State of California
Before the State Water Resources Control Board
U.S. Department of the Army, Petitioner and Permittee
Application 10211 - Water Rights Permit 5881
Petition for Increasing the Place of Use and Adding Municipal Use as a Purpose of Use
City of San Luis Obispo, Petitioner and Permittee
Application 10216 - Water Rights Permit 5882
Petition for Extension of Time and the Proposed
Salinas Dam and Reservoir Expansion Project
Salinas Dam and Reservoir
Salinas River tributary to Pacific Ocean
Public Trust Protest by California Sportfishing Protection Alliance Against U.S. Department of the Army Regarding Petition Change and Public Trust Complaint by the California Sportfishing Protection Alliance Against U.S. Department of the Army and the City of San Luis Obispo Regarding the Operation of Salinas Dam and Reservoir and Related Divisions Under Water Rights Permits 5881 and 5882
We the California Sportfishing Protection Alliance (hereinafter known as "CSPA") of P.O. Box 357, Quincy, CA 95971, c/o Bob Baiocchi, Consultant, CSPA, have carefully read a copy of, or a notice of September 12, 1994, relative to the above mentioned change petition filed by the U.S. Department of the Army. The CSPA also filed a protest against the petition for extension of time for the proposed Salinas Reservoir Expansion Project by the City of San Luis Obispo. This filing is also a public trust complaint against the U.S. Department of the Army and the City of San Luis Obispo regarding the Operation of Salinas Dam and Reservoir and related diversions and uses under water rights permits 5881 and 5882.
The CSPA public trust complaint is being filed in accordance with Title 23 Sections 820, 821, and 823 California Code of Regulations. The public trust protest is being filed in accordance with Title 23 Section Section 745 California Code of Regulations.
According to the Division of Water Rights petition notice of September 12, 1994 regarding Application 10211, Water Right Permit 5881, and the subject change petition the following is described and disclosed:
Application 10211 - WR Permit 5881- The Project
Water Rights Permit 5881 was issued by the State Water Board on October 9, 1941. The storage amount under Permit 5881 is 45,000 acre-feet of water. The storage facility is Salinas Reservoir. Salinas Reservoir is located on the Salinas River. The storage collection season is from November 1 to June 30. The direct diversion rate under Permit 5881from the Salinas River is 12.4 cfs and the season of direct diversion is from January 1 to Decemeber 31 annually. The purpose of use for storage and direct diversion under Permit 5881 is for domestic purposes. The place of use under Permit 5881 is Camp San Luis Obispo and vicinity.
The present status of the project is as follows: Water is either directly diverted from the river or collected to storage at the Salinas Reservoir. The water is used at Camp San Luis Obispo, and the City of San Luis Obispo and vicinity including Cuesta Junior College. The project has been inspected and a license will be issued for an amount of 9,290 acre-feet per annum. The maximum amount of water held in storage has been 26,000 acre-feet. The maximum amount of water beneficially used by direction diversion has been 8.42 cfs.
The U.S. Department of the Army (hereinafter known as "Army Corps") has peitioned the State Water Board to: (1) Increase the place of use to include the City of San Luis Obispo and vicinity including Cuesta Junior College; and (2) add municipal use as a purpose of the use.
We reference the information and data in the Division's Notice of September 12, 1994 for said change petition.
Petition for Extension in Time and Petition for the Proposed Salinas Reservoir Expansion Project - Application 10216 - Water Rights Permit 5882 - City of San Luis Obispo
The CSPA filed a public trust protest against the City of San Luis Obispo for its petition for extension of time for the proposed Salinas Reservoir Expansion Project. We reference the Division of Water Rights file records for said protest and said petition, and we reference all filing and submittals made by the CSPA to the executive branch of the State Water Resources Control Board and the staff of the Division of Water Rights.
Environmental Information - Application 10211 - Water Right Permit 5881 - Proposed Petition Changes - U.S. Department of the Army and Application 10216 - Water Rights Permit 5882 - City of San Luis Obispo
The Division of Water Rights did not disclose any pertinent environmental information to the public in the Division's petition notice of September 12, 1994 and the public notice for the petition for extension of time and the proposed Salinas River Expansion Project by the City of San Luis Obispo.
We believe the petitioner (Army Corps) must comply to the California Environmental Quality Act and its guidelines and the National Environmental Policy Act and its requirements for said petition changes, including evaluating and mitigating potential direct, indirect and cumulative impacts to the public trust resources of the Salinas River resulting from: (1) the existing conditions under the terms and conditions in Permit 5881; the existing operation of the project under permits 5881 and 5882; (3) the proposed expansion project by the City of San Luis Obispo; (4) the changes in the places of use and the purpose of use under the change petiton; and (5) the terms and conditions in the live stream agreement.
Protests - Application 10211 - Water Right Permit 5881 - Proposed Change Petition
According to the notice of September 12, 1994, the following is stated: A copy of the protest must also be sent to the petitioner. Protestant must provide facts, which explain how granting the petition would adversely affect the public interest, the public trust, the environment, or injure the protestant as a legal user of water.
This following statement of reasons and facts in this public trust protest and in this public trust complaint will answer the above mentioned issues and legal questions because the CSPA public trust protest will benefit the public, benefit the public trust resources of the State of California (Salinas River watershed), and will protect the property of the people of the State of California (public trust resources are the property of the people which include: the water, the fish, the wildlife, the threatened and endangered species, the riparian habitat, the water quality, the wetlands, and the ecosystem of the Salinas River watershed ).
