Gualala Pub Trust Protest App 29466 Feb 1994

State of California

Before the State Water Resources Control Board

Sea Ranch Water Company, Applicant

Application 29466

South Fork Gualala River Underflow tributary to Gualala River thence Pacific Ocean

Application to Appropriate Water

Public Trust Protest

by California Sportfishing Protection Alliance

We the California Sportfishing Protection Alliance (hereinafter known as "CSPA") of P.O. Box 357, Quincy, CA 95971, c/o Bob Baiocchi, CSPA, have carefully read a copy of, or a notice of January 28, 1994, relative to the above mentioned application to appropriate water by Sea Ranch Water Company.

The Applicant (Sea Ranch Water Company) proposes to divert 225 acre-feet of water pre annum to storage from the South Fork Gualala River underflow and place the water into an offstream reservoir. The maximum rate of diversion to the offstream storage facility will be 2.4 cfs carried in approximately 42,000 feet of 12-inch and 14-inch diameter buried pipe. The proposed pit-type reservoir will be located approximately 5 and 1/2 half miles northwest of the river diversion pumps. The reservoir is planned to have a surface area of 10.4 acres and a maximum depth of 27 feet. The water will be used for municipal needs within the Sea Ranch Water Company's service area. The diversion season will be from January 1 to December 31. The project will be located on Sonoma County.

Sea Ranch Water Company holds Permit 15358 (Application 22377) for year round direct diversion of 1.29 cfs from the underflow of the South Fork Gualala River. Application 29466 is a companion filing to Permit 15358 and will utilize the same diversion facilities. Any permit issued on Application 29466 will include the same fishery bypass requirements as contained in Permit 15358. The combined maximum amount of water to be diverted under Permit 15358 and under Application 29466 shall not exceed 838 acre-feet per annum.

We reference to this protest the Division of Water Rights Notice of Application 29466 to Appropriate Water From the South Fork Gualala River Underflow, dated January 28, 1994. [See Description of Project and Application Information]

" The State Water Resources Control Board, as Lead Agency for the proposed project, pursuant to the California Environmental Quality Act (CEQA) has required the preparation of a Draft Environmental Impact Report. The Draft Environment Impact Report addressed the proposed project as well as twelve other alternatives within the Gualala River system. The Draft Environmental Impact Report was circulated to the State Clearinghouse, responsible agencies, and interested parties. The review period for the Draft Environment Impact Report has ended and the State Water Resources Control Board is in the process of responding to comments and preparing the Final Environmental Impact Report. "

The CSPA desires to protest against the approval of said application because the proposed project has the potential to have significant direct, indirect and cumulative adverse impacts to the public trust steelhead trout and Coho salmon resources of the South Fork Gualala River. Permit 15358 is presently in violation of California Fish and Game Code 5937 and the Public Trust Doctrine because the environmental flow requirements in Term 14 of Permit 15358 (fish bypass flow requirements) have not been ordered in effect by the State Water Board or complied with by the the Sea Ranch Water Company (permittee).

Facts which support the foregoing allegations are as follows:

1. The Sea Ranch Water Company (Company) was issued Permit 15358 in 1967 to divert water from the South Fork Gualala River. In accordance with this permit, Sea Ranch developed two offset wells to divert the underflow of the South Fork Gualala River for municipal use at the Sea Ranch and other portions of Oceanic properties. [See State Water Resources Control Board Meeting; September 20, 1990; Item 16; Proposed Order Amending Permit 15358 (Application 22377) of Sea Ranch Water Company To Set Terms And Conditions For Fishery Protection And Setting A Date Certain For Obtaining An Additional Supply Of Water]

The CSPA believes that all water right permits issued by the State Water Board must contain mandatory daily fish bypass flow requirements which are in effective at all times as required by state law to protect and keep in good condition the public trust fishery resources of the state.

2. Permit 15358 contains a fishery by pass term (Term 14) which the State Water Board determined only in effect once the permittee secured an alternative water supply. Application 29466 is for that alternative water supply.

We believe the State Water Board failed to follow the law and require that mandatory daily fish bypass flow requirements are in effect at all times in Permit 15358 to keep in good condition and protect the public trust steelhead trout and Coho salmon resources in the South Fork Gualala River when Sea Ranch Water Company is diverting water from the river.

3. In 1988, complaints [California Trout, Jerome Lucey and United Anglers of California] were filed against Permit 15358 regarding the lack of active terms and conditions to protect the public trust steelhead trout fishery in the Gualala River, the lack of flow measuring devices required by the permit, and the concern that water appropriated by this permit is used in a wasteful and unreasonable manner.

