific Ocean. The project is located 2 miles from the Point Sur Lighthouse and is located in Monterey County.
The applicant proposes to continue to divert 5.84 cfs for irrigation purposes from January 1 to December 31 annually for a total of 1,800 acre-feet of water annually.
We are filing a protest against said application because the proposed and existing project has the potential to have direct and cumulative impacts to the public trust southern steelhead trout fishery of the Big Sur River.
Statement of Facts
Facts which support the foregoing allegations are as follows:
1. " The Big Sur River is one of the larger, mostly pristine coastal streams south of San Francisco Bay. Within recent geological history, only the lowermost 10.5 km of the river have been accessible to steelhead. Upstream migration beyond this point, into the rugged gorge section of the river in the Ventana Wilderness, has been blocked by a natural bedrock falls. Pfeiffer Big Sur State Park is situated along a portion of the lower river where redwoods dominate the riparian zone. This far south along the California coast, fog no longer maintains the moisture climate necessary for continuous stands of redwoods, and the steep hillsides that comprise the Big Sur drainage are otherwise dominated by chaparral. The lower portion of the river flows through Andrew Molera State Park where deciduous vegetation borders the stream. " [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
2. " On 27 March 1946, the CDFG observed a fresh run of adult steelhead in the river, as far upstream as the barrier falls. Recently emerged steelhead fry were also seen downstream from the falls. Stocking of catchable rainbow trout during May-September began in 1953. Prior to that time, rainbow trout fingerlings had been planted for several years. The stocking area was a 5 km reach, mostly within Pfeiffer Bug Sur State Park. " [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
3. " On 4 January 1961, stream flow just above the lagoon was about 0.6 m3/s, and a few adult steelhead had been reported in the river. Two steelhead, about 0.9 and 4.5 kg, were caught in the surf outside the lagoon. Other steelhead were also seen outside the river mouth. A 1.4 kg steelhead was captured on 31 January 1961. " [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
4. " Fisher (1961) captured 338 juvenile steelhead in a downstream migrant trap in the lower Big Sur River, during 30 April-2 June 1959. " [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
5. " On 19 April 1961, young-of-the-year O. mykiss were seen throughout the Pfeiffer Big Sur park reach of stream, and 12.5-15 cm long juvenile were common. " [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
6. " Following several attempts and much discussion over the years regarding removal of the bedrock barrier in the lower gorge, the Big Sur above the barrier was surveyed by the CDFG and USFS during July-August 1981 to determine the length of stream which would become available to steelhead for spawning and rearing. About 56 km of the main stem and several tributaries would become accessible, as well as an additional 24 km of stream on the South Fork Big Sur River under high flow conditions. High quality spawning and rearing habitats were observed throughout the survey area. Resident rainbow trout, including young-of-the-year, were abundant in all sections surveyed, and occurred in average estimated densities of 60-100 trout/30 m. About 350 trout, 7.5-35.5 cm long, were captured on hook and line. With removal of the barrier, it was estimated that natural production of Big Sur steelhead would increase by 7-10 times. "
" Beginning in the fall of 1981 and through the fall of 1984, a series of modifications were carried out on the barrier to enhance steelhead passage. Six adult steelhead were observed by the CDFG on 18 March 1985 between Barlow Camp and the gorge. Adult steelhead have also been reportedly seen by anglers in upstream areas in subsequent years (K.R. Anderson, CDFG, pers. comm. of 9 July 1992. " [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
7. " On 7 November 1988, abundance estimates of juvenile steelhead were made by the CDFG in two sections of the lower river, each about 46 m long. Fish were sampled by electrofishing, marked, released, and resampled to make Lincoln-Peterson abundance estimates. In a section just above the confluence with Post Creek, the calculated abundance was 109 trout/30 m. These fish averaged 84 mm FL (range, 55-247 mm FL). The second section, located in Andrew Molera State Park, contained 128/30 m. Average fish length was 82 mm FL (range, 55-140 mm FL). [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
8. " During the 1992-93 season, the reported angler catch of adult steelhead in the Big Sur included one 79 cm female and several 56 cm fish (M.Fitzsimmons, CDFG, pers. comm. of 13 March 1993) ". [See Preliminary Draft; Historical Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Department of Forestry and Resource Management, University of California, Berkeley]
9. The steelhead trout resources of the Big Sur River are public trust resources and are public trust assets. The steelhead trout resources of the Big Sur River are the property of the people of the State of California. The State Water Board has a duty to protect the public trust fishery resources of the state of California when issuing water right permits.