Public Trust Complaint Regulations - Title 23 Section 820 California Code of Regulations
a) The following is the name and address of the complaintant:
California Sportfishing Protection Alliance
c/o Bob Baiocchi, Consultant
P.O. Box 357
Quincy, CA 95971
I refer you the the requirement of Title 23 Section 820 (a) of the California Code of Regulations.
b) The nature and location of the alleged violations are as follows:
1. Violation of California Fish and Game Code 5937. The location is the Salinas Dam and Reservoir which is locacted on the Salinas River. I refer you to the CSPA Statement of Reasons and Facts for detailed information, data and state law. I also refer you to the applicable laws cited by the CSPA under " The CSPA Public Trust Protest and Public Trust Complaint is Based on the Following:"
2. Violation of Title 23 Section 782 California Code of Regulations. The location is the Salinas Dam and Reservoir which is locacted on the Salinas River. I refer you to the CSPA Statement of Reasons and Facts for detailed information, data state law and state regulations. I also refer you to the applicable laws cited by the CSPA under " The CSPA Public Trust Protest and Public Trust Complaint is Based on the Following:"
3. Violation of the common law public trust doctrine. I refer you to the CSPA Statement of Reasons and Facts for detailed information, data and state law. I also refer you to the applicable laws cited by the CSPA under " The CSPA Public Trust Protest and Public Trust Complaint is Based on the Following:"
4. Violation of California Environmental Quality Act and Its Guidelines. I refer you to comments to the Division of Water Rights and the executive branch of the State Water Resources Control Board by the CSPA to the Draft Environmental Impact Report prepared by the City of San Luis Obispo for the proposed Salinas Reservoir Expansion and its Petition for Extension of Time. I refer you to CEQA and its guidelines, and specifically to Section 15130 of the CEQA guidelines.
5. Violation of the California Water Code regarding filing a petition for extension of time by the City of San Luis Obispo for a major water expansion project. I refer you to the comments by the CSPA to the Division of Water Rights and the executive branch of the State Water Resources Control Board which are contained in the files. I refer you to the CSPA Statement of Reasons and Facts for detailed information, data and state law. I also refer you to the applicable laws cited by the CSPA under " The CSPA Public Trust Protest and Public Trust Complaint is Based on the Following:"
6. Threatened violation of the terms and condition of Permit 5881 by the U.S. Department of the Army for allowing water under Permit 5881 to be transferred outside of the place of use to the City of San Luis Obispo without filing a petition change with the State Water Resources Control Board. I refer you to the CSPA Statement of Reasons and Facts for detailed information, data and state law.
7. Violation of the due process rights of the CSPA in its protest and subsequent filings with the staff of the Division of Water Rights and the exectutive branch of the State Water Resources Control Board regarding the Draft EIR filed by the City of San Luis Obispo, including other matters pertaining to the proposed expansion project, the petiton for extension of time, and the CSPA protest. I refer you to the comments by the CSPA to the Division of Water Rights and the executive branch of the State Water Resources Control Board which are contained in the files.
8. Abuse of discretion by the State Water Board in which the Army Corps under Water Right Permit 5881 and the City of San Luis Obispo under Permit 5882 were allowed not to put to full beneficial use the water allocated under said water right permits for a period of about 50 years. I refer you to the CSPA comments to the Division of Water Rights concerning the City of San Luis Obispo's petition, and I refer you to the Army Corps's petition and the CSPA statement of reasons and facts in this filing.
9. Violation of Sections 100 and 100.5 and Section 2 of Article X of the California Constitution by the Army Corps and the City of San Luis Obispo for the unreasonable use, unreasonable method of use, and the unreasonalbe method of diversion of use, for failing to protect and provide water from Salinas Dam and Reservoir for the public trust resources of the Salinas River below Salinas Dam and in the downstream areas. I refer the statement of reasons and facts in this CSPA filing, including the terms and conditions in water rights permits 5881 (Army Corps) and 5882 (City of San Luis Obispo).
I refer you to the requirements of Title 23 Section 820 (b) of the California Code of Regulations.
c) The public trust resources of the Salinas River watershed are the property of the people of the State of California and are public trust assets. The public trust water resources are also the property of the people of the State of California. Members of the CSPA recreate in the waters of the State of California. Members of the CSPA are also included as members of the public as defined by "people of the State of California". When public trust resources are adversely affected by water users such as the Army Corps and the City of San Luis Obispo concerning the operations of Salinas Dam and Reservoir under permits 5881 and 5882, the CSPA and the public are also adversely affected.
I refer you the the requirements of Title 23 Section 820 (c) of the California Code of Regulations.
d) The Army Corps and the City of San Luis Obispo must be required by the State Water Board to submit hydrology records concerning the specific daily releases of water from Salinas Dam since the project became operational. The purpose of this statement is that this record would show how much water has been released daily from the dam to protect public trust resources below the dam and in the downstream areas, and whether downstream water rights were affected and injured.
I refer you the the requirements of Title 23 Section 820 (d) of the California Code of Regulations.
e) The specific actions requested by the CSPA are contained in the CSPA statement of reasons and facts in this filing.