We believe the complaints were reasonable and in accordance with state law. The complaints attempted to have the State Water Board fulfill its duty to protect the public trust steelhead trout and Coho salmon resources of the Gualala River.

4. A State Water Board hearing was held on January 29, 1990 to considered the complaints and a specific time schedule for securing an additional water supply.

5. Prior to the issuance of Permit 15358 in 1967, the Department of Fish and Game (DFG) filed a protest against the Company's proposed diversion. In its protest, DFG sought to preserve flows necessary to protect fish and wildlife in the South Fork Gualala River. As a result of this protest, a fisheries bypass term was negotiated and ageed upon by the Company and DFG and was included in Permit 15358 (Term 14).

6. In 1977, DFG filed a complaint with the Board alleging that the Company was diverting water in violation of Term 14. The Board held a hearing on this complaint and adopted Order WR 77-12 on October 20, 1977. In Order WR 77-12, the Board found that there was no violation of Term 14. The Board also found the term to be unenforceable as written and modified Term 14 to read:

" 1. For the preservation of fishlife, the permittee shall not divert water at the point of diversion when the flow is equal to or less than the following:

a. 5 cfs from June 1 to November 30,

b. 25 cfs from December 1 to March 31,

c. 10 cfs from April 1 to May 31,

provided this modification shall not become effective until an approved alternative supply is secured by permittee. "

Order WR 77-12 also required the following:

" 2. Permittee shall decide on its preferred alternative source of supply within six months of the date of this order and shall thereafter develop said supply pursuant to a time schedule approved by the Board.

" 3. Permittee shall install device(s), satisfactory to the Board, which are capable of measuring the flows required by the conditions of this permit. "

We believe that Term No. 1 of Board Order WR 77-12 was in violation of state law because the State Water Board deferred enforcing the law and protecting the public trust steelhead trout and Coho salmon.

7. The Company filed Application 26146 in December 1979 to appropriate by direct diversion 2.0 cfs from the Gualala River underflow via offset wells adjacent to the Gualala River estuary. Three protests were filed against this application.

A Draft Environmental Impact Report (DEIR) was issued on this proposed project in February 1987. The DEIR found that the proposed project would cause significant impacts to the fisheries and estuary of the Gualala River which cannot be mitigated.

On November 16, 1987, the Board re-noticed Application 26146 because of the length of time that had elapsed since the application was first noticed. [Title 23, California Code of Regulations Section 684 (b)] Numerous protests were received on the re-notice application and numerous letters of opposition were received during the DEIR review period. The basis of the protests and letters of opposition was that the proposed project would cause significant adverse impacts to the fisheries and estuary of the Gualala River.

On February 19, 1988, the applicant requested an extension of time of one year to revise the DEIR and respond to all protests. On March 11, 1988, the extension of time was granted. As of September 20, 1990 none of the protests has been addressed nor had any additional work been done on the DEIR.

We believe the Sea Ranch Water Company violated Board Order 77-12 for self serving purposes because it knew that continued delays would defer Term 14 from protecting the public trust steelhead trout and Coho salmon resources of the Gualala River.

8. On April 7, 1989, the Company filed Application 29466 to divert up to 300 acre-feet of water per annum (afa) to offstream storage from the South Fork Gualala River. As of September 20, 1990 the application had not been publicly noticed by the Board. The Board has received numerous letters of opposition to the proposed project. The letters alleged that the location of the proposed project could result in the removal of riparian vegetation and have adverse impacts to several sensitive plant species.

9. As a result of the Board hearing of January 29, 1990, the Board issued Order WR 90-15. Board Order WR 90-15 set terms and conditions for fishery protection and set a date certain for obtaining an additional supply of water. [See Order WR 90-15; In the Matter of Permit 15358 (Application 22377); California Trout, Jerome Lucey and United Anglers of California, Complainants; Sea Ranch Water Company, Permittee]

The CSPA was an interested party to WR 90-15. Order WR 90-15 was in violation of state law when the State Water Board failed to fulfill its duty in ordering the Sea Ranch Water Company to comply with mandatory daily fish bypass flow requirements to protect the public trust steelhead trout and Coho salmon resources of the Gualala River.

10. Board Order WR 90-15 set certain terms and conditions. The following are some of the pertinent terms and condition:

" 1. Term 14 shall be modified to read:

For the preservation of fish life, the permittee shall not divert water at the point of diversion when the flow is equal to or less than the following:

a. 5 cfs from June 1 to November 30,

b. 25 cfs from December 1 to March 31.

c. 10 cfs from April 1 to May 31.

