State of California
Before the State Water Resources Control Board
Santa Clarita Water Company, Applicant
Application 29898
Santa Clara River Underflow and Bouquet Canyon Creek
Underflow thence Pacific Ocean
Application for Water Right To Appropriate Water
Public Trust Protest and Public Trust Complaint
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 a notice of July 22, 1994, relative to the above mentioned application for water right filed by the Santa Clarita Water Company.
According to the State Water Resources Control Board and the Division of Water Rights notice of July 22, 1994 regarding Application 29898, the following is described and disclosed:
Application 29898 - The Project
The Santa Clarita Water Company seeks a right to directly divert 30 cfs of water, not to exceed 15,000 acre-feet of water per year from the underflow of the Santa Clara River and the underflow of the Bouquet Canyon Creek. Bouquet Canyon Creek is a tributary to the Santa Clara River. Water will be diverted for municipal purposes from January 1 to December 31 of each year by pumping from a series of 13 existing wells. Well pumps range from 75 to 150 horsepower. Three of the wells lie in the lower 3 miles segment of Bouquet Canyon Creek. Ten of the wells are located adjacent to the Santa Clara River along a seven mile reach from near the stadium at Bonnelli Ranch to near San Canyon Road. The 40-acre subdivision within which the individual wells are located are describe in the Application Information section of the Division's notice. Water will be used within the franchised area of the Santa Clarita Water Company.
(My Emphasis)
We reference the information and data in the Division's Notice of July 22, 1994 for said water right application.
Environmental Information - Application 29898
According to the notice of July 22, 1994, and in accordance with the California Environmental Quality Act (CEQA) and its Guidelines, the State Water Resources Control Board is the lead agency. The Board will be requiring the Santa Clarita Water Company to prepare an Initial Study to determine whether a Negative Declaration is appropriate or whether an Environmental Impact Report will be necessary. As the lead agency the State Water Board is required to insure that the environmental document(s) prepared by the Santa Clarita Water District is in compliance with the California Environmental Quality Act and its Guidelines.
Protests - Application 29898
According to the notice of July 22, 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 August 11, 1994, or August 31, 1993 or September 22, 1994, however public trust complaints can be filed at any time. We are unclear why the Division cited 20, 40 or 60 days for the filing of said protests, however the Division's notice did not disclose the reasons for the shorten periods of 20 and 40 days.
We believe given the circumstances as we will show you, protests based on environmental grounds should be given 60 days because that is the standard period of time the State Water Board has given protestants in other water right applications notice by the Division.
Statement of Reasons and Facts For Protest and Complaint
Public Trust Protest and Public Trust Complaint - California Sportfishing Protection Alliance
1. The CSPA desires to protest against the approval of Application 29898 because the proposed diversions of the underflow of the Santa Clara River and Bouquet Canyon Creek will continue to cause significant adverse cumulative impacts to the public trust southern steelhead resources of the lower Santa Clara River, and direct and cumulative impacts to the public trust resources in the upper Santa Clara River and in Bouquet Canyon Creek.
This public trust protest is being filed jointly with a public trust complaint against the Santa Clarita Water Company and other permittees and licensees because of the cumulative environmental impacts to the public trust southern steelhead resources of the Santa Clara River.
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 Santa Clarita Water Company for Application 29898, and also for the unauthorized use of the state's water. This EIR must evaluates all of the direct and cumulative environmental impacts to the public trust resources of the Santa Clara River and Bouquet Canyon Creek impacted from the operation of: (a) Wells located on Bouquet Canyon; (b) Wells located on the Santa Clara River; and other water projects in the Santa Clara River watershed from the proposed points of diversions to the Pacific Ocean.
We believe the State Water Board as the lead agency has a duty to comply with CEQA and its Guidelines and require that the Santa Clarita Water Company prepares 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 southern steelhead resources of the lower Santa Clara 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 Santa Clara River watershed are fully appropriated until the State Water Board first orders mandatory daily environmental flow requirements to protect the public trust southern steelhead resources from the Santa Clarita Water Company's wells to the Pacific Ocean. Water must flow from the project area to the Pacific Ocean so that the southern steelhead are protected and are not jeopardized.
