Conejo SWRCB Applic 29408 1996

State of California

Before the State Water Resources Control Board

Water Right Application 29408 and Wastewater Change Petition No. 6 of the City of Thousand Oaks

and

Availability of Unappropriated Water for Applications 29816, 29819, 29829, 29581, 29959, 30037, 30092 and 30194

of Fitzgerald Ranch, Stanley and Sandra Goldbery, B-H Farm, Robert B. Lamb, Lena M. Jones Trust, Richard Rogers, Stanley and Sandra Goldbery, and Camrosa Water District

Arroyo Conejo, Conejo Creek and Calleguas Creek Watersheds and Mugu Lagoon thence Pacific Ocean

Hearing of May 13 and 14, 1996

Procedural Due Process Rights Complaint by the California Sportfishing Protection Alliance Regarding the Above Mentioned Hearing Process

This Procedural Due Process Complaint is being filed by the California Sportfishing Protection Alliance with the State Water Resources Control Board regarding the above mentioned proposed hearing on May 13 and 14, 1996. The CSPA believes its procedural due process rights were violated by the staff of the Division of Water Rights. The staff of the Division of Waters conducts business for the State Water Resources Control Board and acts on its behalf.

The Complaintant - California Sportfishing Protection Alliance

1. The name of the complaintant is the California Sportfishing Protection Alliance. The mailing address of the California Sportfishing Protection Alliance is P.O. Box 357, Quincy, CA 95971. The representative of the California Sportfishing Protection Alliance in this matter is: Robert J. Baiocchi, Consultant, CSPA. The telephone numbers of the representative of the CSPA in this complaint are as follows: 916-836-1115 or 916-283-1007.

2. The nature of the complaint will follow as submitted.

3. The manner in which the complaintant was affected will follow as submitted.

4. The relief requested by the complaintant will follow as submitted.

Standing of the California Sportfsihing Protection Alliance

5. The CSPA represents members of the public who are unable to represent themselves in this proceeding. The CSPA has standing with the SWRCB in many water right matters pertaining to the protection of the public trust resources of the State of California. In 1992 the CSPA appeared before the SWRCB at hearings, with standing, on about 75 days.

The waters of the State of California are owned by the people, subject to appropriation under the California Water Code. An interested party such as the CSPA needs to be a party with standing in this proceedings so that the public trust resources of Arroyo Conejo, Conejo Creek, Calleguas Creek, and Mugu Lagoon are protected. And that the beneficial uses of water are balanced between the trust assets and the water users.

We reference Sections 100, 102, 104, and 1257 of the California Water Code.

The common law public trust doctrine requires that the uses of the waters of the State of California are balanced and put to beneficial use.

We reference National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 189 Cal.Rptr. 346,658 P.2d. 709 cert. denied 464 U.S. 977.

We submit that the following will show that the CSPA acted diligently in pursuing Application 29408, Change Petition WW#6, and Application 25981, and should have been included as a party with standing in the hearing proceeding. Standing means on an equal level with the City of Thousand Oaks, Robert B. Lamb, applicant, Application 29581, and with the other accepted parties in the hearing proceedings.

The Proposed Hearing of May 13 and 14, 1996

6. This hearing was scheduled by the State Water Resources Control Board (hereinafter known as "SWRCB") to receive evidence which will assist the SWRCB in determining whether or not it is appropriate to approve water right Application 29408 and Wastewater Change Petition No. 6 (WW No. 6) of the City of Thousand Oaks (hereinafter known as the "City"), and the appropriate conditions for any such approval.

In addition to considering the City's proposed project, the hearing will also consider the issue of the quantity of unappropriated water which is available to serve Applications 29816, 29819, 29829, 29559, 30037, 30092 and 30194 of the above mentioned applicants. The only issue considered with respect to Applications 29816, 29819, 29829, 29559, 30037, 30092 and 30194 will be the availability of unappropriated water for diversion by the applicants. The other issues raised by protestants to those applications will be addressed in the context of the staff analysis and recommendations based on the field investigation conducted on October 28, 1992 and will not be considered during this hearing.

CSPA Excluded as a Party With Standing From the Hearing Process of May 13 & 14, 1996

7. The CSPA was excluded from the hearing process as a party to exchange information, present opening and closing statements, present testimony, present evidence, and cross examine witnesses. Considering the involvement of the CSPA with Water Rights Application 29408, Petition for Change WW#6, and Water Rights Application 29581, the CSPA should have been given standing by the SWRCB to participate in the hearing process. It was not. Consequently, the procedural due process rights of the CSPA were violated.

Robert B. Lamb Application 29581 - CSPA Protest Accepted by the SWRCB

8. On October 2, 1989, Robert B. Lamb applied to the SWRCB to divert water from the Conejo Creek Watershed. The application (Application 29581) was notice by the SWRCB on July 20, 1990. The deadline date for filing protests was about August 29, 1990 (40 days). On August 15, 1990, within the deadline period, the CSPA filed a timely protest, and the protest was accepted by SWRCB on August 24, 1990. On September 13, 1990, the staff of the Division of Water Rights gave the applicant an extension of 30 days to submit a response to the CSPA protest. On October 10, 1990, the applicant's agent filed an answer to the CSPA protest. (Our Emphasis)

Robert B. Lamb's Application 29581 is part of this hearing process. However, the CSPA with an accepted protest against Application 29881, is being excluded from participating in the hearing process as a protestant and as a interested party with standing. (Our Emphasis)

We reference the application applied for with the SWRCB by Robert B. Lamb (Application 29581); October 2, 1989.