This term shall become effective at the time an approved alternative water supply is secured by permittee or on January January 1, 1995, whichever occurs first. "

" 2. Add a condition to read:

The additional water supply required by Order WR 77-12 shall be completed no later than January 1, 1995. "

" 3. Term 5 shall be modified to read:

The water appropriated shall be limited to the quantity which can be used and shall not exceed 1.29 cfs to be diverted from January through December 31 of each year. The maximum amount diverted under this permit shall not exceed 613 acre-feet per calendar year. "

Board Order of WR 90-15 provides a monthly rate of diversion (cfs) for the periods from June 16 to August 15, and August 16 to October 15 for the years 1990 to 1994.

" 5. Add a condition to read:

Permittee shall conduct a fishery study in consultation with the Board to determine whether the permittee's diversion is causing any adverse impacts on the fishery resources of the Gualala River and to determine whether Term 14 is adequate to protect the fishery. If the study shows that Term 14 is inadequate to protect the fishery, the study shall evaluate the flows which would be adequate to protect the fishery. If the study shows that the permittee's diversion of water under this permit causes adverse impacts on the fishery, the study will evaluate the measures which would be necessary to mitigate the impacts. The study shall also evaluate the cumulative effects of the Company's diversion and a summer dam on the South Fork Gualala River in the vicinity of the point of diversion authorized under this permit unless the dam is not constructed or the dam is constructed with appropriate bypass flows. This study shall be completed by October 1, 1993. "

" 6. Add a condition to read:

The Board reserves jurisdiction over this permit to impose conditions to confirm this permit to the recommendations of the fishery study regarding the adequacy of Term 14 and mitigation of adverse impacts. Action by the Board will be taken only after notice to interested parties and opportunity for hearing. "

" 7. Add a condition to read:

No later than two months after the date of this order, permittee shall commence daily flow measurements of the South Fork Gualala River at locations satisfactory to the Board. A minimum of two measurement stations are required: one upstream and one downstream of the point of diversion. Daily flow measurements at these stations shall be made for a two year period for the fishery study or until an alternative monitoring schedule is approved by the Chief of the Division of Water Rights. When sufficient data have been collected for the fishery study, the number of stations and the frequency of measuring flows may be adjusted upon the approval of the Chief of the Division of Water Rights. No later than one month after the date of this order, permittee shall submit a flow measurement program to the Chief of the Division of Water Rights for approval before implementing the program. The program shall specify the locations and methodology for measuring the flows required by this term. "

" 8. Add a condition to read:

Permittee shall submit annual progress reports on the implementation of its water conservation program to the Chief of the Division of Water Rights with its Annual Progress Report of Permittee. "

" 9. Add a condition to read:

Implementation of the measures specified in the water conservation plan shall be completed by January 1, 1992. "

" 10. Add a condition to read:

The Board reserves jurisdiction over this permit to i,pose further conditions regarding the implementation of water conservation measures. Action by the Board will be taken only after notice to interested parties and opportunity for hearing. "

" 11. Add a condition to read:

Prior to implementation of Term 14, permittee shall submit reports of daily meter readings of total water production for each month during the period from June 16 to October 15 of each year within 30 days following each monthly period to the Chief of the Division of Water Rights. For the purpose of this term, a monthly period shall be defined as beginning on the 16th day of the first month and continuing through the 15th day of the following month. "

" 12. Add a condition to read:

The Board reserves jurisdiction over this permit to review and alter, if appropriate, the date certain for implementation of Term 14.

We reference Board Order WR 90-15 to this protest.

11. In January 1990, the Company entered into a contract for the preparation of an EIR to consider the environmental impacts of thirteen (13) alternatives.

According to the Sea Ranch Water Company's proposed schedule for the alternative water supply project (Application 29466), the completion date for the final EIR was January 1992. [Sea Ranch Water Company's Exhibit 3M]

According to the Division of Water Rights Notice of January 28, 1994, " The review period for the Draft Environment Impact Report has ended and the State Water Resources Control Board is in the process of responding to comments and preparing the Final Environmental Impact Report."

The Final EIR was not completed as advocated by the Sea Ranch Water Company. This delay of over two years may again have Term 14 (fish bypass flow requirements) deferred for self serving purposes in violation of environmental laws which protect the public trust fishery assets of the South Fork Gualala River.