State Water Board's Notice of Application 29815 - July 22, 1994
2. The Division's notice did not disclose whether the Santa Clarita Water Company was diverting the state's water in the Santa Clara River watershed without a valid water right permit. In the event the Santa Clarita Water Company was diverting the water of the Santa Clara River watershed without a valid water right permit, that is the unauthorized use of the state's water.
Historical Review and Current Status of Southern Steelhead in the Upper and Lower Santa Clara River and it Tributaries
3. " Santa Clara River Headwater Tributaries in Los Angeles County. "
" CDFG records show that hatchery rainbow trout were stocked and present in the upper sections of Bouquet Canyon Creek during the 1940's and 1950's, but there was no mention of an historical steelhead run. The dam creating Bouquet Reservoir would now block steelhead access to the most upstream portion of this stream." (Emphasis Added)
The impacts to the public trust rainbow trout resources (all life stages and habitat) of Bouquet Canyon Creek from the unauthorized use of the state's water by Santa Clarita Water Company, and also Application 29898, must be evaluated and mitigated in the EIR. The Santa Clarita Water Company must be required to bypass water below each well to protect and restore rainbow trout.
" No O. mykiss [steelhead] were seen in Elizabeth Lake Canyon Creek in a 1948 CDFG survey, and there was no mention of an historical steelhead run. Steelhead access to the upper portion of this stream would now be blocked by the dam at Castaic Lake."
" Fish Canyon Creek is a tributary to Castaic Creek, above Castaic Lake. This is a highly intermitted stream for which there are hatchery trout stocking records dating back to 1945 and 1948. There is no mention of an steelhead run in the CDFG file. Steelhead access to this stream would now be blocked by the dam at Castaic Lake. "
" San Francisquito Canyon and Soledad Canyon creeks are two streams for which there are CDFG records for rainbow trout presence and/or stocking dating back to c. 1930, but for which there are no mention of historical steelhead runs. Bell (1978) found no O.mykiss in these streams during a seining survey. "
" Santa Clara River Drainage, including Portions in Los Angeles County "
" The Santa Clara River system once supported a popular winter steelhead sport fishery based on its apparently "large and consistent runs" (Hubbs 1946; see also Kreider 1948). The average annual run in the Santa Clara may have been on the order of about 9,000 adult steelhead (Moore 1980a). Steelhead migrate upstream through the lower Santa Clara River to reach spawning grounds in Santa Paula, Sespe, and Piru creeks, and perhaps in other tributaries and reaches of the upper Santa Clara itself (see below). However, the steelhead stock has declined precipitously since the mid-1950's, primarily due to an increase in surface water diversion in the lower Santa Clara by the United Water Conservation District. The unscreened diversion near Saticoy has historically blocked upstream migration of adult steelhead, entrained emigrating smolts into percolation basins, or eliminated fish movements to and from the ocean altogether by dewatering the river channel during critical migration periods. The current diversion structure, the Vern Freeman Diversion Dam, was equiped with a fish ladder and intake screens in 1989 to enhance fish passage, although the effectiveness of these features remain to be evaluated. The steelhead decline has also been attributed, in part, to altered flow pattern and blocked access to historic spawning grounds by upstream diversions dams (see below). Nehlsen et al. (1991) listed the Santa Clara River steelhead stock as having a high risk of extinction. " (Emphasis Added)
Reduction in surface flows from diverting the underflow of the upper Santa Clara River in the amounts under Application 29898 and the unauthorized diversions by Santa Clarita Water Company, can significantly reduce surface flows in the lower Santa Clara River with resulting cumulative environmental impacts to the public trust steelhead trout which exist and migrate in the lower river, and also exist in the Santa Clara River lagoon.
It is also very clear that water projects (dams, diversions and wells) in the Santa Clara River watershed have had cumulative environmental impacts to public trust southern steelhead populations levels and habitat.