We reference Notice of Application 29581 to Appropriate Water; SWRCB; July 20, 1990.

We reference CSPA protest against Application 29581 accepted by Division of Water Rights; August 24, 1990.

We reference request and approval of extension of time to answer CSPA protest; Division of Water Rights; September 13, 1990.

We reference answer to CSPA protest by agent's for Robert B. Lamb, applicant, application 29581; October 10, 1990.

Water Rights Application 29408 and Petition WW#6 - City of Thousand Oaks

9. Water Rights Application 29408 and Petition WW#6 to change the place of use and purpose of use of treated water of the City of Thousand Oaks was noticed by the Division of Water Rights on March 9, 1990. The deadline date for filing protests on the water right application and petition was May 15, 1990.

Section 1330 of the California Water Code provides that any person interested, within the time allowed in the notice of application or within such further time as may, for good cause shown, be allowed by the board, file with it a written protest against the approval of an application. This complaint constitutes good cause to allow the CSPA to participate as a party with standing in the proceedings.

The CSPA request that the relief requested in this complaint is granted by the SWRCB so that its procedural due process rights are not further violated, and that it is given the opportunity to be heard by the SWRCB on the above mentioned water rights matters.

February 2, 1989 - The City's Water Rights Application Filed With the SWRCB

10. On February 2, 1989, the City applied to the SWRCB for a permit to appropriate water.

We reference Notice of Application 29408 to Appropriate Water and Petition WW#6 to Change the Place of Use and Purpose of Use of Treated Water; March 9, 1990.

November 30, 1989 - The City Petition to Change the Place of Use and Purposes of Use filed With the SWRCB

11. On November 30, 1989, the City petitioned the SWRCB to change the place of use and purpose of use of treated wastewater.

We reference Notice of Application 29408 to Appropriate Water and Petition WW#6 to Change the Place of Use and Purpose of Use of Treated Water; March 9, 1990.

March 9, 1990 - Water Rights Application 29408 and Petition WW#6 Noticed by the SWRCB

12. On March 9, 1990, Water Right Application 29408 and Petition WW#6 were notice by the SWRCB for protests. The deadline date for filing protest was May 15, 1990.

We reference Notice of Application 29408 to Appropriate Water and Petition WW#6 to Change the Place of Use and Purpose of Use of Treated Water; March 9, 1990.

October 2, 1990 to July 20, 1990 - Robert B. Lamb Application 29581 - CSPA Protest Accepted by the SWRCB

13. As stated above under No. 8.

August 17, 1990 - The City's Deficient Negative Declaration Submitted to SWRCB

14. On August 17, 1990, the City submitted a Negative Declaration to the Division of Water Rights for Water Rights Application 29408.

We reference letter of August 17, 1990 from Greg Smith, Senior Planner, City of Thousand Oaks to Nick Aguilera of the State Water Resources Control Board; Negative Declaration - Arroyo Conejo Water Rights Application No. 29408.

September 4, 1990 - CDFG Challanges Deficient Negative Declaration - Request for Environmental Impact Report

15. On September 4, 1990, the CDFG, an accepted party in this proceeding, challanged the City's Negative Declaration.

The most important comments in the CDFG response of September 4, 1990, was that "We do not concur with the Negative Declaration because 2 cfs of bypass flow at diversion point #3 proposed as mitigation is inadequate and cannot fully offset the adverse impacts to biological resources between the point of diversion and Mugu Lagoon."

"We recommend that a site specific Focussed Environmental Impact Report be prepared for a thorough assessment of the direct, indirect, and cumulative impacts to biological resources of the entire drainage basin up to and including Mugu Lagoon."

We reference letter of comment by the CDFG of September 4, 1990 to Greg Smith, Senior Planner, City of Thousands Oak regarding the Negative Declaration; at page 1 and page 3.

September 21, 1990 - CSPA Challanges the Deficient Negative Declaration - Request for Environmental Impact Report

16. On September 21, 1990, in a letter to the Division of Water Rights, the CSPA, a party not accepted as a participant in the hearing process for this hearing, with the CDFG letter of September 4, 1990 as an attachment, stated that the City should be required by the SWRCB to prepare an Environmental Impact Report.

We reference CSPA letter of September 21, 1990 to Walt Pettit, Chief, Division of Water Rights; Negative Declaration; City of Thousands Oaks; Notice of Application 29408.

October 8, 1990 - Draft Environmental Impact Report by the City of Thousand Oaks

17. In a cover letter dated October 8, 1990 to Robert J. Baiocchi, CSPA, from the City of Thousand Oaks regarding Water Rights Application 29408, the City provided notice of preparation of an Draft Environmental Report (EIR) for Water Rights Application 29408.

Consequently, the CSPA request for an EIR to be prepared by the City was made by the City.

October 31, 1990 - CSPA Response to Notice of Preparation for the City of Thoysand Oaks' Draft Environmental Impact Report

18. On October 31, 1990, Robert J. Baiocchi representing the CSPA, responded to the City's NOP of an EIR for Water Rights Application 29408. The scoping letter of October 31, 1990 by the CSPA requested the City in the Draft EIR to disclose and evaluate the following issues: Vegetation, Fish and Wildlife; Hydrology and Water Quality; Local Growth; Land Use and Agricultural Impacts; Cumulative impacts; and Alternatives. A copy of the CSPA was forwarded to Walt Pettit, Chief, and Mike Falkenstein, Environmental Unit, Division of Water Rights.

