State of California
Before the State Water Resources Control Board
Rancho Pauma Mutual Water Company, Applicant
Application 30160
Three Party Water Company, Applicant
Application 30165
James C. Roberts, Applicant
Application 30175
John A. Hankey, Applicant
Application 30260
San Luis Rey River Underflow thence
Pacific Ocean
Applications for Water Right To Appropriate Water
Public Trust Protest
by California Sportfishing Protection Alliance
We the California Sportfishing Protection Alliance (hereinafter known as "CSPA") of P.O. Box 357, Quincy, CA 95971, c/o Bob Baiocchi, Consultant, CSPA, have carefully read a copy of, or notices of July 29, 1994, relative to the above mentioned applications for water right filed by Rancho Pauma Mutual Water Company, Three Party Water Company, James C. Roberts, and John A. Hankey (hereinafter known as "Applicants" or the "Applicant").
According to the State Water Resources Control Board and the Division of Water Rights notice of July 29, 1994 regarding all applications, the following is described and disclosed:
Application 30160 - The Project - Rancho Pauma Mutual Water Company
The Applicant seeks an appropriative water right permit to directly divert 3.0 cfs of water not to exceed 1,270 acre-feet of water from the underflow of the San Luis Rey River. Water is extracted from seven existing wells equipped with 50 and 75 horsepower pumps, and conveyed through 5,000 feet of plastic and steel pipelines 4, 6 and 8 inches in diameter. Water is used for domestic purposes to serve 370 homes and for irrigation of 210 acres of avocados within 1,111 gross acres from January 1 to December 31 of each year. The project is located in Pauma Valley near the Pauma Valley County Club on the headwaters of the San Luis Rey River.
Based on information in the Division's notice of July 29, 1994, the applicant has been diverting the underflow of the San Luis Rey River without a valid water right. Diverting the state's water without a valid water right is the unauthorized use of the state's water subject to fines of $500 per day for each day of unauthorized diversion and use.
We reference the information and data in the Division's Notice of July 29, 1994 for said water right application.
Application 30165 - The Project - Three Party Water Company
The Applicant seeks an appropriative water right permit to directly divert 1.5 cfs of water not to exceed 250 acre-feet of water from the underflow of the San Luis Rey River. Water is extracted from seven existing wells equipped with 100 horsepower pumps, and conveyed through buried steel pipeline 8 inches in diameter. Water is used for irrigation of 118 acres of avocados from January 1 to December 31 of each year. The project is located in Pauma Valley, south of the Pauma Indian Reservation, in the headwaters of the San Luis Rey River.
Based on information in the Division's notice of July 29, 1994, the applicant has been diverting the underflow of the San Luis Rey River without a valid water right. Diverting the state's water without a valid water right is the unauthorized use of the state's water subject to fines of $500 per day for each day of unauthorized diversion and use.
We reference the information and data in the Division's Notice of July 29, 1994 for said water right application.
Application 30175 - The Project - James C. Roberts
The Applicant seeks an appropriative water right permit to directly divert 3.0 cfs of water not to exceed 1500 acre-feet of water from the underflow of the San Luis Rey River. Water is extracted from two existing wells equipped with 150 horsepower pumps and conveyed through 13,250 feet of motar lined steel pipeline 8 inches in diameter having an estimated capacity of 750 gallons per minute. Water is used for irrigation of 500 acres of avocados and citrus within a gross area of 1,897 acres from January 1 to December 31 of each year. The project is located in Pauma Valley at the Pauma Valley Ranch.
Based on information in the Division's notice of July 29, 1994, the applicant has been diverting the underflow of the San Luis Rey River without a valid water right. Diverting the state's water without a valid water right is the unauthorized use of the state's water subject to fines of $500 per day for each day of unauthorized diversion and use.
We reference the information and data in the Division's Notice of July 29, 1994 for said water right application.
Application 30260 - The Project - John A. Hankey
The Applicant seeks an appropriative water right permit to directly divert 1.116 cfs of water not to exceed 372 acre-feet of water from the underflow of the San Luis Rey River. Water is extracted from four existing wells equipped with 25 to 40 horsepower pumps and conveyed through 7,300 feet of PVC pipeline 6 inches and 8 inches in diameter. Water is used for domestic purposes and irrigation of 92 acres of citrus from January 1 to December 31 of each year. The project is located in Pauma Valley at Friendly Farms.
