State of California
Before the State Water Resources Control Board
Exxon Company USA, Applicant
Application 30249
Canada Del Corral thence Pacific Ocean
Santa Barbara 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 Canada Del Corral Creek.
Application 30249
The Applicant proposes to construct facilities to place 500 acre-feet per annum of water from Canada Del Corral into underground storage. Water will be collected from Canada Del Corral Creek by perforated pipe to an offset well, from which it will be conveyed northeasterly upstream at a maximum rate of 2 cfs via 500 feet of 4-inch diameter pipe to several injection wells. Water will be extracted from underground storage in the same area as the injection wells for use in industrial processes such as crude oil treatment and co-generation of power. The project is located about 2 miles northwest of El Capitan Beach State Park.
The applicant seeks a water right for 500 acre-feet of water for industrial purposes from December 1 to July 1 annually. [See Division of Water Rights Notice of April 1, 1994; Water Right Application 30249; Exxon Company, USA.]
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 (all life stages), other fish species (all life stages), aquatic species (all life stages) water quality and riparian habitat of Canada Del Corral Creek.
Statement of Facts
Facts which support the foregoing allegations are as follows:
1. The steelhead trout resources and other fish and wildlife resources of Canada Del Corral are public trust resources, and are public trust assets. The steelhead trout resources and other fish and wildlife resources of Canada Del Corral are the property of the people of the State of California. The State Water Board has a duty to protect the public trust fish and wildlife resources of the State of California when issuing water right permits.
2. " CANADA DEL CORRAL DRAINAGE - No formal records of an historical steelhead population were found for Canada del Corral. However, this small stream did receive CDFG [California Department of Fish and Game] plants of juvenile steelhead rescued from the Santa Ynez River during the 1940's. In addition, documents contained in the CDFG file expressed concern for the steelhead resource in this creek in relation to pollution from oil extraction operations in the lower stream area. " [We reference: Preliminary Draft; Historic Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Robert G. Titus, Postgraduate Researcher, and Don C. Erman, Professor, Department of Forestry and Resource Management, 145 Mulford Hall, University of California, Berkeley, CA 94720, USA]
3.. The proposed diversion of 500 acre-feet of water per annum from Canada del Corral has the potential to adversely impact the steelhead trout fishery (all life stages), other fish and aquatic species and their habitat and riparian habitat of Canada Del Corral during below normal and drought conditions, as well as during low flow periods during March, April, May, June and July. The applicant's water right application request the State Water Board to allow the applicant to use 500 acre-feet of water during below normal and drought conditions, as well as during low flow periods from December to July.
The State Water Board should order mandatory flow requirements below the point of diversion to protect the steelhead trout resources (all life stages), other fish and aquatic species and their habitat and riparian habitat of Canada Del Corral Creek.
4. The Division's notice of April 1, 1994, for said application is unclear. It appears the Applicant may also be diverting the underflow of Canada Del Corral Creek in conjunction with this application. The diversion of the underflow of any waterway requires the diverter to have a water right permit from the State Water Board.
5. In the Division's notice of April 1, 1994, it is stated that:
According to the California Environmental Quality Act and its Guidelines, the Santa Barbara County Resources Management Agency is the lead agency and will be responsible for the preparation of appropriate environmental documents for the project and for determining whether or not the project will cause a significant effect on the environment. "
The following are the comments of the CSPA concerning the Division's notice:
o The Division's notice did not provide the name of the responsible official of the Santa Barbara Resources Management Agency. Who is the responsible official for the Santa Barbara County Resources Management Agency?
o The Division's notice did not provide the address of the Santa Barbara Resources Management Agency. What is the address of the Santa Barbara County Resources Management Agency?
o The Division's notice did not describe who is the responsible agency under CEQA and its guidelines. Who is the responsible agency under CEQA?
o The Division's notice did not describe why the Division of Water Rights selected the Santa Barbara County Resources Management Agency as the lead agency under the requirements of CEQA and its guidelines. Why was the Santa Barbara Resources Management Agency selected as the lead agency for Exxon's Project?
o The Division did not describe the role of the Applicant in the preparation of a environmental document for said application. What is the role of Exxon in the CEQA process?