In conjunction with the accepted CSPA protest against Application 29581, the CSPA submittal of October 31, 1990 regarding the environmental document for Application 29408, shows good cause that the CSPA should have been included as a party to participate in the hearing process at the hearing of May 13 and 14, 1996.

We reference letter of October 8, 1990 to Robert J. Baiocchi, CSPA, from Donald H. Nelson, Director of Utilities, City of Thousand Oaks, regarding Water Rights Application 29408 and the Notice of Preparation of a Draft Environmental Impact Report; And attached Notice of Preparation; attached Environmental Review Document; attached Initial Study; attached Determination (CEQA); attached Rare and Endangered Plant Survey of the Proposed Hill Canyon Wastewater Diversion Project (Richard A, Burgess, Environmental Biologist); and Black and White Photos.

We reference letter of October 31, 1990 from Robert J. Baiocchi, CSPA, to Donald Nelson, Director of Utilities, City of ThousAnd Oaks, refarding Water Right Application 29408; NOP; Draft EIR.

November 9, 1990 - Evaluation Required by Division of Water Rights

19. On November 9, 1990, the Division of Water Rights advised all parties, which included the CSPA, regarding Water Right Application 29408 that:

"The Division of Water Quality and Water Rights (Division) has received a request for an evaluation of the benefits and detriments, including the economic and environmental facts, of the present and prospective beneficial uses of the waters of the Conejo Creek stream system (including the treated wastewater which the City releases into the stream system). The request was filed by Mr. David Lamb on August 27, 1990, pursuant to Title 23, California Code of Regulations Section 756, on behalf of several of the protestants to Application 29408." (Emphasis Added)

"An economic analysis of benefits and detriments of the projects proposed under Application 29408 and all other unpermitted applications which have been filed on the Conejo Creek system subsequent to this application will be evaluated." - "The State Board will use the environmental documents prepared for the projects (the related applications) and evidence received in any proceeding relative to the applications as sources of information." (Emphasis Added)

"6. The analysis must include a summary of both the water use and the environmental factors associated with the various water uses. Some examples are possible enhancement or mitigation of flows and enhancement or mitigation of water quality downstream which may, in turn, result in economic benefit or economic mitigation to downstream water users and cause a reduction in economic benefits to direct users of project water by reducing the amount of water available for their use." (Emphasis Added)

We reference letter to all interested parties from Dave Cornelius, Chief, Hearing Unit, Division of Water Rights; Application 29408 of the City of Thiusand Oaks, Conejo Creek and tributaries in Ventura County; November 9, 1990; With copies to Robert J. Baiocchi, CSPA and 41 other interested parties.

In conjunction with the accepted CSPA protest against Application 29581 by the Division of Water Rights, the CSPA submittal of October 31, 1990 regarding the environmental document for Application 29408, and the Division of Water Rights submittal of November 9, 1990, which included the CSPA, shows good cause that the CSPA should have been included as a party to participate in the hearing process at the hearing of May 13 and 14, 1996.

October 28, 1992 - Onsite Field Investigation by the Division of Water Rights

20. On October 28, 1992 a field investigation was conducted by the Division of Water Rights regarding the water right applications. One of those water right application was Application 29581, of which the CSPA is a protestant. The CSPA attended the field investigation. (Our Emphasis)

November 22, 1994 - Notice of Notice Of Preparation by City of Thousand Oaks Regarding Draft Subsequent Environmental Impact Report

21. On November 22, 1994, the City directed a letter to Robert J. Baiocchi of the CSPA, regarding water right application 29408 and Petition WW#6 and a notice of preparation (NOP) of a Draft Subsequent Environmental Impact Report (SEIR). (Our Emphasis)

We reference the Letter of November 22, 1994 from the City of Thousand Oaks to Robert J. Baiocchi, CSPA, regarding Water Rights Application No. 29408 and Petition WW-6; Notice of Preparation of a Draft Subsequent Environmental Impact Report (SEIR).

December 20, 1994 - CSPA's Scoping Comments Regarding City's Subsequent Draft Environmental Impact Report

22. On December 20, 1994, acting in good faith, the CSPA submitted scoping comments to the City regarding the City's NOP of a Draft Subsequent EIR.

We reference scoping letter from Robert J. Baiocchi, CSPA, to City of Thousand Oaks; Public Works Department; regarding Water Rights Application No. 29408 and Petition WW-6; Notice of Preparation of a Draft Subsequent Environmental Impact Report (SEIR).

March 31, 1995 - Submittal of Draft Subsequent Draft Environmental Impact Report by the City of Thousand Oaks for Water Right Application No. 29408 and Change Petition WW6

23. On March 31, 1995 the City's Agent, CH2MHill, submitted the Draft Subsequent EIR for Water Rights Application 29408 and Petition WW#6. The CSPA did not submit comments to the Draft Subsequent EIR because the CSPA felt the opportunity to show the deficienies in the document was at a hearing before the SWRCB. However, the CSPA's prodecural due process rights were violated when it was not allowed to participate at the forth coming hearing as a protestant (Application 29581 - Lamb), and also as an interested party with standing. Clearly, as shown in this submittal, the CSPA acted in good fact, and diligently and pursued the City's water rights application and water rights change petition, and should have been included as a protestant and interested party with standing in the hearing process.

