CSPA
Russian River
Nelson and Sons, Inc., Applicant and Petitioner WR Application Nos. 29763, 29764, and 29765
Subject: Rusian River Again - The Big Bad One
Date: Thu, 09 Apr 1998 22:51:39 +0000
From: BOB BAIOCCHI <cspa@psln.com>
Organization: CSPA
To: CSPA Board of Directors via Email
State of California
Before the State Water Resources Control Board
Nelson and Sons, Inc., Applicant and Petitioner
WR Application Nos. 29763, 29764, and 29765
WR Petitions for Change - WR Permit No. 17331 (Application No. 24140),
License No. 12648 (Application No. 17624), and License No. 12649
(Application 24139)
Combined Applications to Appropriate Water and also Petitions for Change
WR Applications - Two Unnamed Tributaries to McNab Creek, and Russian
River thence Pacific Ocean (Application No. 29763); Unnamed Tributary to
McNab Creek thence Russian River thence Pacific Ocean (Application
29764); and Unnamed Tributary to McNab Creek (Application No. 29765)
thence Russian River thence Pacific Ocean
WR Petitions for Change - Russian River thence Pacific Ocean (License
No. 12648); McNab Creek thence Russian River thence Pacific Ocean
(License No. 12649); and Russian River thence Pacific Ocean (Permit No.
17331)
Russian River Watershed thence Pacific Ocean
Public Trust Protest
by the California Sportfishing Protection Alliance
We have reviewed the Division of Water Right's public notice of April
3, 1998 regarding the above shown water right applications, and also the
above shown petitions for change. We reference the public notice of
April 3, 1998.
DESCRIPTION OF PROJECT
We have reviewed the description of the existing and proposed project
in the Division's notice of April 3, 1998.
(a) Nelson and Sons (Applicant and Petitioner) have filed three water
right applications for water right permits for diversion of the state's
water from the Russian River, and also two unnamed tributaries to the
McNab Creek watershed as shown above.
In additional, the applicant has filed petitions to change the purpose
of use and places of use effecting the McNab Creek watershed and the
Russian River effected by the existing project under one (1) water right
permit and two (2) water right licenses.
(b) The applicant owns 612 acres of land that has had up to 331 acres of
vineyard, Christmas trees, pears, and pasture irrigated. This use is
covered under two (2) existing water right licenses and one (1) existing
water right permit.
In 1978, Permit 17331 (Application 24140) was granted by the SWRCB to
the petitioner to divert water from the Russian River for frost
protection of the vineyard.
In 1990, License 12648 (Application 17624) was granted by the SWRCB to
the petitioner to divert water directly from the Russian River for
irrigation of the vineyard. In the same year (1990) License 12649 was
granted by the SWRCB to the petitioner to collect water to storage from
McNab Creek for irrigation and frost protection of the vineyard.
The petitioner has filed petitions with the SWRCB to expand the place
of use to include the development of 595 net irrigated acres within the
gross 612-acre place of use.
The applicant has also filed three (3) new applications to divert an
additional 199 acre-feet of water from two unnamed streams and the
Russian River. Water will be used for recreation and stockwatering at
the reservoir and also irrigation, frost protection and heat control for
a net area of 595 acres of land within the gross 612-acre place of use.
(c) Under Application 29763, the applicant proposes to divert water from
two (2) unnamed stream tributaries to McNab Creek and the Russian River
to one existing reservoir and two proposed reservoirs. All three
pit-type reservoirs are off-stream. The existing reservoir has the
storage capacity of 45 acre-feet of water. The two proposed reservoirs
will have a storage capacity of 20 and 49.5 acre-feet of water. (My
Emphasis)
The total amount of water applied for is 139 acre-feet per annum of
storage. Water will be used for irrigation, frost protection, heat
control and recreation, and stockwatering at the reservoirs. The
applicant has requested to divert water from November 1 to April 30. (My
Emphasis)
The pubic notice did not disclose the specific amount of water (cfs) to
be diverted from the two (2) unnamed stream tributaries to McNab Creek,
and also the specific amount of water (cfs) to be diverted from the
Russian River.