Based on information in the Division's notice of July 29, 1994, the applicant has been diverting the underflow of the San Luis Rey River without a valid water right. Diverting the state's water without a valid water right is the unauthorized use of the state's water subject to fines of $500 per day for each day of unauthorized diversion and use.
We reference the information and data in the Division's Notice of July 29, 1994 for said water right application.
Applications 30160, 30165, 30175 and 30260
Collectively and cumulatively, the above mentioned applicants are diverting illegally and propose to divert a collectively total of 8.616 cfs or 3,392 acre-feet of water during all water year types from the underflow of the San Luis Rey River at 15 existing wells.
Environmental Information - All Applications
According to the notice of July 29, 1994, and based on a review of information available at the time of the notices, the State Water Board's staff finds that the proposed projects may have a potential for causing a significant effect on the environment. The State Water Board, as the lead agency for the proposed projects pursuant to the California Environmental Quality Act (CEQA) and its Guidelines, will require the preparation of an Initial Study to determine whether a Negative Declaration is appropriate or whether an Environmental Impact Report will be necessary.
If you have any information which indicates that the project will have a significant effect on the environment, please send this information to the lead agency immediately and also to Mr. Mike Falkenstein, SWRCB, Division of Water Rights, and that "this information will be reviewed in accordance with CEQA".
Protests - All Applications
According to the notice of July 29, 1994, protests may be based on possible injury to vested rights or an allegation that the proposed appropriation would not be within the State Water Board's jurisdiction, would not be in in the public interest, would have an adverse environmental impact, would result in waste, unreasonable method of use, or unreasonable method of diversion, would impair public trust uses, or would be contrary to law. The deadline date for filing protests is about September 8, 1994.
Statement of Reasons and Facts For Public Trust Protest
Public Trust Protest - California Sportfishing Protection Alliance
1. The CSPA desires to protest against the approval of Applications 30160, 30165, 30175 and 30260 because the proposed diversions of the underflow of the San Luis Rey River has the potential to cause significant adverse direct and cumulative impacts to the public trust rainbow trout fishery resources and other public trust resources of the San Luis Rey River watershed.
As we will show the State Water Board and its staff, a Negative Declaration should not be allowed by the Board because it would not satisfy the provisions of the California Environmental Quality Act and it Guidelines. Consequently, an Environmental Impact Report (EIR), pursuant to the requirements of CEQA and its Guidelines, must be prepared by the State Water Board (lead agency) for Applications 30160, 30165, 30175 and 30260. This EIR must evaluates all of the direct and cumulative environmental impacts to the public trust rainbow trout fishery resources of the San Luis Rey River watershed impacted from existing and proposed water projects such as Applications 30160, 30165, 30175 and 30260.
We believe the State Water Board as the lead agency has a duty to comply with CEQA and its Guidelines and prepare an adequate EIR which includes a cumulative environmental impact analysis which comply with Section 15130 of the CEQA guidelines. Said EIR must mitigate to less than significant the cumulative environmental impacts to public trust rainbow trout fishery resources of the San Luis Rey River watershed from the proposed project, existing projects, and future water projects. We reference Section 15130 of the CEQA Guidelines.
We believe the waters of the San Luis Rey River watershed are fully appropriated until the State Water Board first orders mandatory daily environmental flow requirements to protect the public trust rainbow trout fishery resources. Collectively and cumulatively, the above mentioned applicants are diverting illegally and propose to divert a collective total of 8.616 cfs or 3,392 acre-feet of water from the underflow of the San Luis Rey River.
The State Water Board must include in said EIR a detailed daily and annual hydrology analysis which shows that there will be sufficient water in the San Luis Rey River watershed to sustain at all times the public trust rainbow trout fishery resources and which allows for the daily diversion of 8.616 cfs for wet water years, normal water years, below normal water years, dry water years, and critically dry water years. Sufficient water for public trust rainbow trout fishery resources means for all life stages, including spawning flows.
