State of California
Before the State Water Resources Control Board
Michael and Grace Jacobs Family Trust, Applicant
Change Petition for Application No. 28220
Shaw Gulch Tributary to Bradley Creek, Tributary
to Pescadero Creek thence Pacific Ocean
County of San Mateo
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, Executive Director, CSPA, have carefully read a copy of, or a notice relative to the above mentioned water right application of Michael and Grace Jacobs Family Trust (Applicant).
Background and Description of Proposed Project
Original Application - The applicant proposes to construct a 49 acre-foot capacity offstream reservoir. Water will be diverted to the reservoir by gravity from Shaw Gulch via a 4-inch buried pipeline and is to be used for irrigation, fire protection and recreational purposes, including the irrigation of market vegetables, herbs, and flowers.
Change Petition - The project has been revised from an offstream reservoir facility to an onstream reservoir with a proposed capacity of appropriately 26 acre-feet. Application 28220 now seeks a right to store 26 acre-feet of water per year and use 49 acre-feet of water annually. The amount of water applied for is 49 acre-feet per annum by storage from December 1 to April 30.
We desire to protest against the approval of said application and petition because to the best of our knowledge and belief the applicant's water rights application has the potential to have significant direct, indirect and cumulative impacts to the public trust fish and wildlife assets of the Pescadero Creek watershed.
Facts which support the foregoing allegations are as follows:
The Pescadero Creek watershed sustain steelhead trout populations and habitat, and other public trust fish, wildlife and aquatic resources. The fishery resources of the State of California are public trust assets. Fish are the property of the people of the state. The State Water Board has the responsibility to protect the public trust fishery assets when making decisions which affect the assets. Fishery resources need adequate flows and timing of flows to keep fish in good condition. The fish need adequate cold water and water quality to survive. Aquatic resources provides a food supply to keep fish in good condition. Riparian habitat provides cover and conditions to keep fish in good condition as well as providing habitat for wildlife species. Water projects have adversely impacted fishery resources throughout the State of California. This project has the potential to adversely impact the public trust steelhead trout fishery resources of the Pescadero Creek watershed. State law requires fish to be keep in good condition at times.
Shaw Gulch provide an incremential discharge into Pescadero Creek. Flows during the December 1 to April 30 period may provide migration flows for adult steelhead to migrate into Pescadero Creek, and also flows to assist juvenile fish to migrate to the Pacific Ocean. During low water and drought conditions, water from Shaw Gulch may assist in the survival of steelhead (all life stages) in Pescadero Creek. An analysis must be prepared to determine the potential direct and cumulative impacts to steelhead (all lifes) from said petition during low water and drought conditions. When there is water in Shaw Gulch, the Applicant should be required by the Board to bypass water to sustain steelhead and other fish and aquatic species in Pescadero Creek.
The Pescadero Creek watershed sustains habitat for the endangered San Francisco Garter Snake. The diversion and use of water and the associated project has the potential to jeopardize San Francisco Garter Snake populations and habitat in the Pescadero Creek watershed.
Any draft EIR being prepared for this water right application and the subject project must evaluate the potential direct, indirect and cumulative impacts to the San Francisco Garter Snake population and habitat. Said draft EIR must also include Biological Opinions from the responsible federal and state agencies.
We reference to this protest the five year status report for the San Francisco Garter Snake prepared by John Brode, Endangered Species Project, Department of Fish and Game, dated July 1, 1990.
There are existing permitted water right diversions approved by the Board in the Pescadero Creek Watershed. There is at least one pending water right application before the Board to divert water from the watershed (Peter Mazzanti). There may be more pending water right applications before the Board. There may be a number of riparian diverters diverting water from the watershed. Collectively all diversions have the potential to cause adverse cumulative impacts to fish and wildlife resources, including the San Francisco Garter Snake habitat of the Pescadero Creek watershed.
This protest is based on the following:
The Public Trust
The State Water Board has a duty to protect public trust resources when administrating water rights, and, in situations where damage has already been done by water users, to reallocate water to preserve the trust. It is the latter duty which the Board must perform for the Pescadero Creek watershed.