" The following is a chronological rundown of information from CDFG files regarding the presence or stocking of steelhead and rainbow trout in the main stem Santa Clara River. Early CDFG records showed that 5,000 juvenile steelhead were stocked in 1938 in the "River of Doubt" area, and 21,600 were planted in the lagoon in 1944, the latter being steelhead which were rescued from the Santa Ynez River. In a CDFG survey in the River of Doubt area in 1949, no rainbow trout were found despite stocking of hatchery rainbows in 1939 and during 1942-48. The main stem river was apparently not surveyed again for O. mykiss for many years. Bell (1978) found no O. mykiss by seining in the main stem Santa Clara from its mouth, although hatchery escapees of rainbow trout which live in the tailwater of the Filmore Fish hatchery were observed. Areta and Willsrud (1980) also captured no O. mykiss by seining the main stem during 8-24 May 1980. In both of these surveys, most of the fishes captured reflected an assemblage of warm water and euryhaline species. "
" In a two-year CDFG study of steelhead in the lower Santa Clara River system, Puckett and Villa (1985) reported the steelhead captured presented in Table 3. In addition, 25 other O. mykiss were captured during the study ranging in fork length from 20.3 to 47.7 cm, and in age from 1 to 3 years old. Some of these fish may have been pre-smolted steelhead, and other resident rainbow trout. No emigrating smolts were captured in a fyke net set in the Vern Freeman Diversion canal at Saticoy during both years. Eleven other species of fish were captured during the study, including both emigrating juvenile and spent adult Pacific lampreys (Lampetra tridentata). Most adult lampreys were captured at the Sespe Creek weir although a few were also caught at Saticoy. Puckett and Villa (1985) concluded that the lower Santa Clara River served primarily as a migration corridor for both adult and juvenile steelhead, and was less important as a spawning and rearing area, with the exception of the estuary as potential rearing habitat. Fish movement, both upstream and downstream, were coincident with flow pulses following major storm events. " (See reference)
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.
State Water Resources Control Board - Background - Decision 1586 and Water Right Order 87-8
4. In 1982, the State Water Board adopted Decision 1586 approving the appropriation of water from the Santa Clara River and its tributaries by United Water Conservation District (UWCD) and the California Department of Water Resources. The application was protested by the California Department of Fish and Game (DFG) on the basis that it would irreparably harm the southern steelhead trout resources of the Santa Clara River. Without ordering sufficient and adequate flows at all times to keep in good condition southern steelhead populations and habitat in the Santa Clara River and its tributaries as required by Fish and Game Code 5937, the State Water Board in Decision 1586 required that a steelhead study be preformed and reserved jurisdiction to adopt new permit conditions upon the completion of the study.
In Water Right Order 87-8, the State Water Board found that the required steelhead study demonstrated the continued existence of the southern steelhead in the river and ordered the UWCD to construct and operate a fish screen and fishway to prevent the entrainment of juveniles into the diversion canal and to facilitate upstream migration of adults. The State Water Board also ordered a bypass requirement of 40 cfs for 48 hours to facilitate upstream migration of southern steelhead when the flow in the river subsides to 415 cfs. The Vern Freeman Diversion Facility, with associated fish ladder and screens, became operational and began diverting water in March 1991.
The State Water Board also stated in Water Right Order 87-8 that the bypass requirement and the requirement to operate the fish screen " shall lapse seven [7] years following completion of the proposed project....unless the California Department of Fish and Game presents to the State Water Board the results of a study or other competent evidence that the Santa Clara River supports a viable steelhead population ".
It is clear that the State Water Board was bound and determined to extinguish the southern steelhead of the Santa Clara River when it again requested another study and supporting evidence that southern steelhead continued to exist in the river. Further, Water Right Order 87-8 violated Fish and Game Code 5937 and Section 782; California Code of Regulations; Title 23; when the State Water Board stated in the order that " shall lapse seven [7] years following completion of the proposed project....unless the California Department of Fish and Game presents to the State Water Board the results of a study or other competent evidence that the Santa Clara River supports a viable steelhead population ".
With the construction of the fishway at the Vern Freeman Diversion Facility [Dam], southern steelhead access to Sespe Creek should be restored. Sespe Creek is the largest tributary to the Santa Clara River. Sespe Creek has excellent steelhead habitat and is well protected in National Forest and the Sespe Condor Sanctuary lands. It was estimated by the DFG that Sespe Creek has about 47 miles of southern steelhead spawning and rearing habitat, about 87% of what the stream had historically.