Historical Review and Current Status of Rainbow Trout Fishery Resources in the Upper San Luis Rey River
2. " San Luis Rey River Drainage "
" No formal records of steelhead use were discovered for the San Luis Rey River, although steelhead were reported caught there by anglers (Hibbs 1946). The dam that forms Lake Henshaw reduces the downstream river flow, and blocks steelhead access to the uppermost portion of the drainage. The native San Luis Rey steelhead stock is extinct (Nehlsen et al. 1991), although resident rainbow trout persist in headwater tributaries such as Pala and Puama creeks (Behnke 1992; Swift et al. 1993).
The main stem San Luis Rey has received hatchery rainbow trout, as have tributaries such as Pauma Creek (CDFG, unpubl. file records; see also Behnke 1992). (Emphasis Added)
It is clear that resident and hatchery rainbow trout exist in the San Luis Rey River.
We reference " Historic Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Robert G. Titus, Postgraduate Researcher, and Don C. Erman, Professor; Department of Forestry and Resource Management, 145 Mulford Hall, University of California, Berkeley, CA 94720, USA.
No Special Treatment
3. In this proceeding, the State Water Board and its staff must not give the Applicants any special treatment. It is the duty of any applicant for a water right permit to fund and conduct all of the studies necessary to mitigate and prevent adverse impacts to the public trust resources. It is also the duty of the State Water Board and its staff to order mandatory daily flow requirements in all permits, including the proposed permits for Applications 30160, 30165, 30175 and 30260, .... that keeps in good condition at all times the rainbow trout fishery resources in the San Luis Rey River watershed.
California Environmental Quality Act and its Guidelines - Section 15130 of the CEQA Guidelines
4. The State Water Board must prepare an Environmental Impact Report for Applications 30160, 30165, 30175 and 30260. Said EIR must also contain a detailed cumulative environmental impacts analysis of the impacts to rainbow trout fishery resources and other public trust resources from these projects, other projects and future projects because of the following reasons:
a) We have explained in this public trust protest that rainbow trout fishery resources exist in the San Luis Rey River watershed.
b) Diverting the underflow of the San Luis Rey River watershed will affect and reduce surface flows. Reductions in surface flows from diverting the underflow of a river affects fish and aquatic habitat. We reference Cal-Amer diversions of the underflow on the Carmel River. We cite the Carmel River Hearing record.
The magnitude of the amount of water being proposed for appropriation (8.616 cfs - 3,392 acre-feet annually) by the applicants will significantly reduce surface flows both in the upper river reaches where the wells are located, and cumulatively in the lower San Luis Rey River watershed below the projects. (Emphasis Added)
c) Reduction in surface flows caused by authorized and unauthorized water diversions diverting surface flows and the underflow can also cause fish and wildlife species to be reduced to populations levels which have lead to species being listed for protection under the federal ESA.
d) The U.S. Fish and Wildlife Service (Ventura Office) has not prepared recovery plans to protect the federally protected fish and wildlife species in watersheds along the Southern California coast. We reference the Santa Ynez River watershed. There may be federally and state protected fish and wildlife species in the San Luis Rey River watershed.
e) Because of reduced surface flows caused by water projects, there may be adverse impacts to water quality in the San Luis Rey River watershed. Water quality and water quantity go hand in hand. Reduced flows can elevate water temperatures and harm cold water species such as rainbow trout, and increase concentrations of pollutants.
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 State Water Board must prepare an EIR for said applications as required by the California Environmental Quality Act and its Guidelines. Said EIR must contain a cumulative environment impact analysis of the direct and cumulative impacts to the public trust resources of the San Luis Rey River watershed as noted above.
The EIR Must Disclose, Evaluate and Mitigate to Less Than Significant The Following Environmental Issues
5. The EIR must disclose, evaluate and mitigate to less than significant the following environmental issues associated with said applications:
a) What was the nature and extent of the pre-project rainbow trout fishery and their habitat and aquatic resources in the upper San Luis Rey River watershed? What is the nature and extent of the rainbow trout fishery and their habitat and aquatic resources in the upper San Luis Rey River today? What are the cause(s) of the decline to the rainbow trout fishery and their habitat and aquatic resources? How does the State Water Board propose to mitigate to less than significant the adverse impacts to the rainbow trout fishery and their habitat and aquatic resources? Disclose and describe the flows necessary to protect and maintain rainbow trout populations and habitat in the river during wet, average, below average, dry years and critically dry years.
b) What type of fishery and aquatic resources should be maintained in the San Luis Rey River watershed?