I refer you the the requirements of Title 23 Section 820 (d) of the California Code of Regulations.
f) Any member of the public can file a public trust complaint complaining about adverse impacts to public trust resources and requesting the State Water Board to protect the public trust resources. I refer you to the Mono Lake Decision.
g) We are requesting the State Water Board to investigate this CSPA public trust complaint in accordance with Title 23 Section 821 California Code of Regulations. I reference the following CSPA public trust complaints in which investigations were conducted by the State Water Board's staff: (1) CSPA Complaint against East Bay MUD regarding the Lower Mokelumne River; (2) CSPA complaint aganist Yuba County Water Agency et al. concerning the Lower Yuba River; (3) CSPA complaint against the U.S. Bureau of Reclamation regarding the Cachuma Project and the Santa Ynez River; (4) CSPA Complaint against the Pacific Gas and Electric Compant regarding Lake Almanor and the North Fork Feather River; and (5) Carmel River Steelhead Association complaint against California American Water Company regarding the Carmel River.
h) In accordance with Title 23 Section 822 California Code of Regulations, we are requesting a hearing on the CSPA public trust complaint. I reference the following hearings in which hearings were held by the State Water Board on CSPA complaint: (1) CSPA Complaint against East Bay MUD regarding the Lower Mokelumne River; (2) CSPA complaint aganist Yuba County Water Agency et al. concerning the Lower Yuba River; (3) CSPA complaint against the U.S. Bureau of Reclamation regarding the Cachuma Project and the Santa Ynez River; and (4) Carmel River Steelhead Association complaint against California American Water Company regarding the Carmel River. The CSPA CSPA Complaint against the Pacific Gas and Electric Compant regarding Lake Almanor and the North Fork Feather River has not been set for hearing yet by the State Water Board.
Statement of Reasons and Facts For Public Trust Protest and Public Trust Complaint
by the California Sportfishing Protection Alliance
1. " The Salinas River system drains a large basin in the northern interior of San Luis Obispo County. The Salinas River drains the largest single watershed in the Central Coast area and flows northward into Monterey County and discharges into Monterey Bay (DWR, 1991). Salinas Dam was constructed by the U.S. Army Corps of Engineers on the Salinas River during 1941 and 1942 as a water supply reservoir for Camp San Luis Obispo. Currently, the dam is operated by the San Luis Obispo County Flood Control and Water Conservation District as a water supply source for the City of San Luis Obispo. " [See page 3-43; Under Water Resources/Quality; Section 3.4.1.1; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
2. " The Salinas River is the Central Coast region's largest river, flowing through the longest intermountain valley in the state. It originates in the mountains to the east of City of San Luis Obispo and flows 170 miles northward to Monterey Bay, largely paralleling U.S. Highway 101. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
" The Salinas has been called the "upside-down river" because it flows north and, for much of its length, underground (Fisher, 1945, referenced in U.S. National Park Service, 1992). It is one of the largest "submerged" rivers in the U.S. (California Coastal Commission, 1987), flowing through extremely porous substrates underlying the bed and flood plain. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
" Headwaters of the Salinas are dammed at Santa Margarita Reservoir [Salinas Dam and Reservoir] to provide water for the City of San Luis Obispo. Coming out of the hills, the river meanders through valley lands around Atascedero and Paso Robles in San Luis Obispo County. In Monterey County, for the final half of its length, the river main stem passes through the Salinas Valley, one of the state's richest farming regions. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
" Near the county line, the Salinas receives waters from major tributary rivers, the Nacimiento and San Antonio, which are also dammed. The dams on the Nacimiento and San Antonio rivers were build and are operated by Monterey County water supply interests. They are used primarily for recharging groundwater in the Salinas Valley, where wells are the source of water for farms and urban use in the city of Salinas. Stored water is released from the dams to flow down the river for percolation into the ground. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
" The Salinas Valley in Monterey County is faced with a number of water problems including: widespread groundwater overdraft and inadequate water supply for recharge; seawater intrusion into aquifers near the coast caused by groundwater depletion; surface and ground water quality problems from nutrient enrichment and pesticides; and flooding. The Monterey County Water Resources Agency (MCWRA formerly the Monterey County Flood Control and Water Conservation District) has embarked on a major planning effort to solve problems relating to flood control, water supply and environmental protection. This program, the Salinas River Basin Water Resources Management Plan Study, involves the inventory of natural and socio-economic conditions; review of watershed, river and groundwater management; and study of water supply and demand (Source: various editions of the Water Resources Quarterly, Newsletter for the Salinas River Basin Water Resources Management Planning Project). " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; pages 149 and 150]
3. The Salinas River below Salinas Dam sustains public trust fishery resources and other public trust resources. Fish and wildlife resources are the property of the people of the State of California and are public trust resources and assets. Public trust fishery resources need water to survive and exist.
The State Water Board issued Water Right Permit 5881 to the Army Corps in 1941. The State Water Board also issued Permit 5882 to the City of San Luis Obispo during that period in time. The terms and conditions in said permits do not have a mandatory daily flow requirement, as required by Fish and Game Code 5937, to protect the public trust fishery resources below the dam and in the downstream areas in the Salinas River affected by the operations of Salinas Dam and Reservoir under permits 5881 and 5882.