12. On January 28, 1994, Application 29466 was publicly noticed by the Board. The Board's notice stated that the final EIR is in the process of being completed.

We find significant problems with the CEQA process for the Draft EIR and the water rights process for Application 29466: Those significant problems are as follows:

a. The staff of the Division of Water Rights should have noticed Application 29466 before the Draft EIR was issued so that protestants had the opportunity to file protests and make allegations concerning the potential direct, indirect, and cumulative impacts to the environment of the South Fork Gualala River from all 13 alternatives and the subject project.

b. The CSPA was an interested parties at the hearing for Board Order WR 90-15. The CSPA did not receive a copy of the Draft EIR from the Sea Ranch Water Company. There may be other parties who propose to file protests on Application 29466 and who also did receive a copy of the Draft EIR. Consequently, Protestants who did not receive copies of said Draft EIR did not have the opportunity to comment on the draft EIR. It appears because of the Draft EIR being completed before Application 29466 was noticed to the public, that would violate certain protestant's due process rights.

c. It is our understanding the staff of the State Water Board (lead agency) is not specifically responding on the comments to the Draft EIR. It is our understanding the comments to the Draft EIR are being responded by agents for the Sea Ranch Water Company. Because the State Water Board is the lead agency, it is the legal duty of the State Water Board to respond to comments to the Draft EIR.

d. Protestants and the Board's staff may find the Final EIR in violation of CEQA and its guidelines. Consequently the State Water Board may have to require the preparation of a Supplemental EIR for Application 29466.

13. At the Sea Ranch Water Company's point of diversion, the South Fork Gualala River drainage encompasses approximately 161 square miles of mountainous coastal terrain in northern Sonoma County. The mean annual runoff is approximately 312,000 acre-feet per year with a recorded maximum discharge of 55,000 cfs and a minimum discharge of 0.4 cfs. Typically, the river is characterized by high runoff during the winter and spring and low surface flows during the summer and fall.

The South Fork Gualala River flows northwest along a rift valley formed by the San Andreas fault which parallels the coast for about 25 miles. Approximately 6 1/2 miles downstream from Sea Ranch Water Company's diversion, the river joins the North Fork Gualala River and turns southwest for approximately 5 miles to the Pacific Ocean.

[See Staff Analysis of Record; Permit 15358 (Application 22377) of Sea Ranch Water Company For Appropriation of Water From South Fork Gualala River Underflow; Division of Water Rights; State Water Resources Control Board; July 1990; under Part 5.1, Watershed Description, page 5]

14. The South Fork Gualala River supports a substantial run of steelhead trout and their habitat. The river also supports a run of Coho salmon and their habitat. During the months of April and May, young fish emerge from the gravel and young of the year fish migrate from the tributary sections. From May to October, the river is utilized as summer nursery habitat when young fish rear in the stream and reside in the pools and riffles.

The most critical time in the steelhead and salmon life cycle is the later summer and fall when flows and water temperatures are near critical levels for survival of juvenile fish. Flows at this time are at their lowest and diversion of any water is very critical to the fishery.

Populations of Coho salmon have been reduced significantly along the West Coast. Coho salmon in the Gualala River are at a high risk of extinction. [See California's Rivers; A Public Trust Report; Prepared for the State Lands Commission; 1993; Anadromous Salmonid Stocks at Risk in Northern California; Figure 49, page 123]

The river also supports other fish species and their habitat, aquatic species and their habitat, riparian habitat, and other beneficial instream values such as wildlife species and habitat, sensitive plants, and public recreation.

15. The Sea Ranch Water Company delivers water for municipal use to the 5,300 acre Sea Ranch development of coastal lands adjacent to Highway 1. It currently (1990) services 1,024 accounts along 44 miles of delivery pipe consisting of a majority of residential connections, a limited number of commercial and public connections and the Sea Ranch Golf Links. Full build out can be estimated at less than 2500 connections because of the building limitations placed on the Sea Ranch by the California Coastal Commission.

In the last six years (ending 1990), the Sea Ranch Water Company diverted between 84 to 94 MG (257 to 288 af) of water per year with average water use per residential and commercial account estimated at 130 to 140 gpm. The golf course currently (1990) irrigates 50 acres of playing area with an average annual water use of 21 MG (64 af). A majority of this water is used during the months of June through October.

16. The Board's staff believes Permit 15358 should be modified to make the fishery bypass requirements of Term 14 effective on January 1, 1995, regardless of whether the alternative water supply has been developed.