c) What magnitude and duration of daily releases of water are necessary to maintain and restore the rainbow trout fishery resources in the San Luis Rey River watershed today? Does the State Water Board propose to fund and conduct scientific studies to determine the daily amount of water necessary to protect and restore the public trust rainbow trout fishery resources in the San Luis Rey River watershed?
d) What was the nature and extent of fish, aquatic and wildlife species in the San Luis Rey River watershed, which have been listed for protection under the federal 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 said applications.
e) What was the nature and extent of the pre-project riparian habitat in the San Luis Rey River watershed? What is the nature and extent of riparian habitat today? In what manner did wildlife species rely upon this riparian habitat? Has this riparian habitat been adversely impacted since the operations of the existing unauthorized wells in the watershed? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of riparian habitat in the San Luis Rey River watershed?
f) What was the nature and extent of the pre-project water quality in the San Luis Rey River watershed? What is the nature and extent of water quality today? In what manner did cold water fish species rely upon cold water? Has water quality been adversely impacted since the unauthorized uses by the applicants? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of cold water and water quality in the San Luis Rey River watershed?
Other Issues which Must be Disclosed, Discussed and Evaluated in the Environmental Impact Report
6. The EIR must disclose, discuss and evaluate the following issues:
Application 30160 - The Project - Rancho Pauma Mutual Water Company
o When did the applicant commence diverting the underflow of the San Luis Rey River. Cite the annual amount of water diverted since commencement of pumping. Cite historical records.
o How much water is used for domestic uses annually? Cite historical records.
o How much water is used for irrigation annually? Cite historical records
o Are there additional sources of water available to supply the consumptive and irrigation needs of the applicant without diverting the underflow of the San Luis Rey River? i.e. ground water, purchasing water from another water diverter, limit growth, conservation measures, etc.?
o How much of all of the water available to the applicant will be used for flood irrigating? Drip irrigating?
o How much of all of the water available to the applicant will be used for domestic uses (drinking, bathing and washing)? How much of all of the water available to the applicant will be used for exterior uses (lawns, plants, swimming pools, washing cars, boats and sidewalks)? How much of all of the water proposed for use for exterior uses could be reduced, saved, and used for releases of water for public trust resource protection and uses in the San Luis Rey River watershed?
o Is there unappropriated water available in the San Luis Rey River watershed? Cite and include a detailed hydrology analysis.
o Would public trust uses of water be adversely impacted if said applications is permitted?
o Would public trust uses of water would be adversely impacted if the applicant was not required to release daily amount of water below its diversions to protect the public trust resources of the San Luis Rey River watershed?
o What is the specific amount of water lost in the proposed and existing applicant's distribution system?
o How much water can be conserved by the applicant if it implemented conservation measures during all water year conditions?
o What other type of water rights and other diversions does the applicant have on the San Luis Rey River watershed?
o Should a fulltime measuring device be installed and maintained in the San Luis Rey River below the applicant's proposed diversions to document the effects to surface flows and monitor environmental flow requirements?
Application 30165 - The Project - Three Party Water Company
o When did the applicant commence diverting the underflow of the San Luis Rey River. Cite the annual amount of water diverted since commencement of pumping. Cite historical records.
o How much water is used for irrigation annually? Cite historical records
o Are there additional sources of water available to supply the irrigation needs of the applicant without diverting the underflow of the San Luis Rey River? i.e. ground water, purchasing water from another water diverter, limit growth, conservation measures, etc.?
o How much of all of the water available to the applicant will be used for flood irrigating? Drip irrigating? How much of all of the water proposed for use for irrigation uses could be reduced, saved, and used for releases of water for public trust resource protection and uses in the San Luis Rey River watershed?
o Is there unappropriated water available in the San Luis Rey River watershed? Cite and include a detailed hydrology analysis.
o Would public trust uses of water be adversely impacted if said applications is permitted?
o Would public trust uses of water would be adversely impacted if the applicant was not required to release daily amount of water below its diversions to protect the public trust resources of the San Luis Rey River watershed?
o What is the specific amount of water lost in the proposed and existing applicant's distribution system?
o How much water can be conserved by the applicant if it implemented conservation measures during all water year conditions?
o What other type of water rights and other diversions does the applicant have on the San Luis Rey River watershed?
o Should a fulltime measuring device be installed and maintained in the San Luis Rey River below the applicant's proposed diversions to document the effects to surface flows and monitor environmental flow requirements?