California Fish and Game Code 5937 required the Army Corps to provide for mandatory daily flows from Salinas Dam to keep fish below the dam in good condition at all times. Fish and Game Code 5937 also required the State Water Board to order mandatory daily flow requirements in Water Rights Permits 5881 and 5882. The Army Corps and the City of San Luis Obispo violated state law (Fish and Game Code 5937) when it failed to maintain daily streamflows in the Salinas River below the dam to keep the public trust fish in good condition at all times. The State Water Board violated Fish and Game Code 5937 when it issued Permit 5881 to the Army Corps and issued Permit 5882 to the City of San Luis Obispo and did not order and require mandatory daily streamflow requires from Salinas Dam to keep the public trust fish in good condition at all times below the dam and in the downstream areas. In summary, fish need water to survive and state law requires daily releases of water from all dams in the state to keep the public trust fishery resources in good condition at all times.
We are requesting the Army Corps to prepare an Environmental Impact Report - Environmental Impact Statement for said petition changes because of the adverse impacts to the public trust fishery resources of the Salinas River below the dam and in the downstream areas. Said EIR-EIS must contain an evaluation of the present condition of the public trust fishery resources in the Salinas River below the dam and in the downstream areas, and fishery resources in tributaries flowing into the reservoir. Said evaluation must include an inventory of the species in the river, and in tributaries flowing into the reservoir, and the condition of their habitat. Said evaluation should also include an evaluation of the pre-project fish populations (all species) and their habitat in the river below the dam and in the downstream areas, and also in the tributaries flowing into the reservoir. Said EIR-EIS must also include the results of an IFIM study to determine the amount of water to be released from Salinas Dam as required by Fish and Game Code 5937.
We refer you to Nos. 9 and 10 on pages 12 thur 18 concerning the environmental issues which must be studied, evaluated and mitigated in the environmental document.
4. We believe the Army Corps has a duty to comply fully with NEPA because the proposed petition change is a federal action which has and will continue to have adverse direct, indirect and cumulative impacts to the public trust fishery resources and environment of the Salinas River below the dam and in the downstream areas. I refer you to the NEPA regulations and requirements.
We are aware that the State Water Board cannot order the Army Corps, a federal agency, to prepare a NEPA document, but the Army Corps has a duty and responsible to comply with NEPA and its requirements. We are requesting the Army Corps to comply fully with NEPA and its requirements and prepare said environmental document for said petition changes and the subject Salinas Reservoir Expansion Project.
5. We also believe the Army Corps has a duty to comply with CEQA and its Guidelines for said change petition and prepare an adequate EIR which includes a cumulative environmental impact analysis which complys with Section 15130 of the CEQA guidelines. Said EIR must mitigate to less than significant the cumulative environmental impacts to public trust resources of the Salinas River watershed below the dam and in the downstream areas from the operations of the project (present operation of Salinas Dam and Reservoir), proposed projects (Salinas Reservoir Expansion Project), existing projects (downstream dams and diversions , and future water projects. We reference Section 15130 of the CEQA Guidelines and other applicable guidelines.
6. We believe the waters of the Salinas River watershed are fully appropriated until the State Water Board first orders mandatory daily environmental flow requirements to protect the public trust fishery resources in the Salinas River below the dam and in the downstream areas. We cite the petition filed by the City of San Luis Obispo and this change petition filed by the Army Corps. Collectively both petitions will have cumulative impacts to surface flows as well as the underflow of the Salinas River below the dam and in the downstream areas. The proposed expansion project has the potential to cause further seawater intrusion and adversely impact the "salad bowl" of the world (Salinas Valley).
7. The Army Corps must include in said EIR-EIS a detailed daily and annual hydrology analysis which shows that there will be sufficient water in the Salinas River watershed to sustain at all times the public trust fishery resources as well as allow for the daily diversion of 12.4 cfs from the river and the storage of 26,000 acre-feet during the storage season during: (1) wet water years; (2) normal water years; (3) below normal water years; (4) dry water years; and (5) critically dry water years. Sufficient water for public trust fishery resources means for all life stages and their habitat.
8. Pursuant to Title 23 Section 820 (e) California Code of Regulations and in accordance with the CSPA Public Trust Complaint, we are requesting the State Water Board to require the Army Corps and the City of San Luis Obispo to release from Salinas Dam 50% of the inflow into the Salinas Reservoir from the Salinas Dam to protect the public trust fishery resources and the ecosystem of the Salinas River below the dam and in the downstream areas.
This request is reasonable since it is less than what is being proposed by the State Water Board for Mono Lake and its tributaries to protect public trust resources of Mono Lake. This request made be in compliance with Fish and Game Code 5937, however more water may be necessary to protect all public trust resources in the Salinas River watershed.
9. The following are the potential direct, indirect and cumulative impacts to the environment which must be studied by the Army Corps in the EIR-EIS which relate to: (1) the existing conditions under the terms and conditions in water right permits 5881and 5882; (2) the proposed expansion project by the City of San Luis Obispo; (3) the proposed changes in the places of use and the purpose of use under the change petiton; and (4) the live stream agreement.
We submit and request that the following issues and questions be studied, evaluated and mitigated by the Army Corps and the City of San Luis Obispo. The CSPA request is pursuant to Title 23 Section 820(e) California Code of Regulations.
Pre-Project and Post Project Fishery Resources
a) The adverse direct and cumulative impacts to existing fish populations and habitat in the Salinas River below the dam and in the downstream areas. See written explanation below.
b) The adverse direct and cumulative impacts to pre-project fish populations and habitat in the Salinas River below the dam and in the downstream areas. See written explanation below.