(d) Under Application 29764, the applicant proposes to divert water from
an unnamed stream tributary to McNab Creek for frost protection. McNab
Creek is a tributary to the Russian River. (My Emphasis)
The total amount of water applied for is 30 acre-feet per annum of
direct diversion. The applicant has requested to divert water from March
15 to March 31. (My Emphasis)
The pubic notice did not disclose the specific amount of water (cfs) to
be diverted from the unnamed stream tributary to McNab Creek.
(e) Under Application 29765 the applicant proposed to divert water from
an unnamed tributary to McNab Creek. McNab Creek is a tributary to the
Russian River. (My Emphasis)
The total amount of water applied for is 30 acre-feet per annum of
direct diversion. The applicant has requested to divert water from March
15 to March 31. (My Emphasis)
The pubic notice did not disclose the specific amount of water (cfs) to
be diverted from the unnamed stream tributary to McNab Creek.
The total amount of water to be diverted by the applicant under the
three (3) applications is 199 acre-feet.
(f) Under License 12648 the petitioner diverts 2.75 cfs of water by
direct diversion from the Russian River from May 1 to June 30 of each
year for irrigation purposes. The total amount of water taken from the
source shall not exceed 192 acre-feet per year. (My Emphasis)
The petition change requests change in License 12648 to expand the
place of use from 331 acres to 612 acres of land.
(g) Under License 12649 the petitioner diverts 4.66 cfs of water to
storage at an off-stream reservoir from McNab Creek not to exceed 50
acre-feet from November 15 to May 31 of the succeeding year for
irrigation and frost protection purposes. (My Emphasis)
The petition change requests change in License 12649 to expand the
place of use from 331 acres to 612 acres of land.
(h) Under Permit 17331 issued in May, 1978, the petitioner diverts 42
cfs of water by direct diversion from the Russian River from March 1 to
May 31 and September 15 to November 15 of each year for the purpose of
frost protection. Also, 50 acre-feet of water per annum by storage was
permitted to be collected from November 1 to July 1 of the succeeding
year at a maximum rate of diversion not to exceed 5 cfs. The total
amount of water taken from the Russian River is 600 acre-feet from March
1 to May 31 and September 15 to November 15 by direct diversion, and
November 1 to July 1 of the succeeding year by storage. (My Emphasis)
The petition change requests change in Permit 17331 to add irrigation
as a purpose of use and expansion of the place of use from 331 acres to
612 acres of land.
(i) The total amount of water to be used by the applicant and petitioner
from the waterways under said applications, said licenses, and said
permit, is 1,041 acre-feet
CSPA PUBLIC TRUST PROTEST
This protest is based on environmental and legal grounds. The coho
salmon and steelhead trout of the Russian River and its tributaries have
been adversely impacted by diversions of the state's water. There are
about 86 water right applications pending before the State Water Board
to appropriate water from the Russian River Watershed. There are about
1,326 permitted water rights on the Russian River Watershed. There are
also 247 riparian and/or pre-1914 diverters in the Russian River
Watershed.
STATEMENT OF FACTS AND REASONS FOR PUBLIC TRUST PROTEST
1. The Russian River Watershed sustains Coho salmon and their habitat.
Russian River Coho salmon have been listed by the U.S. National Marine
Fisheries Service as threatened under the protection and provisions of
the federal Endangered Species Act.
The applicant/petitioner and the Division of Water Rights should
consult with the U.S. National Marine Fisheries Service to determine the
direct, indirect, and cumulative effects to Coho salmon and their
habitat in McNab Creek, and also the Russian River watershed, resulting
from the 3 applications and three petition for change, other pending
water right applications, including existing water right permits and
licenses. The recommendations from the U.S. National Marine Fisheries
Service should be incorporated into the terms and conditions of the
existing licenses, existing permit, and the proposed permits, if the
permits and petitions are approved by the SWRCB.