The most glaring deficient in the subsequent Draft EIR is that the document failed to evaluate the cumulative impacts to the biological resources (public trust resources) of the Conejo watershed, including Mugu Lagoon, from the City's Application 29408 and Petition WW#6, and also as a result of Applications 29816, 29819, 29829, 29581, 29959, 30037, 30092 and 30194, and existing water diversions in the watersheds. (Our Emphasis) However, the CSPA is precluded from providing testimony to the SWRCB at the scheduled hearing regarding the cumulative impacts to public trust resources because it procedural due process rights were violated because it was not included as a party with standing.

We reference Chapter 4; Impact Overview, 4.3 Cumulative Impacts at pages 4-1 and 4-2; Draft Subsequent Environmental Impact Report; Water Rights Application No. 29408 and Peition WW-6; SCH 90010766; City of Thousand Oaks; Prepared by CH2MHill; March 1995.

It is clear that the SWRCB should prepare, and have prepared, an environmental cumulative impact analysis of the the watersheds, including Mugu Lagoon, as a result of Application 29408, Petition WW#6, Applications 29816, 29819, 29829, 29581, 29959, 30037, 30092 and 30194, and other existing water diversions. However, the CSPA is precluded from providing testimony to the SWRCB at the scheduled hearing regarding the cumulative impacts to public trust resources because it procedural due process rights were violated because it was not included as a party with standing.

Application 29408 and Change Petition WW#6 Should Have Been Re-Noticed by the SWRCB and its Staff Because of the Project Changes (New Project) and New Information

24. On February 2, 1989, the City applied to the SWRCB for a water right permit to appropriate water. That was over seven years ago.

On November 30, 1989, the City petitioned the SWRCB to change the place of use and purpose of use of treated wastewater. That was also over six years ago.

On March 6, 1990, the City's Application 29408 and Petition WW#6 were noticed by the SWRCB for formal protests. That was over six years ago.

On October 2, 1989, Robert B. Lamb applied to the SWRCB for a water right permit. That was also over six years ago.

On July 20, 1990, Robert B. Lamb's Application 29581 was noticed by the SWRCB and protested by the CSPA. That was nearly six years ago.

We have no specific information and data regarding when the other water right applications were filed with the SWRCB, excepting that Application 30194 was filed after the field investigation of October 28, 1992. Consequently it can be concluded that Applications 29816, 29819, 29829, 29959, 30037, and 30092 were applied for between February 2, 1989 and October 28, 1992.

The Subsequent Draft EIR prepared by the City and submitted on March 31, 1995, states that the City has prepared this document to address new issues or changes in the project that were not known or could have been known when the City's Final EIR on the water rights application and petition were certified in January 1992. Because of the admitted new changes to the proposed project and new information, the Division of Water Rights should have re-noticed water rights Application 29408 and Petition WW#6.

Because the City's application and petition were not re-noticed because of new information and new changes in the project, interested parties are now being precluded from filing protests and having any standing as a participating parties at the May 13 and 14, 1996 hearing. We believe that violates the procedural due process rights of parties such as the CSPA and others who were precluded from having standing as protestants for Application 29408 and Change Petition WW#6, and the other applications before the SWRCB at the hearing.

Given the time between the filing of the water right application and petition, the filing of numerous other applications, numerous CEQA documents prepared by the City, and the new changes in the project (new project), and the new information, the application and petition should be re-noticed to serve the procedural due process rights of the CSPA and other interested parties.

The public is on a learning curve regarding water rights matters in California. In many cases, once an interested parties finds out about an application to appropriate water that will affect the interest party whether it be its property, water rights, or the environment, the protest period has closed and they are stipped of their procedural due process rights. Policy statements turn interested parties into "cripples" where attorneys representing the applicants, can abuse them at hearings before the SWRCB.

Members of the SWRCB are honorable and responsible people, but the members of the SWRCB need to understand that the procedural due process rights of the public should be served at all times. And the SWRCB members stand responsibility for procedural due process rights violations caused by their staff.

Policy Statements Process at Hearings Before the SWRCB Flies in the Face of the Procedural Due Process Rights of Interested Parties

25. It is true that the CSPA could file a policy statement with the SWRCB at the proposed hearing. But filing a policy statement is a waste of time because of the restrictions basen on the public by the SWRCB rules of procedure. In our view, policy statements provides the party making the policy statement with no standing and they are prohibited from providing pertinent testimony, evidence and exhibits. At a recent hearing before the SWRCB, an interested party making a policy statement was unreasonably dealt with by legal counsel for the applicant, given no weight by the hearing officer and the SWRCB's legal counsel because of the restrictions shown in the hearing notice under "policy statements", and exhibits which were attempted to be included in the hearing record by the interested party were denied vigorously.

We reference SWRCB Water Rights Hearing; South Fork American River; October 24 and 25, 30, and 31, 1995; Regarding (A) Applications 29919, 29920, 29921, 29922, and Petition for Partial Assignment of State filed Application (SFA) 5645 (8) as amended May 25, 1994, of the El Dorado County Water Agency and El Dorado Irrigation District; (B) Applications 30062 as amended June 9, 1995, 30453, and SFA 5645 (11) of Kirkwood Associates, Inc. and U.S. El Dorado National Forest; (C) Application 30204 of Kirkwood Meadows Public Utility District and U.S. El Dorado National Forest; (D) Application 30219 and SFA 5645 (9) of Alpine County Board Supervisors and Alpine County Water Agency; and (E) Application 30218 and SFA (10) of County of Amador.

The SWRCB has appparently adopted informally rules of procedure regarding Policy Statements at public hearings. We reference the Hearing Notice of April 9, 1996 at page 13 under Policy Statements.