What was the nature and extent of the pre-project fishery resources and their habitat in the Salinas River watershed below Salinas Dam and in the downstream areas? What is the nature and extent of the fishery resources and their habitat in the Salinas River below the dam and in the downstream areas today? What are the cause(s) of the decline to the fishery resources? How do the Army Corps and the City of San Luis Obispo propose to mitigate to less than significant the adverse impacts to the fishery resources and their habitat below the dam and in the downstream areas?
Riparian Habitat
c) The potential adverse direct and cumulative impacts to riparian habitat in the Salinas River below the dam and in the downstream areas.
What was the nature and extent of the pre-project riparian habitat in the Salinas River watershed below the dam and in the downstream areas? What is the nature and extent of the riparian habitat in the Salinas River below the dam and in the downstream areas today? In what manner did wildlife species rely upon this riparian habitat? Has this riparian habitat been adversely impacted since operations of Salinas Dam and Reservoir? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of riparian habitat in the Salinas River watershed below the dam and in the downstream areas?
Water Quality
d) The potential adverse direct and cumulative impacts to water quality in the Salinas River below the dam and in the downstream areas.
What was the nature and extent of the pre-project water quality in the Salinas River watershed below the dam and in the downstream areas? What is the nature and extent of water quality in the Salinas River below the dam and in the downstream areas today? In what manner did fish and wildlife resources and downstream water users rely on adequate water quality? Has water quality below the dam and in the downstream areas been adversely impacted since operations of Salinas Dam and Reservoir? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of water quality in the Salinas River watershed below the dam and in the downstream areas to sustain fish and wildlife species?
Surface Flow and Underflow
e) The potential adverse direct and cumulative impacts to surface flows and underflow of the Salinas River in the downstream areas below the dam. i.e. water flows downstream.
What was the nature and extent of the pre-project surface flows and underflow in the Salinas River watershed below the dam and in the downstream areas? What is the nature and extent of surface flows and the underflow in the Salinas River below the dam and in the downstream areas today? In what manner did fish and wildlife resources and downstream water users rely on adequate amounts of surface flows and the underflow? Has surface flows and the underflow below the dam and in the downstream areas been adversely impacted since operations of Salinas Dam and Reservoir? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of surface flows and underflow in the Salinas River watershed below the dam and in the downstream areas to sustain fish and wildlife species and water users?
Water Quality - Seawater Intrusion
(f) The potential adverse cumulative impacts to water quality in the lower river and to the Salinas Valley resulting from seawater intrusion and reduced flows in the river caused by the change petition and the proposed expansion project.
What was the nature and extent of the pre-project surface flows and underflow in the Salinas River watershed below the dam and in the downstream areas in the Salinas Valley? What is the nature and extent of surface flows and the underflow in the Salinas River below the dam and in the downstream areas in the Salinas Valley today? In what manner do water users rely on adequate amounts of surface flows and the underflow in the river in the Salinas Valley? Has surface flows and the underflow below the dam and in the downstream areas in the Salinas Valley been adversely impacted since operations of Salinas Dam and Reservoir? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of surface flows and underflow in the Salinas River watershed below the dam and in the downstream areas in the Salinas Valley to prevent seawater intrusion?
Threatened and Endangered Species
g) The potential adverse direct and cumulative impacts to threatened and endangered species in the Salinas River below the dam and in the downstream areas. i.e. California Red Legged Frog, Southwestern Pond Turtle and Tidewater Goby (Salinas River Lagoon).
What was the nature and extent of fish, aquatic, wildlife and plant species in the Salinas River watershed, which have been listed for protection under the federal Endangered Species Act and the State Endangered Species Act? What are the cause(s) of the decline to these threatened and endangered species and their habitat? What type of protection measures are necessary to protect these species from being further jeopardized from: (1) the existing conditions under the terms and conditions in Permits 5881and 5882; (2) the proposed expansion project by the City of San Luis Obispo; (3) the changes in the places of use and the purpose of use under the change petiton; and (4) the live stream agreement.
We submit and request the Armys Corps to obtain biological opinions from the U.S. Fish and Wildlife Service concerning recovery plans and mitigation measures to protect threatened and endangered species. This request is made pursuant to Title 23 Section 820(e) California Code of Regulations.
Wetlands
h) The potential adverse direct and cumulative impacts to wetlands below the dam in the Salinas River and downstream areas. The Army Corps have a duty and responsibility to protect wetlands.
What was the nature and extent of the pre-project wetlands in the Salinas River watershed below the dam and in the downstream areas? What is the nature and extent of wetlands in the Salinas River below the dam and in the downstream areas today? In what manner did wildlife species rely upon wetlands in the Salinas River below the dam and in the downstream areas? Has wetlands been adversely impacted since operations of Salinas Dam and Reservoir? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of wetlands in the Salinas River watershed below the dam and in the downstream areas?
Wildlife Resources
j) The adverse direct and cumulative impacts to existing wildlife populations and habitat in the Salinas River below the dam and in the downstream areas.