2. The proposed permits should contain mandatory daily streamflow
requirements below all points of diversion under the subject
applications, subject licenses, and subject permit to protect Coho
salmon, aquatic resources, fish species, and other beneficial uses of
the state's water pursuant to Section 782, California Code of
Regulations, Title 23, and other applicable statues and regulations.
(Emphasis Added)
3. The Russian River Watershed sustains steelhead trout and their
habitat. Russian River steelhead trout have been listed by the U.S.
National Marine Fisheries Service as threatened under the protection and
provisions of the federal Endangered Species Act.
The applicant/petitioner and the Division of Water Rights should
consult with the U.S. National Marine Fisheries Service to determine the
direct, indirect, and cumulative effects to steelhead trout and their
habitat in McNab Creek, and also the Russian River watershed, resulting
from the 3 applications and three petition for change, other pending
water right applications, including existing water right permits and
licenses. The recommendations from the U.S. National Marine Fisheries
Service should be incorporated into the terms and conditions of the
existing licenses, existing permit, and the proposed permits, if the
permits and petitions are approved by the SWRCB.
4. The subject applications and the proposed permits, the subject
licenses, and the subject permit should contain mandatory daily
streamflow requirements below all points of diversion under the subject
applications, subject licenses, and subject permit to protect steelhead
trout, aquatic resources, fish species, and other beneficial uses of the
state's water pursuant to Section 782, California Code of Regulations,
Title 23, and other applicable statues and regulations. (Emphasis Added)
The CSPA recommends the applicant/petitioner release 60% of the average
unimpaired flow from and below all points of diversion. When flows
decrease to 60% of the average unimpaired flow, all diversions should
cease.
5. The SWRCB approved and granted the petitioner in May 1978 (20 years
ago) the use of 600 acre-feet of water under a direct diversion rate of
42 cfs for frost protection on 331 acres of land. The CSPA believe that
the use of 600 acre-feet of water under a direct diversion rate of 42
cfs for frost protection, also based on the season of use when frost
activities do not occur, is the unreasonable use of the state's water.
(My Emphasis)
Though the petitioner proposes to change the purposes of use of the 600
acre-feet of water under a direct diversion rate of 42 cfs from frost
protection to irrigation purposes, the SWRCB should require the
petitioner to cease diverting the 600 acre-feet of water for frost
protection until the petitioner's change petition has been approved by
the SWRCB.
The staff of the SWRCB should obtain a written statement from the
petitioner which shows how the 600 acre-feet of water was used during
the season of use since 1978 for frost protection purposes, and not used
for irrigation purposes.
6. Water quality, such as water temperature for cold water fish and
aquatic species, in the McNab Creek watershed and also the Russian
River, to be affected by the existing and proposed project should be
sufficient below all points of diversion under the subject applications,
subject licenses, and subject permit to maintain and keep in good
condition at all times Coho salmon and steelhead trout (all life
stages), and aquatic resources in the McNab Creek watershed, and also in
the Russian River, pursuant to state and federal water quality statutes
and regulations. (Emphasis Added)
The subject applications, subject licenses, and subject permit should
contain mandatory daily water temperature requirements that sustains
cold water species at all times.
7. Should the applications, and petition changes be approved by the
SWRCB, the diversion of the state's water of the McNab Creek watershed,
and also of the Russian River by the applicant should be limited from
December 15 to March 31. No diversion of the state's water under the
applications and change petitions should be allowed during dry, and
critical dry water years to protect Coho salmon and steehead trout
habitat in the McNab Creek watershed, and also in the Russian River
unless expressly approved by the U.S. National Marine Fisheries Service.