We are requesting the Division to provide the CSPA with information regarding the above questions and not the applicant when the applicant files it's answer to the CSPA protest.
6. 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 south of San Francisco Bay have significantly declined. The cause of the decline are water projects. i.e. Santa Ynez River.
7. There may be other authorized and/or unauthorized diversions of the surface flow and underflow of Canada Del Corral. Cumulative reductions in streamflow can have adverse impacts to various life stages of steelhead trout, other fish species and their habitat, aquatic species and their habitat, and riparian habitat. Section 15130 of the CEQA guidelines requires that cumulative impacts are evaluated.
We believe the proposed Initial Study should evaluate cumulative impacts to steelhead trout resources (all life stages), other fish species and their habitat, aquatic species and their habitat, and riparian habitat resulting from: (1) the proposed diversion; (2) existing diversions; and (3) future diversions as required by 15130 of the CEQA Guidelines.
8. The proposed diversion has the potential to cause adverse impacts to the amount of fresh water flowing into the Canada Del Corral Lagoon. Steelhead trout and other fish species utilize 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.
9. Documents contained in the CDFG file expressed concern for the steelhead resource in this creek in relation to pollution from oil extraction operations in the lower stream area. We are requesting the Division of Water Rights, State Water Quality Control Board, and the Department of Fish and Game to conduct investigations to determine whether Exxon Company's operation in Canada Del Corral Creek has caused adverse impacts to fish species, aquatic species and water quality in that drainage.
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 Canada Del Corral 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 protest is based on the Public Trust Doctrine. The statement of facts clearly shows that the public trust steelhead trout resources of Canada Del Corral Creek 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 Canada Del Corral 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 steelhead trout resources of Canada Del Corral Creek 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 Canada Del Corral 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 Canada Del Corral 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.
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 Santa Barbara County Resources Management Agency for its review and comment. In the event the Santa Barbara County Resources Management Agency 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 Santa Barbara County Resources Management Agency and the State Water Board to comply fully with the California Environmental Quality Act and its Guidelines in the preparation of said Initial Study and any other environmental document for the proposed project
3. The applicant must be required by the State Water Board to fund and 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) and their habitat, other fish species and their habitat, aquatic species and their habitat and riparian habitat below the point of diversion to the Pacific Ocean.
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), other fish species, aquatic species and riparian habitat of Canada Del Corral Creek.
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 penalties of $500 per day for each day of the unauthorized diversion.
6. The Initial Study must 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; dry year; and critically dry year conditions.
7. The Santa Barbara County Resources Management Agency must conduct an inventory of all fish and wildlife species in Canada Del Corral Creek. Said inventory should be included in the environmental document for the project. The inventory must consist of present populations and habitat types.
The Santa Barbara County Resources Management Agency must conduct an inventory of all riparian vegetation in Canada Del Corral Creek. Said inventory should be included in the environmental document for the project. The inventory must consist of present riparian vegetation types.
8. The State Water Board must require the proposed Initial Study to evaluate cumulative impacts to steelhead trout resources (all life stages), other fish species, aquatic species and riparian habitat in Canada Del Corral Creek resulting from: (1) the proposed diversion; (2) existing diversions; and (3) future diversions; as required by 15130 of the CEQA Guidelines.
9. The State Water Board must require the applicant to install and maintain fulltime measuring devices below all points of diversion to determine the daily amount of water available for steelhead trout, other fish species and 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, other fish species and aquatic species.
10. Upon completion of an adequate environmental document which complys fully 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.
11. We are requesting the Division of Water Rights, State Water Quality Control Board, and the Department of Fish and Game to conduct investigations to determine whether Exxon Company's operations in Canada Del Corral Creek has caused adverse impacts to fish species, aquatic species and water quality in that drainage.
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
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: May 23, 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
Brian Trautwein
Santa Barbara Chapter Urban Creeks Council
Exxon Company, USA
c/o David Gardner
Shaal, Gardner & Dunne, Inc.
5855 Olivas Park Drive
Ventura, CA 93003-7672
Interested Parties