What was the nature and extent of the pre-project wildlife resources and their habitat in the Salinas River watershed below Salinas Dam and in the downstream areas? What is the nature and extent of the wildlife resources and their habitat in the Salinas River below the dam and in the downstream areas today? What are the cause(s) of the decline to the wildlife resources? How do the Army Corps and the City of San Luis Obispo propose to mitigate to less than significant the adverse impacts to the wildlife resources and their habitat below the dam and in the downstream areas?
Ecosystem (All Species)
j) The cumulative impacts to the ecosystem of the Salinas River resulting from: (1) all downstream surface and underflow diversions; (2) all downstream storage projects; (3) the existing conditions under the terms and conditions in Permit 5881; (4) the proposed expansion project by the City of San Luis Obispo; (5) the changes in the places of use and the purpose of use under the change petiton; and (6) the live stream agreement.
What magnitude and duration of daily releases of water from Salinas Dam are necessary to maintain and restore the ecosystem of the Salinas Clara River watershed today? Does the Army Corps and the City of San Luis Obispo propose to fund and conduct scientific studies to determine the daily amount of water necessary to protect and restore the public trust ecosystem in the Salinas River watershed below Salinas Dam and in the downstream areas?
CEQA and it Guidelines - Cumulative Environmental Impacts
k) So that there is no misunderstanding by the Army Corps concerning the requirements of CEQA and its Guidelines, we submit the following:
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 15355, 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 courts have found that a legally adequate cumulative impact analysis is an analysis of a particular project viewed over time and in conjunction with other related past, present and reasonably foreseeable projects whose impacts might compound or interrelate with those of the project at hand. Such an analysis assess cumulative damage as a whole greater than the sum of its parts. (See Environmental Protection Information Center v. Johnson (1985) 170 Cal. App. 3d 604, 625 [216 Cal. Rptr. 502, 515]
By far the most important recent case on cumulative impacts is Kings County Farm Bureau et al. v. City of Hanford (5th Dist. 1990) 221 Cal. App. 3d 692; 222 Cal. App. 3d 516a [270 Cal. Rptr. 650] The Court of Appeal held inadequate the cumulative impact analysis prepared for an EIR for a proposed coal-fired cogeneration power plant. The EIR's approach to assessing the significance of cumulative air quality impacts was based on a misunderstanding of the applicable legal requirements.
It is clear the Army Corps must prepare an EIR for the change petition as required by the California Environmental Quality Act and its Guidelines. Said EIR must contain a cumulative environment impact analysis of the cumulative impacts to the public trust resources of the Salinas River watershed as noted above
The CSPA will submit additional comments when it receives from the Army Corps the: (1) scoping letter; (2) draft environmental document; and (3) final environmental document.
Other Issues Which Must be Disclosed, Discussed and Evaluated by the Army Corps and the City of San Luis Obispo
10. We submit and request that the following issues and questions be studied, evaluated and mitigated by the Army Corps and the City of San Luis Obispo. The CSPA request is pursuant to Title 23 California Code of Regulations Section 820 (e).
The Army Corps and the City of San Luis Obispo must disclose, discuss and evaluate the following issues:
o Are there additional sources of water available to supply the domestic and municipal needs of the City of San Luis Obispo? i.e. (1) Limit growth, (2) ground water, (3) purchasing water from another water diverter, (4) State Water Project water and (5)De Sal Project. All of these alternatives must be evaluated in the EIR-EIS document.
o How much of all of the water available to the City of San Luis Obispo will be used for domestic uses (drinking, bathing and washing)? How much of all of the water available to the City of San Luis Obispo will be used for exterior uses (lawns, plants, swimming pools, washing cars, boats and sidewalks)? How much of all of the water available to the City of San Luis Obispo will be used for municipal uses? Describe the different between domestic uses and municipal uses. How much of all of the water proposed for use under the change petiton could be reduced and saved through water conservation during all water year types?
o Is there unappropriated water available in the Salinas River watershed? What is the specific amount of water available.
o Would public trust uses of water be adversely impacted if the change petition and the proposed expansion project are approved by the State Water Board?
o Would public trust uses of water would be adversely impacted if the Army Corps was not required to release daily amount of water below their diversion to protect the public trust resources of the Salinas River watershed?
o What is the specific amount of water lost in the proposed and existing City of San Luis Obispo distribution system?
o What other type of water rights and other diversions does the Army Corps and the City of San Luis Obispo have on any watershed where the City of San Luis Obispo obtains water?
o Disclose and describe the amount of water used for Camp San Luid Obispo.
o Does the Army Corps maintain an accurate fulltime measuring devise in the Salinas River below Salinas Dam which can accurately measure low flows as well as high flows?
11. Under Permit 5881the amount of storage is 45,000 acre-feet of water. The Permittee has put to beneficial use only 26,000 acre-feet of water. The permittee has had about 50 years to put the 45,000 acre-feet of water to full beneficial use. California Water Code 100 requires the permittee to put to full beneficial use the water permitted under permit 5881 After five years the unused water reverts back to the public. See Hawkins v. Smith.
We are requesting Permit 5881 is amended by the State Water Board to limit the amount of storage to 26,000 acre-feet of water, provided Permit 5881 contains specific daily amounts of water for public trust resources and uses. This must be reflected in the proposed license for Permit 5881. This request is made pursuant to Title 23 California Code of Regulations Section 820 (e).
Consequently there is 19,000 acre-feet of water available to the State Water Board to protect and restore the public trust fishery resources below Salinas Dam and in the downstream areas.