The CSPA agrees with the Board staff that the fish bypass flow requirements must be effective on January 1, 1995 because for the Board to continue to defer the protection measures for the public trust steelhead trout and Coho salmon violates state law and places the Coho salmon and steelhead trout in jeopardy of being extinguished.

17. Since the late 1960's, the Sea Ranch Association (SRA) has constructed an instream dam immediately downstream from the Sea Ranch Water Company's point of diversion during the summer months of the year. This dam has been constructed for recreational purposes, and in 1990 the SRA proposed to continue this practice.

In 1990, the Board's staff could not find a basis of water right for the SRA's construction of the summer dam. In 1990 the Board's staff recommended that if construction of the dam is initiated or if the dam is already in place, this matter should be investigated.

Based upon the testimony of the Department of Fish and Game at the hearing in 1990 [T,116:21-117:12], the Board's staff concluded that it believed that it is likely that the presence of the summer dam in the South Fork Gualala River creates a negative impact to the fishery.

Under the provisions of the California Water Code the construction of Sea Ranch Association's summer dam is the unauthorized use of the state's water. The State Water Board has a duty to enforce the California Water Code and prevent the unauthorized use of the state's water by Sea Ranch Association's summer dam.

18. Part 7.0 of Order WR 90-15 states in pertinent part:

" The study [fishery] should also evaluate the cumulative effects of the Company's diversion and the summer dam on the fishery unless the dam is not constructed with appropriate bypass flows. "

As stated before, the CSPA has not reviewed the Draft EIR for Application 29466. Regardless of that, the State Water Board directed the Sea Ranch Water Company to prepare a fishery study which also evaluates " cumulative" effects caused by Sea Ranch Water Company's diversion and SRA's summer dam.

The California Environmental Quality Act and its guidelines requires that all cumulative effects from existing, proposed and future projects are evaluated in EIR's. The State Water Board limited the evaluation of cumulative effects to the Company's diversion (and storage facility) and SRA's summer dam on the fishery.

The anadromous fisheries (steelhead and Coho salmon) are the most important species to be affected cumulatively by the Company's diversion and the summer dam. However there may other important fishery habitat, and fish, wildlife and plant species that may be cumulatively affected by the Company's diversion and the summer dam.

We have no information and data on diversions on the South Fork Gualala River, excluding the Company's present and proposed diversions and the summer dam. There may be upstream and/or downstream pre-1914, riparian or permitted diversions. We do know that the North Gualala Water Company diverts water from the North Fork Gualala River. We are concerned about cumulative impacts to fishery resources and habitat in the main stem Gualala River to and including the lagoon, from the Company's diversion from the period from June 1 to November 30 of each year.

The State Water Board to date has not adopted procedures for implementing the California Environmental Quality Act. The CSPA has advised the Board of this fact at numerous board hearings and meetings.

The California Supreme Court interpreted CEQA for the first time in 1972, in the landmark case Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247 [104 Cal.Rptr. 761]. That decision announced that CEQA must be interpreted so "as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language" and that environmental analysis is required not for "projects" initiated by government, but also for agency actions, such as the approval or issuance of permits, leases, and other entitlements, taken in response to private initiatives. (8 Cal.3d at 259, 262 [104 Cal.Rptr. 761, 768, 771] (Emphasis Added)

In 1973, pursuant to authority granted in Public Resources Code section 21083, the California Resources Agency issued the first set of "CEQA Guidelines". They embody both the specific statutory mandates of CEQA and the nuances added thereto by the scores of judicial decisions interpreting the statute. The procedure that public agencies adopt to implement CEQA must be consistent with the Guidelines. (Section 21082)

Consequently, CEQA and its Guidelines, as written, must be enforced by the Board in any decision it makes before it approves Application 29466.

A draft EIR must discuss "cumulative impacts" when they are significant. (CEQA Guidelines, section 15130, subd. (a).) These are defined as "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts." (CEQA Guidelines, section 15355; see also section 21083, subd. (b).) "Individual effects may be changes resulting from a single project or a number of separate projects." (CEQA Guidelines, section 15355, subd. (a).) "The cumulative impacts from several projects is the change in the environment which results from the incremental impact of the project when added to the closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (CEQA Guidelines, section 153, subd. (b).)

A legally adequate "cumulative impacts analysis" thus is an analysis of a particular project viewed over time and in conjunction with other related past, present, and reasonably foreseeable probable projects whose impacts might compound or interrelate with those of the project at hand. Such an analysis is necessary because the full environmental impact of a proposed action cannot be gauged in a vacuum. (Emphasis Added)

The State Water Board has put itself into a position of violating state law and having the public trust protection measures (Term 14) deferred again.