Consequently, the SWRCB should amend the existing licenses and permit,
including the applications, accordingly concerning the season of direct
diversion and storage. (My Emphasis)
8. Fish and aquatic species may have already have been diverted from the
McNab Creek watershed, and also from the Russian River, into the project
diversion works under the existing licenses and permit, and could be
diverted into the existing reservoirs under the water right
applications. The applicant/petitioner should be required by the SWRCB
to maintain a minimum pool level at all reservoirs to protect fish and
aquatic species entrained in the existing reservoir.
9. The existing reservoir may sustain fish species and aquatic. The
proposed two reservoirs may sustain fish and aquatic species. Part of
the purposes of use is for private recreation at the reservoir. Fish
are the property of the people of the state of California, and are pubic
trust assets.
Pursuant to Section 781 of the California Code of Regulations, Title
23, the applicant/petitioner should be required by the SWRCB to allow
public access to the waters of the reservoirs for the purposes of
fishing, unless and until all unscreened diversion works are screened
with state of the art fish screens.
10. The applicant should be required by the SWRCB to screen all
diversions to prevent fish such as threatened Coho Salmon and threatened
Steelhead Trout (all life stages), and other fish species, from being
entrained in the diversions and harmed.
11. The applicant should be required by the SWRCB to install and
maintain measuring devices which measures the amount of water bypassed
below all points of diversion, and also measure the amount of water
diverted and stored for use to ensure compliance of the existing
licenses, existing permit, and the proposed permits.
12. The applicant/petitioner is proposing stockwatering as a purpose of
putting the water to beneficial uses for the existing and proposed new
project. In the event stockwatering involves stock such as cattle, the
applicant/petitioner should be required by the SWRCB and also the U.S.
National Marine Fisheries Service to fence the affected waterways to
protect water quality in the McNab Creek watershed, and also protect
water quality in the Russian River watershed.
The CSPA recommends a buffer zone of 300 feet (streambank to fences)
which is presently being considered by the U.S. National Marine
Fisheries Service.
13. Water diversions in the Russian River watershed are highly
controversial among the public. Consequently, these applications and
petition changes should be treated accordingly.
14. Because of the potential adverse direct, indirect, and cumulative
impacts to threatened Coho salmon and threatened steelhead trout and
their habitat, and other species and their habitat, including the
beneficial uses of the state's water, resulting from the existing and
proposed project, the SWRCB should prepare an Environmental Impact
Report pursuant to the requirements of the California Environmental
Quality Act and its Guidelines.
15. The California Environmental Quality Act and its Guidelines requires
that potential cumulative impacts to the environment are disclosed and
evaluated resulting from proposed projects, existing projects, and
future projects. The CSPA believes not only should the cumulative
impacts to the environment such as threatened Coho salmon and steelhead
trout be disclosed and evaluated by the SWRCB, but that the cumulative
impacts should be mitigated by the SWRCB resulting from the proposed
water right applications, the subject licenses change petition, the
subject permit change petition, and other pending water right
applications before the SWRCB, including existing licenses and permits.
The CSPA Public Trust Protest is Based on the Following:
16. The CSPA public trust protest is based on: (a) Common Law Public
Trust Doctrine; (b) California Water Code; (c) Article X, Section 2 of
the California Constitution; (d) California Environmental Quality Act
and its Guidelines; (e) federal Clean Water Act; (f) federal Endangered
Species Act; and (g) state laws and regulations as follows:
The CSPA Public Trust Protest is Based on the Following:
The Public Trust
The State Water Board has a duty to protect public trust resources such
as Coho salmon and steelhead trout 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 McNab Creek watershed, and the Russian River
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 as trustees.
The California Supreme Court in its Mono Lake Decision [National
Audubon Society v. Department of Water and Power, City of Los Angeles
(33 Cal.3d 419,658 P.2d 709-1983) reiterated and clarified some of its
past rulings regarding public trust properties, uses and values. The
Court further emphasized the State's overall duties and responsibilities
to protect the people's common heritage of streams, lakes, marshlands
and tidelands for the many uses covered by the public trust.