Sections 761 to 766; California Code of Regulations; Title 23; provides for procedures at hearings before the SWRCB. A review of Sections 761 to 766 does not specificially show the specific language and restrictions placed on policy statements as shown on page 13 of the hearing notice of April 9, 1996 for Water Right Application 29408 and Wastewater Change Petition No. 6, and other water right applications.

We reference Sections 761 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) & (k) [Procedure at Hearings]; Section 762 (a) (b) (c) (d) & (e) [Witnesses and Exhibits].

We reference Regulations Pertaining to Protests and Hearings; California Code of Regulations; Title 23. Waters; Division 3. State Water Resources Control Board; Chapter 2. Apprpriation of Water; Article 9, 10, 11, and 12; 1994; California State Water Resources Control Board.

A review of the California Water Code does not specificially show the specific language and restrictions placed on policy statements as shown on page 13 of the hearing notice of April 9, 1996. We reference the California Water Code.

According to the specific language under Policy Statements on page 13 of the hearing notice of April 9, 1996, the following restrictions are stated:

"POLICY STATEMENTS:" "A policy statement is a nonevidential statement". It may include (1) the policy views and position of the speaker, (2) non-expert analysis of evidence that already has been presented, or (3) arguments concerning the contents the contents of environmental documents. Persons who wish to make only a policy statement may do so, subject to the following provisions:"

"a. Persons making such statements will not be sworn or asked to affirm the truth of their statements."

"b. Such persons must not attempt to use their statements to present evidence of facts, either orally or by intriduction of written exhibits." (This provision is underlined in the hearing notice under Policy Statements at page 13)

"c. At the discretion of the hearing officer, questions may be addressed to persons making only policy statements for the purpose of clarifying their statements. However, such persons shall not be subject to cross-examination."

"d. Such statements are not subject to the prehearing requirements noted above for testimony or exhibits. All persons intending to appear, however, are requested to submit a notice of intent to appear on the enclosed form."

Consequently, in the case of the the CSPA in this matter, that specific language violates the procedural due process rights of the CSPA (and the public) in participating in the hearing process. The waters of the State of California is the property of the people (the public) and the public trust resources of the State of California are the property of the people (the public). Yet the public is denied the opportunity to participate as the applicants are allowed to and provide information, data, and evidence to protect their interest in the waters and the public trust resources in which they own.

Are Procedural Due Process Rights Violations Reasonable

26. Section 765; CCR; Title 23; states that "[R]eguest for inordinate dalay of hearings or in conducting stipulated proceedings in lien of hearing will be denied. This provision points to Section 1058 of the California Water Code as the authority for this provision of the CCR. Section 1058 of the California Water Code simply states that " The Board may make such reasonable rules and regulations as it may from time to time deem advisable in carrying out its power and duties under this code".

The relief requested portion of this complaint will not disorderly affect the hearing process. The relied requested portion of this complaint will give the CSPA and the public the procedural due process rights they are entitled to under California law, and will enable the CSPA and the public to become parties with standing and the opportunity to become involved with standing in the water rights process in California.

Relief Request by the California Sportfishing Protection Alliance

1. That the hearing of May 13 & 14, 1996 is postponed because of procedural due process rights violations;

2. That the City of Thousand Oaks Water Rights Application 29408 and Change Petition WW#6 are re-notice by the SWRCB to allow for protests by the CSPA and any other interested parties because of the new project and new information;

3. That the CSPA be included as a participant with standing in any hearing scheduled by the SWRCB for Water Rights Application 29408 and Change Petition WW#6, and any hearing which involves Water Rights Application 29581;

4. That the SWRCB answer this complaint within a reasonable period of time;

5. That the CSPA be given the opportunity to respond to the SWRCB's answer to this complaint;

6. That all members of the SWRCB are given copies of this complaint, and that the members of the SWRCB collectively make a decision on this complaint;

7. That the decision of the SWRCB regarding this procedural due process complaint be included in the hearing record for the hearing of May 13 and 14, 1996, and that the SWRCB's decision on the subject water right applications and change petition, and other applications, include this procedural due process rights complaint;

8. This complaint is not testimony nor is it a policy statement. Consequently eight (8) copies of the complaint will not be provided to the Division of Water Rights as required by the hearing notice;

9. The CSPA reserves the right to file a petition of reconsideration with the SWRCB concerning any decision it may make as a result of the hearing of May 13 and 14, 1996;

10. The CSPA reserves the right to file litigation against the SWRCB as a result of this complaint.

All parties listed by the SWRCB on the public hearing notice to exchange information and allowed to participate at the hearing of May 13 & 14, 1996 with standing, are being provided with copies of this complaint to satisfy their procedural due process rights.

Respectfully Submitted

________________________________________________

Robert J. Baiocchi, Consultant

For: California Sportfishing Protection Alliance

P.O. Box 357

Quincy, CA 95971

Bus Tel: 916-836-1115 or 916-283-1115

Dated: May 4, 1996

Certificate of Service

Members of the State Water Resources Control Board

Paul R. Bonderson Building

901 P Street

P.O. Box 2000

Sacramento, CA 95812-2000

(Original and 4 Copies)

City of Thousand Oaks

c/o Stuart L. Somach

400 Capitol Mall, Suite 1900

Sacramento, CA 95814-4407

David Lamb

Milbank, Tweed, Hadley and McCloy

601 S. Figueroa, 30th Floor

Los Angeles, CA 90071

Nancee Murray, Legal Affairs

Paul Forsberg, Environmental Service

Department of Fish and Game

c/o Nancee Murray

1416 Ninth Street, 12th Floor

Sacramento, CA 95814

Stanley and Sandra Goldberg

c/o Philip Drescher

P.O. Box 48

725 E. Main Street, Suite 306

Santa Paula, CA 93060

Lena M. Jones Trust

c/o Howard Jones

4009 Sunset Avenue

Oxnard, CA 93035

B-H Farms et al.