12. Under Permit 5881the amount of direct diversion from the river is 12.4 cfs of water. The Permittee has put to beneficial use only 8.42 cfs of water. The permittee has had about 50 years to put the 12.4 cfs of water to full beneficial use. California Water Code 100 requires the permittee to put to full beneficial use the water permitted under permit 5881. After five years the unused water reverts back to the public. See Hawkins v. Smith.
We are requesting Permit 5881 is amended by the State Water Board to limit the amount of direct diversion to 8.42 cfs of water, provided Permit 5881 contains specific daily amounts of water for public trust resources and uses. . This must be reflected in the proposed license for Permit 5881. This request is made pursuant to Title 23 California Code of Regulations Section 820 (e).
Consequently there is 19,000 acre-feet of water and about 2,900 acre-feet (Total 21,900 acre-feet) of water available to the State Water Board to protect and restore the public trust fishery resources below Salinas Dam and in the downstream areas.
13. There appears to be a threatened violation of Permit 5881 by the Army Corps. The State Water Board's staff must investigate whether water was diverted to the City of San Luis Obispo and vicinity including Cuesta Junior College under the terms and conditions of Permit 5881 and whether water was used for municipal use. Permit 5881 specifically states that under Permit 5881 the place of use is Camp San Luis Obispo and vicinity, and the purpose of use is domestic purposes.
In the event the permittee diverted water to to the City of San Luis Obispo and vicinity including Cuesta Junior College for the purpose of domestic and municipal purposes under the terms and conditions of Permit 5881, we recommend the permittee is fined $500 per day as required by Section 1052 (d) of the California Water Code. We believe that constitutes a treaspass as defined by Section 1052 of the California Water Code.
Our request for an investigation of threatened violations of the terms and conditions of Permit 5881is made pursuant to Title 23 California Code of Regulations Section 820 (e).
We also believe that in the event the permittee failed to comply with the terms and condition of Permit 5881, and also failed to releases water at all times from Salinas Dam to protect the public trust resources and public trust uses below the dam and in the downstream areas, we believe that constitutes unjust enrichment against the the City of San Luis Obispo, including the permittee (Army Corps).
14. As stated beforehand, the permittee is diverting 8.42 cfs from the Salinas River. In the event the permittee does not have fish screens on said diversion to prevent the entrainment of fish in the diversion, we are requesting the permittee to screen said diversion. This request is made pursuant to Title 23 California Code of Regulations Section 820 (e).
15. The Army Corps must evaluate the growth enducing impacts associated with the change petition and the municipal use as a new purpose of use, including the existing domestic uses. This request is made pursuant to Title 23 California Code of Regulations Section 820 (e).
16. We believe the Draft EIR prepared by the City of San Luis Obispo is deficient and is not in compliance with CEQA and its guidelines. We reference all CSPA submittal to the executive branch of the State Water Board and the staff of the Division of Water Rights concerning the proposed expansion project and said petition for extension of time.
We are requesting the State Water Board to require the City of San Luis Obispo to prepare a new supplemental EIR for said expansion project. This request is made pursuant to Title 23 California Code of Regulations Section 820 (e).
We are requesting the Army Corps to prepare an EIS-EIR for said petition changes. This request is made pursuant to Title 23 California Code of Regulations Section 820 (e).
17. The City of San Luis Obispo has used the legally wrong format to appropriate water from the Salinas River for its Salinas Reservoir Expansion Project. pursuant to the requirements of the California Water Code and Title 23 California Code of Regulations. Said requirements and regulations are very clear. A petition for extension of time is not the appropriate filing to develop and construct a major expansion project with the State Water Board.
The filing of an extension of time for said expansion project under the petition process caused the following:
(a) Avoided the due process of potential protestants and the public. The petition process allows for protests to be filed within 30 days, with limited public notice. The water right application process allows for 60 days in most cases, with full public notice.
(b) The water right application process provides for a description of the project and the amount of water to be appropriated, the season of appropriation, etc. The petition process simply provides for the status of the project with very little and/or no information on the amount of water to be appropriated.
c) The water right application process provides for environmental information such as the the requirements of the California Environmental Quality Act and its guidelines; the names of lead agency and the responsible agency under CEQA; opportunity for interest parties to provide important environmental information to the staff of the Division of Water Rights concerning the application, and that said information will be reviewed in accordance with CEQA; the opportunity to obtain protest forms; the opportunity to discuss the project with the environmental unit section of the Division of Water Rights and the engineering staff of the Division of Water Rights; and extensive information and data from the applicant when filing a water right application with the State Water Board concerning the proposed project. The peition process provides significant limited information to potential protestants and avoids discussing the CEQA process and the due process rights of the public under the CEQA process, and completely avoids the water right application process.
Also, the water right application process is long term with extensive review by the staff of the Division of Water Rights and the public. The petition process is short term and fast track with limited review by the staff of the Division of Water Rights and the public.
We reference all CSPA comments to the Division of Water Rights and the executive branch of the State Water Board concerning the water right application process and the City of San Luis Obispo's petiton for extension of time for the proposed Salinas River Expansion Project.
In accordance with the California Water Code and the California Code of Regulations, and pursuant to Title 23 Section 820(e) California Code of Regulations, we are requesting the State Water Board to require the City of San Luis Obispo to file a water right application for the Salinas Reservoir Expansion Project.