10. The proposed diversion of 5.84 cfs of water from the underflow of the Big Sur River has the potential to adversely impact the steelhead trout fishery (all life stages) of the Big Sur River during below normal and drought conditions, as well as during low flow periods during the summer and fall. The applicant's water right application request the State Water Board to allow the applicant to divert 5.84 cfs of water during below normal and drought conditions, as well as during low flow periods during the summer and fall.
The State Water Board should order mandatory flow requirements below the point of diversion to protect the steelhead trout resources (all life stages) of the Big Sur River.
11. The Division's notice of March 25, 1994, for said application shows the applicant is presently diverting water at a rate of 5.84 cfs. The Division's notice was non-specific and did not state that the applicant is diverting the state's water without an approved "conditioned" water right permit from the State Water Board.
We firmly believe that a diverter who does not have an approved water right permit from the State Water Board, should cease said diversion as required by state law until it has acquired said water right permit from the State Water Board.
12. The Division's notice stated that the proposed project may have a potential for causing a significant effect on the environment. The notice further states that the State Water Board is the lead agency under CEQA, and will require the preparation of an Initial Study to determine whether a Negative Declaration is appropriate or whether an EIR will be necessary.
13. The CSPA and other parties recently filed a petition to list steelhead trout in California, Oregon, Washington and Idaho as either threatened and endangered under the protection of the federal Endangered Species Act. The Department of Fish and game Has determined that the southern steelhead trout are a species of special concern.
The southern steelhead fish species in coastal streams below San Francisco Bay have significantly declined. The cause of the decline are water projects. i.e. Santa Ynez River.
14. Discussions with the staff of the Division of Water Rights indicates that a few years ago there was an unauthorized diversion of the state's water from the Big Sur River in the lower reaches near the ocean. There may be other authorized and unauthorized diversion in the Big Sur River. Cumulative reductions in streamflow can have adverse impacts to various life stages of steelhead trout.
We believe the proposed Initial Study should evaluate cumulative impacts to steelhead trout resources (all life stages) resulting from: (1) the proposed diversion; (2) existing diversions; and (3) future diversions as required by 15130 of the CEQA Guidelines.
15. The proposed diversion of 5.84 cfs is for the irrigation of 292 acres of coastal grasslands. The notice did not state the reasons for the grasslands being irrigated. Based on our understanding, native grasslands do not need to be irrigated. The Initial Study should state the specific reasons for irrigating the grasslands.
16. The proposed diversion has the potential to cause adverse impacts to the amount of fresh water flowing into the Big Sur River Lagoon. Steelhead trout ulitize coastal lagoons during certain life stages. There may be threatened and endangered species and habitat in the lagoon which may be impacted by the reduction of fresh water reaching the lagoon caused by the proposed diversion. i.e. Tidewater Goby.
The CSPA Public Trust Protest is Based on the Following:
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 the Big Sur River.
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 protest is based on the Public Trust Doctrine. The statement of facts clearly shows that the public trust steelhead trout resources of the Big Sur River must be protected from adverse impacts caused by water diversions.
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 Big Sur River.
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 steelhead trout resources of the Big Sur River when approving the proposed application.
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 the Big Sur River 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 the Big Sur River 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.
Under what conditions may this public trust protest and complaint be disregarded and dismissed?