1194 Pancho Road

Camarillo, CA 93012

Camrosa County Water District

7385 E. Santa Rosa Road

Camarillo, CA 93011-7000

Roger Family Trust

c/o John Cermak Jr.

Rodi, Pollock, Pettker, Galbraith & Phillips

801 S. Grand Avenue, Suite 400

Los Angeles, CA 90017

Steve Volker, Esq.

Sierra Club Legal Defense Fund

180 Montgomery Street, Suite 1400

San Francisco, CA 94104

Michael Jackson, Esq.

P.O. Drawer 207

Quincy, CA 95971

Jim Crenshaw, President

California Sportfishing Protection Alliance

1248 East Oak Avenue, Suite D

Woodland, CA 95695

Bill Jennings, Chairman

California Sportfishing Protection Alliance

3536 Rainier Avenue

Stockton, CA 95204

Cynthia Leake, Representative

Sierra Club

60 Caleta Drive

Camarillo, CA 93012

Janet Beymer

Environmental Coalition

982 Mission Terrace

Camarillo, CA 93010

Interested Parties

The CSPA acting in good faith and being a responsible public interest organization, has appeared before the SWRCB as a protestant in numerous water rights hearings. In 1992, the CSPA appeared before the SWRCB on about 75 days of hearing on several matters before the SWRCB.

Standing

1. The CSPA is not a formal protestant in this proceeding. The CSPA is an interested party. However, the CSPA represents members of the public who are unable to represent themselves in this proceeding. The CSPA has standing with the SWRCB in many water right matters pertaining to the public trust resources of the State of California. An interested party such as the CSPA need not be a protestant to request the SWRCB to enforce state law and regulations which pertain to all of the Water Right Applications before the SWRCB in this proceeding.

Public Trust Resources Owned by the People

2. An interested party such as the CSPA need not be a protestant in this proceeding to request the SWRCB to protect the public trust resources of Arroyo Conejo, Conejo Creek, Calleguas Creek, and Mugu Lagoon. The public trust resources are public trust assets which belong to the people. The SWRCB has a duty and responsibile in protecting the public trust resources of Arroyo Conejo, Conejo Creek, Calleguas Creek, and Mugu Lagoon, including other waterways in California.

We reference National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 189 Cal.Rptr. 346,658 P.2d. 709 cert. denied 464 U.S. 977.

Waters of the State - Property of the People

3. The waters of the State of California are owned by the people, subject to appropriation under the California Water Code. An interested party such as the CSPA need not be a protestant to request the SWRCB that the waters of Arroyo Conejo, Conejo Creek, Calleguas Creek, and Mugu Lagoon are put to full beneficial uses, and that all beneficial uses such as adequate water (flows) for the public trust resources and water for the applicants are balanced And put to full beneficial use for all beneficial purposes.

We reference Sections 100, 102, 104, and 1257 of the California Water Code.

The Common Law Public Trust Doctrine - Balancing of Beneficial Uses

4. The common law public trust doctrine requires that the use of the waters of the State of California are balanced and put to beneficial use. An interested party such as the CSPA need not be a protestant to request the SWRCB to balance all of the beneficial uses of water in Arroyo Conejo, Conejo Creek, Calleguas Creek, and Mugu Lagoon.

We reference National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 189 Cal.Rptr. 346,658 P.2d. 709 cert. denied 464 U.S. 977.

SWRCB Hearing Notice

5. We have reviewed the information and data in the hearing notice for this proceeding.

We reference the SWRCB's hearing notice of April 9, 1996 regarding the above mentioned Water Right Applications; Subject of Hearing at pages 1 and 2; Background at pages 2 to 4; Key Issues at pages 4 to 6; and Policy Statements at page 13; Including all other matters in the public hearing notice.

Key Issue No. 1 - Unappropriated Water

6. The hearing record should determine the quantity of unappropriated water available in the Arroyo Conejo, Conejo Creek and Calleguas Creek watersheds. That hearing record should also include all other diversions in the subject watersheds so that the SWRCB understanding the cumulative on-going diversions and proposed applications.

The hearing record should also include the mandatory daily minimum environmental streamflow requirements below all points of diversions so that the SWRCB understands the daily amount of water being allowed to flow in the watersheds to protect the public trust resources.

The CSPA request the SWRCB to protect the public trust resources from existing and proposed diversions.

Key Issue No. 2 - Application 29408 and WW No. 6

7. The hearing record should determine the specific amount of unappropriated water which may be assigned to Application 29408 and WW No. 6. However, the SWRCB has a public trust duty and responsibility to protect the public trust resources in the watersheds. Consequently, the SWRCB should balance the beneficial use so that there is water for the City's project, as well as water (flows) to protect the public trust resources of the affected watersheds.

The CSPA request the SWRCB to protect the public trust resources in the watersheds which will be affected by the City's Project.

Key Issue No. 3 - Reservation of Water Under Applications 29816, 29819, 29829, 29559, 30037, 30092 and 30194

8. As stated beforehand, the waters of the State of California belong to the people, and the public trust resources of the watersheds belong to the people.

The question is raised by the staff of the SWRCB whether it would be in the public interest to reserve any of the unappropriated water for assignment to Applications 29816, 29819, 29829, 29559, 30037, 30092 and 30194.