Application 30175 - The Project - James C. Roberts
o When did the applicant commence diverting the underflow of the San Luis Rey River. Cite the annual amount of water diverted since commencement of pumping. Cite historical records.
o How much water is used for irrigation annually? Cite historical records
o Are there additional sources of water available to supply the irrigation needs of the applicant without diverting the underflow of the San Luis Rey River? i.e. ground water, purchasing water from another water diverter, limit growth, conservation measures, etc.?
o How much of all of the water available to the applicant will be used for flood irrigating? Drip irrigating? How much of all of the water proposed for use for irrigation uses could be reduced, saved, and used for releases of water for public trust resource protection and uses in the San Luis Rey River watershed?
o Is there unappropriated water available in the San Luis Rey River watershed? Cite and include a detailed hydrology analysis.
o Would public trust uses of water be adversely impacted if said applications is permitted?
o Would public trust uses of water would be adversely impacted if the applicant was not required to release daily amount of water below its diversions to protect the public trust resources of the San Luis Rey River watershed?
o What is the specific amount of water lost in the proposed and existing applicant's distribution system?
o How much water can be conserved by the applicant if it implemented conservation measures during all water year conditions?
o What other type of water rights and other diversions does the applicant have on the San Luis Rey River watershed?
o Should a fulltime measuring device be installed and maintained in the San Luis Rey River below the applicant's proposed diversions to document the effects to surface flows and monitor environmental flow requirements?
Application 30260 - The Project - John A. Hankey
o When did the applicant commence diverting the underflow of the San Luis Rey River. Cite the annual amount of water diverted since commencement of pumping. Cite historical records.
o How much water is used for domestic uses annually? Cite historical records.
o How much water is used for irrigation annually? Cite historical records
o Are there additional sources of water available to supply the consumptive and irrigation needs of the applicant without diverting the underflow of the San Luis Rey River? i.e. ground water, purchasing water from another water diverter, limit growth, conservation measures, etc.?
o How much of all of the water available to the applicant will be used for flood irrigating? Drip irrigating?
o How much of all of the water available to the applicant will be used for domestic uses (drinking, bathing and washing)? How much of all of the water available to the applicant will be used for exterior uses (lawns, plants, swimming pools, washing cars, boats and sidewalks)? How much of all of the water proposed for use for exterior uses could be reduced, saved, and used for releases of water for public trust resource protection and uses in the San Luis Rey River watershed?
o Is there unappropriated water available in the San Luis Rey River watershed? Cite and include a detailed hydrology analysis.
o Would public trust uses of water be adversely impacted if said applications is permitted?
o Would public trust uses of water would be adversely impacted if the applicant was not required to release daily amount of water below its diversions to protect the public trust resources of the San Luis Rey River watershed?
o What is the specific amount of water lost in the proposed and existing applicant's distribution system?
o How much water can be conserved by the applicant if it implemented conservation measures during all water year conditions?
o What other type of water rights and other diversions does the applicant have on the San Luis Rey River watershed?
o Should a fulltime measuring device be installed and maintained in the San Luis Rey River below the applicant's proposed diversions to document the effects to surface flows and monitor environmental flow requirements?
Daily Mandatory Flow Requirements to Protect Public Trust Resources Below the Wells
7. The applicants should disclose the daily amount of water which will be bypassed below its diversions to protect the public trust resources.
UNJUST ENRICHMENT BY THE APPLICANTS
10. The public trust resources of the San Luis Rey River belong to the people of the State of California. [The public trust resources are the property of the people.] The Applicants did not have the right to degrade and extinguish the public trust resources of the San Luis River when they willfully and knowingly divert water without a valid water right. The Applicants should be required to compensate the people of the State of California for each acre-feet of water illegally diverted and used, and the Applicants should also be required to compensate the people of the State of California for the damages to the public trust resources of the San Luis Rey River from said unauthorized diversion and use of the state's water.
The CSPA Public Trust Protest is Based on the Following:
The Authority and Duty to Act and Legal Obligations of the State Water Board
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 San Luis Rey 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 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 San Luis Rey River and Bouquet Canyon Creek Watershed.
