State of California
Before the State Water Resources Control Board
Peter F. Mazzanti, Applicant
Application No. 30205
Unnamed Tributary (aka Week's 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 Peter F. Mazzanti.
Background and Description of Proposed Project
The Applicant seeks a right to collect water to storage behind an existing 10-foot-high dam forming a 9 acre-foot capacity onstream reservoir with a surface area of 2 acres. The reservoir is currently located on an unnamed stream (Week's Creek), however, because the Department of Fish and Game is concerned that warm water fish could be introduced downstream into the Pescadero Creek stream system, the applicant proposes to relocate the unnamed stream around the reservoir. In such case, water would be diverted from the unnamed stream to the reservoir by pumping from a sump in the stream through approximately 600 feet of 1 1/2-inch diameter pvc pipe at a maximum rate of 1/4 cfs. The Applicant also extracts ground water from a spring and two wells into the reservoir. Water from the reservoir is used for irrigation of 15 acres of flowers.
The water to be appropriated is from an unnamed stream (aka Week's Creek) tributary to Pescadero Creek. The amount applied for is 9 acre-feet annually, the diversion season is from December 1 to April 30
We desire to protest against the approval of said application because to the best of our knowledge and belief the applicant's water rights application has the potential to have significant direct, and cumulative impacts to the public trust assets of the Pescadero Creek watershed. In fact the existing unauthorized diversion has had adverse impacts to the public trust resources of Week's Creek.
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.
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.
The CSPA scoping comments are based on the Public Trust Doctrine. The statement of facts clearly shows that the public trust resources of the Pescadero Creek watershed has been neglected and damaged by existing practices by the Applicant.
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.
Statement of Facts and Reasons
1. The applicant has been diverting the water applied for without an authorized water permit from the State Water Board. This illegal water diversion is a trespass. We are requesting the State Water Board to have the applicant cease diverting the water of Week's Creek immediately until the applicant has obtain a water right permit from the State Water Board.
2. We believe the willful and knowingly unauthorized diversion of the state's water to benefit the applicant's self serving interest at the expense of the public trust resources of the Pescadero Creek watershed constitutes "unjust enrichment" (taking of the water) and a trespass (taking of public trust resources). We reference Santa Clarita Water Co. v. Lyons (161 Cal.App.3d 450; 207 Cal.Rptr. 698; Oct. 1984).
3. The applicant has conducted extensive removal of riparian vegetation in conjunction with the unauthorized diversion.
4. The applicant has relocated a section of the stream without approval of the State Water Board.
5. Herbicides and Bluestone, a potential carcinogenic poison, have been used by the applicant immediately adjacent to the stream and ponds. Also, underground tanks leaking gas and diesel occur in the project area. The State Water Board should advise the Regional Water Quality Control Board to require the applicant to obtain a waste discharge permit. The approval of said water right application should not be approved until the applicant has obtained a waste discharge permit.
6. Non-endemic fish species were planted in the ponds by the applicant without adequate screening devise to prevent the introduction of these fish species into the Pescadero Creek watershed. The planting of non-endemic fish species was not authorized by the Department of Fish and Game.
7. There are other diversions authorized by the State Water Board on Pescadero Creek watershed. The proposed appropriation of water in conjunction with other diversions have the potential to have potential significant adverse cumulative impacts to fishery and aquatic resources of the Pescadero Creek watershed.
8. The applicant's project has the potential to adversely impact the public trust resources of county and state parks located in the watershed.
9. The Pescadero Creek watershed is stressed. Substantial county, state and federal funding as well as private funds and thousands of hours of volunteer hours have been expended to restore the public trust resources of the watershed.
10. According to the State Water Board's notice, San Mateo County Planning Division is the lead agency and will be responsible for preparation of appropriate environmental documents and for determining whether or not the project will cause a significant effect on the environment.
We believe the State Water Board shares CEQA duties and responsibilities for this project. We are requesting the State Water Board to prepare and/or have the San Mateo County Planning Division prepare a "cumulative impact analysis" of the Pescadero Creek watershed to determine the cumulative impacts to public trust resources resulting from this project and other projects approved by the State Water Board.
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)
11. The applicant must be required by the State Water Board to fully restore the damages caused by the applicant to the Week's Creek ecosystem.
12. It is clear an EIR must be prepared for this project before the State Water Board approves the water right permit. This project does not confirm with the San Mateo County General Plan. The San Mateo County General Plan is inadequate as it relates to this project. San Mateo County has lost its authority to approve this project.
Under what conditions may this protest be disregarded and dismissed?
None at this time. Upon completion of an EIR, 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: September 24 , 1993
Certificate of Service
Yoko Mooring
Application Unit
Division of Water Rights
Mike Falkenstein
Steve Herrera
Environmental Unit
Division of Water Rights
Christine Gouig, Planning Director
San Mateo County Planning Division
Mail Drop 5500
590 Hamilton Street
Redwood City, CA 94063
Peter F. Mazzanti, Applicant
c/o Stanley S. Skeehan, Agent
210 16th Avenue
Santa Cruz, CA 95062
Mike Jackson, Counsel, CSPA
Dave Heaslett, Counsel, CSPA
Jim Crenshaw, President, CSPA
Interested Parties