CSPA believes that first the SWRCB needs to determine the daily amount of water necessary to protect the public trust resources in the Arroyo Conejo, Conejo Creek and Calleguas Creek watersheds. Once that is determined as a result of the hearing record and/or further hearings, then the SWRCB will understand the amount of unappropriated water available in the subject watersheds during all water year types.

The CSPA need not be a protestant to request the SWRCB to balance the beneficial uses of water in the subject watersheds. We are requesting the SWRCB to balance the beneficial uses so that the public trust resources in the subject watersheds are protected while allowing for the unappropriated water which remains to be appropriated for beneficial uses.

Key Issue No. 4 - Legal Water Users

9. The hearing record should determine whether other legal users of water in the subject watersheds will be injured.

As stated beforehand, the waters of the State of California belong to the people, and the public trust resources of the watersheds belong to the people.

However, in the event the public trust resources of the subject watersheds are not protected by the SWRCB, the owners (people) of the water and public trust resources would be injured.

Key Issue No. 5 - Measuring Devices

10. The question is raised as to the location to measure the flows which the City proposes to divert for purposes of the project.

The SWRCB and its staff commonly require fulltime measuring devices to measure the daily amount of water bypassed to protect instream needs such as public trust resources and other downstream diverters.

The City has requested the SWRCB to dedicate 2.0 cfs of treated wastewater, with an annual limitation of 1,460 afa, to maintain a minimum instreamflow for fish and wildlife maintenance, pursuant to Water Code 1212.

Fish and wildlife resources are public trust resources and assets. Consequently, the flow being recommendated by the City of 2.0 cfs may protect the public trust resources to Mugu Lagoon.

Water Code 1212 requires that the environmental flow of 2.0 cfs cannot be used or claimed by existing water right holders. Consequently, we believe it would be reasonable and in the public interest (people own the water and the people own the public trust resources) to locate one fulltime measuring device below the point of diversion, and one fulltime measuring device near or at Mugu Lagoon.

The CSPA wants to be assured that the 2.0 cfs of water is maintained at all times for the life of the project.

The SWRCB has the authority to order fulltime measuring devices. Fulltime measuring devices cost money. However, the City should understand that installing and maintaining fulltime measuring devices is part of doing business.

Key Issue No. 6 - Impacts On Instream Resources - Flow Control and Monitoring Station

11. The California Department of Fish and Game (hereinafter known as "CDFG") is a state trustee agency and holds in trust the fish and wildlife resources of the State of California for the people of the state. The CDFG has a duty to enforce the Caifornia Fish and Game Codes such as Fish and Game Code 5937.

We do not know whether the 2.0 cfs of flow offered by the City will in fact protect the public trust resources. However, the CDFG should have that information and data, and make their recommendations to the SWRCB in this process.

The CDFG should have the necessary information, data, and evidence in this proceeding to address the potential impacts on instream resources due to the City's proposal to construct the flow control and monitoring station.

The SWRCB when evaluating the evidence on this matter should give the CDFG testimony and evidence significant weight.

Key Issue No. 7 - Public Trust Environmental Flow Requirements

12. The environmental flow requirement whether it is 2.0 cfs or 20 cfs should be included as a term in the permit, and should also be a mandatory condition.

The SWRCB has the authority to require daily mandatory flow requirements in water right permits and licenses.

Key Issue No. 8 - Approval of the City's Application and Petition

13. The City's application and petition should be approved by the SWRCB provided the public trust resources of the subject watersheds are protected during the construction activities and in the long term future.

Key Issue No. 9 - Urban Growth - Future Use of Treated Wastewater

14. The City will have to live with growth inducing impacts and its limited supply of water. However, the streamflow requirement to protect the public trust resources in the subject watersheds to Mugu Lagoon should a condition of any future wastewater use.

Key Issue No. 10 - Instreamflows - Protection of Public Trust Resources of the Arroyo Conejo, Conejo Creek and Calleguas Creek Watersheds

15. The question before the SWRCB is what instreamflows are necessary to protect the public trust resources of the Arroyo Conejo, Conejo Creek and Calleguas Creek Watersheds.

The SWRCB commonly required that instreamflow studies are conducted to determine the daily amounts of water needed to protect public trust resources. The SWRCB also commonly requires applicants to conduct the instreamflow studies. The SWRCB commonly receives testimony and evidence regarding instreamflow recommendations from applicants and the CDFG, and in certain cases, protestants filing protests on environmental grounds. The SWRCB is the judge and jury in making decisions on instreamflow requirements.

Under Section 782; California Code of Regulation; Title 23; and Section 1257.5 of the Water Code, the SWRCB has the authority to order mandatory instreamflow requirements to keep fish (and wildlife) in good condition at all times. Under Section 784; CCR; Title 23; the SWRCB has the authority to prescibing or modify permit terms and conditions to protect public trust uses of the state's water.

According to the public notice of April 9, 1996, policy statements by parties representing members of the public such as the CSPA are restricted from making statements in their policy statement such as presenting evidence of facts, either orally or by written introduction of written exhibits. Consequently, the CSPA is restricted by the Board's rules of procedure from making specific instreamflow recommendations to the SWRCB in this proceeding. However, the SWRCB's rules of procedure cannot prevent the CSPA from filing a subsequent public trust complaint against the City and the other applicants in the event the CSPA submits evidence in the complaint which show that the public trust resources are not being protected by the SWRCB in any water right permit issued by in this proceeding.