The State Water Board has the continuing authority over all water rights under the common law public trust doctrine to protect public trust resources. [See National Audubon Society v. Superior Court of Alpine County (1983) 33 Cal.3d. 419, 189 Cal. Rptr. 346.]
The public ownership of the State's waters and water courses has its roots in Roman Law of the 6th Century A.D. The public ownership of fish and wildlife also has its roots in ancient Roman Law from the 6th Century A,D. [See Althaus 1987] This fish and wildlife (includes shellfish, birds, mammals, and other classes of wild animals) in their natural state can be regarded as property belonging to the people, with governmental agencies such as the State Water Board and the Department of Fish and Game as trustees.
The California Supreme Court in its Mono Lake Decision [National Audubon Society v. Department of Water and Power, City of Los Angeles (33 Cal.3d 419,658 P.2d 709-1983) reiterated and clarified some of its past rulings regarding public trust properties, uses and values. The Court further emphasized the State's overall duties and responsibilities to protect the people's common heritage of streams, lakes, marshlands and tidelands for the many uses covered by the public trust.
In this 1983 ruling, the California Supreme Court also stated:
o Parties acquiring rights in trust property (in this case water), hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.
o The public trust is more than an affirmation of the State power to use public property for public purposes, it is the duty to take public trust properties (fish, wildlife and water quality) into account in the planning and allocation of water and to avoid or minimize any harm to these properties, interests or associated uses whenever feasible.
o The State, under its public trust responsibilities, has the affirmation of the duty and continuing authority to vigorously protect the public trust uses and to avoid or minimize harmful impacts to such uses.
o The public trust is more than an affirmation of the state's power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.
o The Public Trust doctrine protects navigable waters from harm caused by diversion of non-navigable tributaries.
o The State can reconsider previous water allocations at any time under its continuous authority.
o The public trust includes the protection of ecological and biological values of water and waterways.
o Any member of the general public has standing to raise a claim of harm to the public trust. (Emphasis Added) The CSPA public trust protest with the State Water Resources Control Board is in accordance with that court ruling.
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 waters 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 Pescadero Creek watershed.
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 carry out its duty and not neglect its duty to protect the public trust fishery resources of the Pescadero Creek watershed.
We believe the State Water Board and the Applicant share CEQA duties and responsibilities for this project. We are requesting the State Water Board to prepare and/or have prepared a "cumulative impact analysis" of the Pescadero Creek watershed to determine the cumulative impacts to public trust resources of the Pescardero Creek watershed resulting from this project, Application 30205 (Mazzanti) and other projects approved by the State Water Board, including riparian diversions.
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)
Under what conditions may this protest be disregarded and dismissed?
None at this time. Upon completion of a final EIR which includes a cumulative impact analysis and the Biological Opinions for the San Francisco Garter Snake, the CSPA will submit dismissal terms or request a hearing before the State Water Board.
A true copy of this protest has been served upon the applicant and other interested parties by first class mail.
________________________________________
Robert J. Baiocchi, Executive Director, CSPA
P.O. Box 357
Quincy, CA 95971
Office Tel: 916-283-3767
Date: October 22 , 1993
Certificate of Service
Kathy Mrowka
Application Unit
Division of Water Rights
Mike Falkenstein
Environmental Unit
Division of Water Rights
Michael and Grace Jacobs Family Trust, Applicant
c/o Stanley S. Skeehan, Agent
210 16th Avenue
Santa Cruz, CA 95062
Janice Jagelski, Planner
Planning Division
County of San Mateo
Mail Drop 55RC1-00
590 Hamilton Street
Redwood City, CA 94063
John Sullivan, Deputy Director
Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
Gail Kobetich
Sacramento Endangered Species Office
U.S. Fish and Wildlife Service
2800 Cottage Way
Sacramento, CA 95825
The Committee for Green Foothills
Peninsula Conservation Center
2448 Watson Court
Palo Alto, CA 94303
Mike Jackson, Counsel, CSPA
Jim Crenshaw, President, CSPA
Interested Parties