The Sea Ranch Water Company has continued to delay implementing a water supply alternative at the expense of the public trust steelhead trout and Coho salmon resources of the South Fork Gualala River, and it appears the proposed reservoir will not be operational by January 1, 1995.

The State Water Board has deferred enforcing the law and Term 14 of Permit 15358 to protect and keep in good condition the public trust steelhead trout and Coho salmon resources of the South Fork Feather River

If the tardy draft and/or final EIR are deficient and not in compliance with CEQA and its guidelines, a supplemental EIR would have to be prepared. Preparation of a supplemental EIR would delay the construction of the proposed reservoir. Consequently, the State Water Board may again violate the law and defer Term 14, allowing the Sea Ranch Water Company to continue to divert water during critical low flow periods with adverse impacts to the public trust fishery resources.

The State Water Board and or its staff have allowed the Sea Ranch Water Compaby to respond to comments to the Draft EIR.

According to the Division of Water Rights' Notice for Application 29466, the review period for the Draft Environment Impact Report has ended and the State Water Resources Control Board is in the process of responding to comments and preparing the Final Environmental Impact Report.

This statement by the Division of Water Rights is simply not true. The applicant is responding to the comments to the Draft EIR and not the staff of the State Water Board as required by CEQA and its guidelines.

In any event, the State Water Board must order the environmental flows in Term 14 on January 1, 1995 regardless of the self serving delays by the Sea Ranch Water Company.

The CSPA Public Trust Protest is Based on the Following:

The Authority and Duty to Act and Legal Obligations of the State Water Board

The Public Trust

The State Water Board has a duty to protect public trust resources when administrating water rights, and, in situations where damage has already been done by water users, to reallocate water to preserve the trust. It is the latter duty which the Board must perform on the South Fork Gualala 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 as trustees.

The California Supreme Court in its Mono Lake Decision [National Audubon Society v. Department of Water and Power, City of Los Angeles (33 Cal.3d 419,658 P.2d 709-1983) reiterated and clarified some of its past rulings regarding public trust properties, uses and values. The Court further emphasized the State's overall duties and responsibilities to protect the people's common heritage of streams, lakes, marshlands and tidelands for the many uses covered by the public trust.

In this 1983 ruling, the California Supreme Court also stated:

o Parties acquiring rights in trust property (in this case water), hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.

o The public trust is more than an affirmation of the State power to use public property for public purposes, it is the duty to take public trust properties (fish, wildlife and water quality) into account in the planning and allocation of water and to avoid or minimize any harm to these properties, interests or associated uses whenever feasible.

o The State, under its public trust responsibilities, has the affirmation of the duty and continuing authority to vigorously protect the public trust uses and to avoid or minimize harmful impacts to such uses.

o The public trust is more than an affirmation of the state's power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.

o The Public Trust doctrine protects navigable waters from harm caused by diversion of non-navigable tributaries.

o The State can reconsider previous water allocations at any time under its continuous authority.

o The public trust includes the protection of ecological and biological values of water and waterways.

o Any member of the general public has standing to raise a claim of harm to the public trust. (Emphasis Added) This CSPA public trust complaint is in accordance with that court ruling.

The CSPA public trust protest is based on the Public Trust Doctrine.

California Fish and Game Code 5937 - Water for Fish

There has been a long history of concern for California's fishery resources. The California Legislature in 1852 enacted a statute designed to protect migrating steelhead trout and salmon on their spawning runs by outlawing obstructions in any river or stream as a public nuisance. The law is that "the running water of the State of California are public property. One who obstructs them obstructs them under license or permission from the state, but only upon such conditions as to their use as the state may impose" [See Schaezlien v. Cabaniss (135 Cal 466, 470, 67 Pac Rpt. 755, 757-1902)] The State can impose conditions upon owners of a dam or other structure as it sees fit to permit the free running of water or migration of fish up or down a stream.