18. We submut and request the Army Corps and the City of San Luis Obispo to fund, prepare, and submit to the State Water Board a cumulative environmental impact analysis of the Salinas River watershed. We request this analysis pursuant to Title 23 California Code of Regulations Section 820 (e).
This request is reasonable, in the public interest, and in the best interest of the public trust resources of the Salinas River watershed since it will give the State Water Board the necessary environmental information to amend existing water right permits held by the Army Corps and the City of San Luis Obispo in the Salinas River watershed.
Dam Safety Problem - Salinas Dam
19. There apparently is a dam safety problem with Salinas Dam. This dam safety problem has the potential to cause damage to downstream private and public property and injure people. This dam safety problem must be corrected by the Army Corps with or without the expansion project, and as soon as possible, to protect private and public property, and prevent personal injury to people.
We submit and request the State Water Board to investigate this matter and consult with the Division of Dam Safery, State of California, and take immediate action to protect private and public property and prevent injury to people. This request is made pursuant to Title 23 Section 820(e) California Code of Regulations.
The Board's Power and Duty to Protect Public Trust Resources and Values
20. Two leading cases interpreting the public trust doctrine clearly show that the State Water Board has continuing authority to protect public trust uses at any time it deems appropriate. In National Audubon Society v. Supervior Court, 33 Cal.3d 419 (1983), the California Supreme Court considered the relationship between the appropriative water rights system and the public trust doctrine at some length. The Supreme Court found that the State, acting through the State Water Board, "retains continuing supervisory control over its navigable waters." (Id. at 445.) This principle "prevents any party from acquiring a vested right to appropriatre water in a manner harmful to the interests protected by the public trust". Even after the Board has "approved an appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. In exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs. Id. at 447. (My Emphasis)
Three years after the Supreme Court's decision in National Audubon Society, the court of appeal considered the application of the public trust doctrine to appropriate rights held by the U.S. Bureau of Reclamation for use in the Central Valley Project. In United State v. State Water Resources Control Board, 182 Cal.App.3d 82 (1986), the Bureau contended that "the Board had no authority to modify an appropriative permit once issued, and that the new standards for the protection of fish and wildlife will result in impairment of its vested appropriative rights." (Id at 149. Relying on National Audubon Society, the court squarely rejected the Bureau's argument, stating: "the state, acting through the [State] Board, has continuing jurisdication over appropriative permits and is free to reexamine a previous allocation decision." (Id at 150).
National Audubon Society and United States v. State Water Resources Control Board hold that the State Water Board has the authority at any time to impose restrictions on the appropriative rights held by the Army Corps and the City of San Luis Obispo on the waters of the Salinas River watershed. We submit that the State Water Board also has a duty and responsiblity to protect public trust resources when these public trust resources were overlooked when permits were issued to the Army Corps and the City of San Luis Obispo. We submit that the public trust resources were not protected when the State Water Board issued the subject permits.
We are requesting the State Water Board to amend the existing terms and conditions in said water permits so that the permits comply fully with state law and regulations. This request is being made pursuant to Title 23 Section 820(e) California Code of Regulations to protect and restore the public trust resources of the Salinas River watershed. Our requests are in acordance with Title 23 Section 820(e) California Code of Regulations and are clearly stated in this public trust complaint.
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The CSPA Public Trust Protest and Public Trust Complaint is Based on the Following:
The Authority and Duty to Act and Legal Obligations of the State Water Board to Protect Public Trust Resources
See CSPA write, including the following.
California Environmental Quality Act and its Guidelines
See CSPA write-up.
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 Salinas 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 complaint is in accordance with that court ruling.
The CSPA public trust protest and public trust complaint are 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 Salinas River watershed.
The State Water Board cannot continue to ignore its duty to enforce the law against water users on the Salinas River watershed. 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 Salinas 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 Salinas River watershed must be protected by the State Water Board against harm or degradation.
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 Salinas 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.
Under what conditions may this public trust protest and this public trust complaint be disregarded and dismissed?
As stated above pursuant to Title 23 Section 820(e) California Code of Regulations, and also in accordance with protest requirements.
A true copy of this public trust protest and public trust complaint has been served upon the U.S. Department of the Army and the City of San Luis Obispo and other interested parties by first class mail.
___________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Office Tel: 916-283-3767 (CSPA Quincy Office) or 916-836-0338 (Home Office) or 916-283-1007 (Law Office)
Fax: 916-283-5017 (CSPA Quincy Office) or 916-283-4999 (Law Office)
Date: September 28, 1994
Certificate of Service
Walt Pettit, Executive Director
State Water Resources Control Board
Ed Anton, Chief
Division of Water Rights
State Water Resources Control Board
U.S. Department of the Army
District Engineer
U.S. Army Engineer District, LA
300 North Los Angeles Street
Los Angeles, CA 90053
General Manager
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93403
Jim Crenshaw, President
Bill Jennings, Chairman
Mike Jackson, Counsel
Joel C. Baiocchi, Counsel
David Heaslett, Counsel
Tom Gregory, Pari Legal
California Sportfishing Protection Alliance
Boyd Gibbons, Director
c/o John Turner, Chief, Environmental Services
Department of Fish and Game
Wayne White, State Supervisor
U.S. Fish and Wildlife Service
Sacramento Office
Katherine Mrowka, Staff
Division of Water Rights
Interested Parties