The State Water Board cannot continue to ignore its duty to enforce the law against water users on the San Luis Rey 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 San Luis Rey River.
The Right To Fish - Abundance of Public Trust Resources
The State Water Board when issuing water right permits to use the waters of the state has responsibilities for preserving and protecting the public trust resources and public interest by incorporating mandatory protection requirements into water right permits. In this situation fish resources, water quality, riparian habitat, and other public trust resources of the San Luis Rey 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 San Luis Rey River can not be enjoyed by the people unless rainbow trout, 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 San Luis Rey River watershed to protect public trust resources.
o Water Code Section 1394 authorizes the State Water Board to include a specific reservation of jurisdiction in a permit.
o Pursuant to Water Code 1258, the State Water Board may subject appropriations to such terms and conditions as it finds necessary to enforce water quality control plans.
o The State Water Board has continuing authority under Water Code Sections 100 and 275 to enforce the requirements of California Constitution Article X, Section 2 with respect to all water right holders.
o The State Water Board's regulations at 23 Cal. Code Regs. Section 784 describes the State Water Board's authority to require release of of stored water.
o Section 780 (a) sets forth the State Water Board's standard permit term reserving continuing authority. This term describes how the State Water Board might exercise its continuing authority under Water Code Sections 100 and 275, under Cal. Const. Art. X, Section 2, and under the common law public trust doctrine.
o The State Water Board has continuing authority over all water rights under the common law public trust doctrine to protect public trust uses.
o The standard permit term for continuing authority at Section 780(a) of Cal. Code Regs., Title 23, is based in part on the public trust doctrine.
Under what conditions may this protest and this complaint be disregarded and dismissed?
1. Pursuant to the requirements of the California Environmental Quality Act Act and its guidelines, the State Water Board must prepare an Environmental Impact Report to evaluate (by scientific studies) and mitigate to less than significant the adverse direct and cumulative environmental impacts to the public trust rainbow trout resources and other public trust resources of the San Luis Rey River watershed.
We have provided the State Water Board and the applicants with some of the environmental issues and other issues which must be disclosed, discussed and evaluated in the EIR.
The CSPA request timely copies of the Initial Study, Negative Declaration or Draft EIR and the opportunity to provide comments to the State Water Board. The CSPA also request the opportunity to submit scoping comments to the State Water Board for the preparation of said draft EIR. (My Emphasis)
2. The State Water Board under its public trust duties and responsibilities must prepare a Cumulative Environmental Impact Report of the entire San Luis Rey River Watershed. Said report must evaluate and mitigate to less than significant, the cumulative environmental impacts to the rainbow trout fishery resources and other public trust resources such as southern steelhead of the San Luis Rey River watershed from existing unauthorized and authorized diversions. Upon completion of said report, the State Water Board must re-visit and re-open all water right permits in the watershed and order the amount of water which must be released daily from the diversions to the Pacific Ocean to keep the fish in good condition at all times as required by state law and the Board's own regulations.
3. We are requesting the State Water Board to have the applicants cease diverting the state's water for irrigation purposes until they have secured water right permits from the State Water Board.
4. The State Water Board must levy fines against the Applicants for each day they diverted and used the state's water without a valid water right permit. i.e. $500 per day pursuant to Section 1052 of the California Water Code.
5. Upon the completion of the final adequate CEQA document(s), and in order to satisfy the CSPA due process rights, we are requesting a hearing before the State Water Board on said applications.
6. We reserve the right to amend this public trust protest.
A true copy of this protest has been served upon Walter W. Bourez, Jr. on behalf of the applicants 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 or 916-836-0338
Fax: 916-283-5017
Date: August 3, 1994
Certificate of Service
Ed Anton, Chief
Division of Water Rights
State Water Resources Control Board
(Original)
Rancho Pauma Mutual Water Company
Three Party Water Company
James C. Roberts, Inc.
John A. Hankey
c/o Water W. Bourez, Jr.
5159 Kipp Way
Carmichael, CA 95608
Mr. Jim Crenshaw, President
Bill Jennings, Chairman
Mike Jackson, Counsel
Tom Gregory, Pari Legal
David Heaslett, Counsel
California Sportfishing Protection Alliance
Boyd Gibbons, Director
c/o John Turner, Chief, Environmental Services
Department of Fish and Game
Interested Parties