1. The CSPA request a timely copy of the Initial Study prepared by the applicant for its review and comment. In the event the applicant fails to provide the CSPA with a timely copy of the Initial Study, we are requesting the Division of Water Rights to forward a timely copy of said document and to extend the comment period so that the CSPA has the opportunity to comment on said document.
2. The CSPA expressly request the applicant and the State Water Board, as lead agency, to comply fully with the California Environmental Quality Act and its Guidelines in the preparation of said Initial Study and any other environmental document such as any proposed Negative Declaration for said application.
3. The applicant should be required by the State Water Board to prepare fishery studies such as an IFIM study to determine the daily amount of water necessary to protect and keep in good condition at all times the public trust steelhead resources (all life stages) below the points of diversion.
4. The permit issued by the State Water Board for the proposed project must have mandatory minimum daily streamflow requirements to protect and keep in good condition at all times the public trust steelhead resources (all life stages) of the Big Sur River.
5. In the event the applicant is diverting the underflow of the state's water at the existing two wells without a water right permit, the CSPA is requiring the State Water Board and its staff to enforce state law and have the applicant immediately cease diverting said unauthorized water until the applicant obtains a water right permit.
In the event the applicant is diverting the underflow of the state's water at the existing two wells without a water right permit, we are requesting the State Water Board to enforce Section 1052 of the California Water Code and require penalities of $500 per day for each day of the unauthorized diversion.
In the event the applicant is diverting the underflow of the state's water at the existing two wells without a water right permit, we further request the staff of the Division of Water Rights to consult with the legal staff of the State Water Board in determining whether the existing diversions of the state's water by the applicant is a trespass and should cease immediately.
6. The Initial Study should contain a hydrology analysis which shows the amount of water available for all months at the point of diversion during: above normal water years; normal water years; below normal water years; and drought conditions.
7. The State Water Board should require the applicant to install and maintain a fulltime measuring device below the point of diversion to determine the daily amount of water available for steelhead trout and other aquatic species. This gauge would also allow the staff of the Division of Water Rights to monitor compliance of mandatory flow requirements for steelhead trout and other aquatic species.
8. The State Water Board should require the proposed Initial Study to evaluate cumulative impacts to steelhead trout resources (all life stages) in the Big Sur River resulting from: (1) the proposed diversion; (2) existing diversions; and (3) future diversions as required by 15130 of the CEQA Guidelines.
9. Upon completion of an adequate environmental document which complys with the requirements of CEQA and its guidelines, the CSPA will submit dismissal terms and conditions or request a hearing before the State Water Board.
A true copy of this protest has been served upon the petitioner and other interested parties by first class mail.
_______________________________________
Robert J. Baiocchi, Executive Director
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Office Tel: 916-283-3767 (CSPA Quincy Office) or 916-836-0338 (Home Office) or 916-283-1007 (Law Office)
Office Fax: 916-283-5017
Date: April 18, 1994
Certificate of Service
Terry Snyder
Division of Water Rights
(Original)
Mike Falkenstein, Environmental Unit
Division of Water Rights
(As required by the Division's Notice)
Steve Herrera, Environmental Unit
Division of Water Rights
Bruce Fodge, Environmental Unit
Division of Water Rights
John Turner, Chief
Environmental Services
Department of Fish and Game
Wayne White, State Supervisor
U.S. Fish and Wildlife Service
Jim Crenshaw, President
California Sportfishing Protection Alliance
Michael Jackson, Counsel
California Sportfishing Protection Alliance
Bill Jennings, Chairman
California Sportfishing Protection Alliance
Tom Gregory
California Sportfishing Protection Alliance
Carmel River Steelhead Association
c/o Dave Heaslett, Counsel
James J. Hill III, Applicant
c/o Adolph Moskovitz
400 Capitol Mall - 27th Floor
Sacramento, CA 95814-4417
Interested Parties