In this 1983 ruling, the California Supreme Court also stated:
o Parties acquiring rights in trust property (in this case water), hold
those rights subject to the trust, and can assert no vested right to use
those rights in a manner harmful to the trust.
o The public trust is more than an affirmation of the State power to use
public property for public purposes, it is the duty to take public trust
properties (fish, wildlife and water quality) into account in the
planning and allocation of water and to avoid or minimize any harm to
these properties, interests or associated uses whenever feasible.
o The State, under its public trust responsibilities, has the
affirmation of the duty and continuing authority to vigorously protect
the public trust uses and to avoid or minimize harmful impacts to such
uses.
o The public trust is more than an affirmation of the state's power to
use public property for public purposes. It is an affirmation of the
duty of the State to protect the people's common heritage of streams,
lakes, marshlands and tidelands, surrendering that right of protection
only in rare cases when the abandonment of that right is consistent with
the purposes of the trust.
o The Public Trust doctrine protects navigable waters from harm caused
by diversion of non-navigable tributaries.
o The State can reconsider previous water allocations at any time under
its continuous authority.
o The public trust includes the protection of ecological and biological
values of water and waterways.
o Any member of the general public has standing to raise a claim of harm
to the public trust. (Emphasis Added) This CSPA public trust protest is
in accordance with that court ruling.
The CSPA 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 McNab Creek
Watershed and also the Russian River 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 - Coho Salmon and Steelhead Trout and Their
Habitat - Russian River Watershed
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 McNab Creek Watershed, and also the Russian River
Watershed.
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 McNab Creek watershed and the Russian
River watershed must be protected by the State Water Board against harm
or degradation by the applicant/petitioner.
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 McNab Creek watershed and also the Russian River
watershed 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 McNab Creek watershed and the
Russian River watershed to protect public trust resources of the McNab
Creek Watershed and also the Russian River Watershed.
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 782
and 784 describes the State Water Board's authority to require release
of stored water to protect the trust assets.
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.
United States Federal Endangered Species Act
The U.S. National Marine Fisheries Service has a public duty and a
public obligation to protect threatened Coho salmon and steelhead trout
and their habitat of the Russian River Watershed, and also other
watersheds where this species has been listed for protection under the
provisions of the federal Endangered Species Act. The CSPA expect the
U.S. National Marine Fisheries Service to carrying out its public duty
and public obligation to protect Coho salmon, steelhead trout, and other
listed fish species in the Russian River watershed protected under the
provisions of the federal Endangered Species Act.
Under what conditions may this public trust protest be disregarded and
dismissed?
1. None at this time, subject to the above conditions, in which are
agreeable to the CSPA.
Respectfully Submitted
________________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-836-1115 - Fax: 916-836-2062
e-mail cspa@psln.com
April 9, 1998
cc: Andy Chu, Application Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Nelson and Sons, Inc., Applicant
c/o Rau and Associates Inc.
100 North Pine Street
Ukiah, CA 95482
James Lecky, Chief
Protected Species
U.S. National Marine Fisheries Service
501 West Ocean Blvd., Suite 4200
Long Beach, CA 90802-4213
Jim Bybee, Supervisor
Chris Mobley, Fisheries Biologist
U.S. National Marine Fisheries Service
777 Sonoma Avenue
Santa Rosa, CA 95404
Mike Sherwood, Esquire
Earthjustice Legal Defense Fund
180 Montgomery Street, Suite 1725
San Francisco, CA 94104-4209
Steve Volker, Esquire
Earthjustice Legal Defense Fund
180 Montgomery Street, Suite 1725
San Francisco, CA 94104-4209
Michael Jackson, Esquire
Attorney at Law
P.O., Box 207
Quincy, CA 95971
Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Avenue, Suite D
Woodland, CA 95695
Interested Parties
For further information contact Bob Baiocchi at either 530-836-1115 or
at e-mail address: cspa@psln.com