Instreamflows are necessary to protect the public trust resources of the Arroyo Conejo, Conejo Creek and Calleguas Creek Watersheds. The CSPA request the SWRCB to require daily instreamflow requirements which protect the public trust resources of the Arroyo Conejo, Conejo Creek and Calleguas Creek Watersheds from the City's application and petition, and also from all other applications before the SWRCB which are part of this proceeding.

Key Issue No. 11 - City's Project - Potential Adverse Impacts on Public Trust Resources

16. The duty and responsiblity to protect public trust resources is that of the SWRCB. The duty and responsiblity of protecting public trust fish and wildlife resources is that of the CDFG. Members of the public in which the CSPA represents rely on the SWRCB and the CDFG to protect public trust resources. For the SWRCB and the CDFG to recommend and order mandatory streamflow requirements the Arroyo Conejo, Conejo Creek and Calleguas Creek Watersheds would be a violation of state law and regulations. The CSPA need not be a protestant to request the SWRCB and the CDFG to enforce the law, and require the applicant(s) to comply with the law.

There should be mandatory daily streamflow requirements to protect public trust resources below all points of diversion in this proceeding from the points of diversion to Mugu Lagoon.

Below all points of diversion in this proceeding there should be fulltime measuring devices to record the daily flows below the diversions to record daily flows which may be required to protect public trust resources.

Key Issue No. 12 - Seawater Intrusion

17. The question before the SWRCB is whether there are porential impacts of the City's project on seawater intrusion in the groundwater basins underlying the PCCWD and the Mugu Forebay. The CSPA is restricted from presenting evidence regarding whether there are potential impacts of the City's project on seawater intrusion in the groundwater basins underlying the PCCWD and the Mugu Forebay.

It appears to the CSPA that streamflows from the watersheds to the Mugu Lagoon may reduce and/or prevent seawater intrusion and may protect groundwater. Consequently it appears to the CSPA that in the event of alleged claims of adverse impacts resulting from seawater intrusion to groundwater from the City's Project, that the affected party(s) should sue the City. However, the most reasonable solution may be for the SWRCB to initiate a surface and groundwater analysis of the subject watersheds which would evaluate and reduce and/or prevent the intrusion of seawater into the groundwater sources underlying the PVCWD and the Mugu Forebay.

Key Issue No. 13 - Freshwater Flow Into Mugu Lagoon

18. The question before the SWRCB is whether freshwater inflow into Mugu Lagoon plays an important role in protecting the State-Endangered Saltmarch Bird's Peak which inhibits Mugu Laggon.

The CSPA is restricted from providing the SWRCB with evidence regarding the environmental questions under Key Issue No. 13. The CSPA simply request the SWRCB that its decision regarding the City's application and petition, and other applications protect freshwater flowing into Mugu Lagoon and also the State-Endangered Saltmarch Bird's Peak which inhibits Mugu Laggon.

Key Issue No. 14 - Reservation of Water for Future Development of a Golf Course - Application 28408 - Existing uses

19. The question before the SWRCB is whether the City should be given authorization to reserve water under any permit which is issued by the SWRCB for Application 28408 for the fi=uture development of a golf course.

The CSPA believes that the City should be required to file a change petition with the SWRCB when it decides to provide water for the proposed future golf course. The public hearing notice provides very little information and data on the proposed future golf course. Secondly, the public notice does not provide sufficient information and data on whether the proposed golf corse water would reduce water available to serve existing beneficial uses.

The City's Application 29408 shows that the City is seeking an application to appropriate 17,380 acre-feet of water or 24.0 cfs. The SWRCB notice does not show the season of diversion. However, it appears the season of use will be from January 1 to December 31 annually. The City may be attempting to acquire a right for 17,380 acre-feet (24 cfs) without putting the water to full beneficial use at this time.

The CSPA believes that should the SWRCB approve Application 29408 that all water not put to beneficial at this time should be released by the City and put to beneficial use for the protection of public trust resources in the subject watersheds below the point of diversion to Mugu Lagoon until the City has put all of the water applied for to full beneficial use subject to the recommended minimum flow requirement of 2.0 cfs. And that the water not put to beneficial use at this time be allowed to flow to Mugu Lagoon (See Water Code Section 1212) for full beneficial uses. In other words, the City has offered 2.0 cfs for environmental protection. Apppication 29408 seek 24.0 cfs of water for diversion by the City. Consequently, in the event the City is diverting and putting to beneficial use 17 cfs, 9 cfs (2.0 cfs plus 7 cfs [24 cfs minus 17 cfs] should be allowed to flow to Mugu Lagoon to protect public trust resources.

Key Issue No. 15 - Places of Use Under the City Application and Petition

20. The question before the SWRCB is whether the City's places of use should be approved. There are many environmental impacts which may not have been disclosed and evaluated in the City's CEQA document concerning the places of use and the beneficial uses of state's water under the City's application and petition. It would be reasonable for the SWRCB and its staff to assure the public that all potential direct, indirect, and cumulative impacts to the environment were evaluated and mitigated by the City's CEQA document so that the issuance of a water right permit and approved of the City's petition by the SWRCB is in compliance with CEQA and its Guidelines, and other applicable law.

The Applications - The Water Seeked for Appropriation and the Water Offered to Protect the Public Trust Resources

21. The hearing notice of April 9, 1996 provides the following information and data:

The specific and total amount of water seeked for appropriation are as follows:

Application 29408 - City of Thousand Oaks - 17,380 AFA

Environmental Flow - 2.0 cfs

Application 29581 - Lamb - 1,790 AFA