In 1870 the California Legislature enacted Penal Code 637 which required " as far as practicable" fishways over obstructions in the State's rivers and streams. The court ruled that Taylor's dam on Papermill Creek violated Penal Code 637 by failing to keep the fishway in repair to allow fish to move upstream [See Taylor v. Hughes (62 Cal 32 1882)]

In 1915 another statute was enacted requiring continuous water release from dams through fishways for the purpose of keeping fish below such dams in "good condition". In 1937, what is now California Fish and Game Code 5937 was enacted by the California Legislature. Fish and Game Code 5937 states that the owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. [See Use it or Lose It - Fish and Game Code 5937; Law Review Article; Joel Baiocchi; U.C. Davis, 1980]

The State Water Board was challenged in the courts over not enforcing Fish and Game Code 5937 involving the construction of four (4) dams on tributaries to Mono Lake and the diversion of their entire flow by the Los Angeles Department of Water and Power for municipal and industrial water supply and hydropower uses. There were no instream flow provisions incorporated into water right permits issued by the State Water Board to keep trout alive and in "good condition" in streams below the dams. [See California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]

The Appellate Court's findings in California Trout v. State Water Resources Control Board supported the concept that trust properties, such as fish, have a unique status. The title to the fish property in State waters is vested in the State and held in trust for the people.

Other important points of the decision include:

o Fish and Game Section 5937 mandates that the owner of any dam shall allow sufficient water at all times to pass through a fishway or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. (Emphasis Added)

o Limits the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure the continued existence in good condition of fish life below the dam. (Emphasis Added)

o Compliance with Fish and Game Code 5937 was not negated by the agreement to build a trout hatchery.

o The public trust interest as to a fishery in a non-navigable stream is in the nature of a state property interest

o There are a variety of public trust interests in addition to fish and the fishery that pertain to non-navigable streams.

o Water right permit actions or the failure to take action is not time barred. The nature of the State's property interest in both fish and water is such that one may not oust the State's property or trusts interests by a statute of limitation. " The public is not to lose its rights through the negligence of its agents, nor because it has not chosen to resist an encroachment by one of its own number, whose duty it was, as much as that of every other citizen, to protect the state in its rights." [See People v. Kerber (1908) (152 Cal. 731, 732, 736, 93 P. 878) in California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]

o If a nuisance is an ongoing conduct that can be discontinued by an order to stop such acts, the nuisance is viewed as continuing and hence abatable. There are no statute of limitations that permit such acts to continue.

o The licenses to appropriate water must be conditioned by the State Water Board mandating that the dam owner allow sufficient flow of water to pass downstream of the dam to keep the fish alive and in good condition.

The Appellate Court also found that Fish and Game Code 5937 are expressions of both the California Constitution and the California Legislature for protecting the value of the State's instream waters as an ecosystem and the fishery resources that utilize that ecosystem. The effect of that provision is to limit the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure that fishlife below the dam are maintained in "good condition". (Emphasis Added)

The criteria "in good condition" is not defined in Fish and Game Section 5937. However, "in good condition" must include the conservation and protection of the biological, physical, and chemical aspects of the aquatic environment that are necessary to support self-maintaining or renewable fish populations, associated ecological values and other beneficial and public trust uses of the South Fork Gualala 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 resources of the South Fork Gualala River.

The Right To Fish - Abundance of Public Trust Resources

The State Water Board when issuing water right permits to use the waters of the state has responsibilities for preserving and protecting the public trust resources and public interest by incorporating mandatory protection requirements into water right permits. In this situation fish resources, water quality, riparian habitat, and other public trust resources of the South Fork Gualala River must be protected by the State Water Board against harm or degradation by the Sea Ranch Water Company.

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 South Fork Gualala River can not be enjoyed by the people unless steelhead trout and salmon are in sufficient abundance to be harvested and enjoyed.

The continued existence, renewability and abundance of such resources in their broadest context, the integrity of water as an aquatic environment upon which such resources depend, rests upon the State Water Board.

Water Rights - State Water Board - Authority to Act

The State Water Board has several sources of authority to modify water right permits and to require water in the South Fork Gualala River watershed to protect public trust resources.

o Water Code Section 1394 authorizes the State Water Board to include a specific reservation of jurisdiction in a permit.

o Pursuant to Water Code 1258, the State Water Board may subject appropriations to such terms and conditions as it finds necessary to enforce water quality control plans.

o The State Water Board has continuing authority under Water Code Sections 100 and 275 to enforce the requirements of California Constitution Article X, Section 2 with respect to all water right holders.

o The State Water Board's regulations at 23 Cal. Code Regs. Section 784 describes the State Water Board's authority to require release of of stored water.

o Section 780 (a) sets forth the State Water Board's standard permit term reserving continuing authority. This term describes how the State Water Board might exercise its continuing authority under Water Code Sections 100 and 275, under Cal. Const. Art. X, Section 2, and under the common law public trust doctrine.

o The State Water Board has continuing authority over all water rights under the common law public trust doctrine to protect public trust uses.

o The standard permit term for continuing authority at Section 780(a) of Cal. Code Regs., Title 23, is based in part on the public trust doctrine.

Under what conditions may this protest be disregarded and dismissed?

1. That the Sea Ranch Water Company agree and that the State Water Board order Term 14 in effective on January 1, 1995 regardless whether the Sea Ranch Water Company has completed its water supply reservoir.

2. That the State Water Board require the Sea Ranch Association to cease damming the waters of the South Fork Gualala River until the Sea Ranch Association has obtained a water right permit from the State Water Board.

3. That the Sea Ranch Water Company provide the CSPA with a copy of the Draft EIR for Application 29466.

4. That the Sea Ranch Water Company and/or the State Water Board provide the CSPA with a copy of the Final EIR for Application 29466.

5. That the State Water Board as the lead agency intervene and submit its own responses to comments from interested parties to the Draft EIR as required by state law.

6. That the Sea Ranch Water Company and the State Water Board, as the lead agency, comply fully with the California Environmental Quality Act and its guidelines for said Draft and Final EIR for said application.

7. That the Sea Ranch Water Company provide the CSPA with a copy of its fishery study and cumulative impact evaluation.

8. That the Sea Ranch Water Company provide evidence to the State Water Board, CSPA, and other protestants and interested parties that the Sea Ranch Water Company complied fully with all of the provisions of Order WR 90-15. Specifically:

a. Did the Sea Ranch Water Company comply fully with Term No. 2 of Board Order WR 90-15 and will the Company complete the additional water supply by January 1, 1995?

b. Did the Sea Ranch Water Company comply fully with Term No. 3 of Board Order WR 90-15 and limit its diversion to 1.29 cfs from January 1 through December 31 of each year with a maximum diversion not to exceed 613 acre-feet?

c. Did the Sea Ranch Water Company comply fully with Term No. 4 of Board Order WR 90-15 and not exceed the amounts required in Term No. 4 during the periods from June 16 to August 15 and from August 16 to October 15 for the years 1990 to 1994?

d. Did the Sea Ranch Water Company comply fully with Term No. 5 of Board Order WR 90-15 and prepare and complete a fishery study and a cumulative impact evaluation?

e. Did the Sea Ranch Water Company comply fully with Term No. 7 of Board Order WR 90-15 and submit to the Chief of the Division of Water Rights a flow measurement program?

f. Did the Sea Ranch Water Company comply fully with Term No. 8 of Board Order WR 90-15 and submit to the Chief of the Division of Water Rights annual progress reports on the implementation of its water conservation program?

g. Did the Sea Ranch Water Company comply fully with Term No. 9 of Board Order WR 90-15 and implement the measures specified in the water conservation plan by January 1, 1992?

h. Did the Sea Ranch Water Company comply fully with Term No. 11 and submit to the Chief of the Division of Water Rights reports of daily meter readings of total water production for each month during the period from June 16 to October 15 of each year?

9. That the Sea Ranch Water Company be required by the State Water Board to implement at all times conservation measures which will reduce diversion from the South Fork Gualala River from June 1 to November 30 of each year to protect the public trust steelhead trout and Coho salmon resources.

10. That the State Water Board make a finding that the waters of the South Fork Gualala River are fully appropriated from the period June 1 to November 30 to protect the public trust steelhead trout and Coho salmon resources.

11. Without any further delays, we are requesting the Sea Ranch Water Company to answer this public trust protest. Should the Sea Ranch Water Company disagree with the conclusions in this protest, we are requesting they cite the points and authority of law.

A true copy of this protest has been served upon the applicant and other interested parties by first class mail.

___________________________________________

Robert J. Baiocchi

For: California Sportfishing Protection Alliance

P.O. Box 357

Quincy, CA 95971

Office Tel: 916-283-3767

Fax: 916-283-5017

Date: February 15, 1994

Certificate of Service

Jim Kassel, Engineer

Division of Water Rights

State Water Resources Control Board

(Original)

Bruce Fodge, Environmental Unit

Division of Water Rights

State Water Resources Control Board

John Turner, Chief, Environmental Services

Department of Fish and Game

Jim Crenshaw, President

California Sportfishing Protection Alliance

Michael Jackson, Counsel

California Sportfishing Protection Alliance

Bill Jennings

California Sportfishing Protection Alliance

Tom Gregory

California Sportfishing Protection Alliance

Sea Ranch Water Company

c/o James V. Daugherty

Brelje & Race Consulting Engineers

P.O. Box 1895

Santa Rosa, CA 95402

Interested Parties