" ....we do not imply that it is evil to enjoy lox, calamari, and caviar, for carnivory is not inherently immoral. It is only excess that is offensive to nature. And when we destroy the ability of species to survive and to maintain their ecological position, when we destroy their habitats and their capacity to evolve, that is excess. " (Nelson and Soule, 1987)
We reference the Draft Steelhead Management Plan for California; Department of Fish and Game; April, 1994; by Dennis McEwan, Associate Fishery Biologist and Terry A. Jackson, Associate Fishery Biologist, Inland Fisheries Division, Sacramento.
No Special Treatment - Duties of the Santa Clarita Water Company and the State Water Board in this Proceeding
5. While the State Water Board placed the burden of proof on the DFG and not on the UWCD in Decision 1586 and Water Right Order 87-8, the U.S. Army Corps of Engineers acted properly by placing the burden on the UWCD (water user) to monitor the fish screen and fishway at the Van Freeman Diversion Dam.
Special Condition B of the UWCD's Corp 404 Permit required the UWCD to " to evaluate the mitigation features of the (diversion) to determine their effectiveness at accomplishing their designated purpose.... for a period of five years after the project is completed ".
Effective monitoring of the fishway and fish screen by UWCD has not taken place, even though the diversion facility has been operational for three years. The opportunities to obtain valuable southern steelhead resources information has been lost willfully and knowingly by a water right permittee (UWCD).
In this proceeding, the State Water Board and its staff must not give the Santa Clarita Water Company 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 permit for Application 29898, .... that keeps in good condition at all times the southern steelhead resources in the lower Santa Clara River, and the public trust resources in the upper river and also in Bouquet Canyon Creek.
California Environmental Quality Act and its Guidelines - Section 15130 of the CEQA Guidelines
6. The Santa Clarita Water Company must be required by the State Water Board to prepare an Environmental Impact Report for Application 29898. Said EIR must also contain a detailed cumulative environmental impacts analysis of the impacts to southern steelhead trout and other public trust resources from this project, other projects, and future projects because of the following reasons:
a) We have explained in this public trust protest and public trust complaint that the State Water Board abused its discretion in Decision 1586 and Water Right Order 87-8. That showing clearly demonstrates cumulative environmental impacts to southern steelhead resources in the lower Santa Clara River from at least one water project, and that southern steelhead resources exist in the lower river and its tributaries.
b) Diverting the underflow of the Santa Clara 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 (30 cfs - 15,000 acre-feet annually) will significantly reduce surface flows both in the upper river reaches where the proposed wells are located, and cumulatively in the lower Santa Clara River watershed. (Emphasis Added) Significant reductions to surface flows in the lower Santa Clara River would impact southern steelhead from reaching spawning habitat and rearing habitat, as well as flows necessary for upstream and downstream migration of southern steelhead resources from and to the Pacific Ocean. Also, significant reductions in flows (fresh water) would impact the southern steelhead habitat in the Santa Clara River lagoon.
c) The lower reaches of the Santa Clara River watershed sustains public trust southern steelhead populations and habitat, and other public trust fish and wildlife resources. Significant reductions in surface flows can adversely impact and/or extinguish public trust southern steelhead and its habitat and other public trust resources. We reference the Santa Ynez River Hearing record in CSPA v. U.S. Bureau of Reclamation (CSPA Complaint) and numerous letters to the Bureau, DFG, USFWS, USNMFS and Water Districts (Cachuma Project) from the CSPA.
As a result of the Santa Ynez River Hearing, the State Water Board ordered a cumulative environmental impact analysis of the entire Santa Ynez River watershed. However, the State Water Board did not order mandatory daily flows from Bradbury Dam as required by Fish and Game Code 5937, and Section 782; California Code of Regulations; Title 23.
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. The southern steelhead are presently being considered for listing by the USNMFS. We reference the petition for listing filed by the CSPA and other parties in the states of California, Oregon, Washington and Idaho. We reference the following; (a) southern steelhead in the Carmel River; (b) southern steelhead in the Santa Ynez River; (c) southern steelhead in the Salinas River; (d) southern steelhead in Old Creek; (e) southern steelhead in Arroyo Grande Creek; (f) southern steelhead in Santa Clara River; and (f) etc, etc, etc.
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 Santa Clara River watershed.
e) Because of reduced surface flows caused by water projects, there may be adverse impacts to water quality in the Santa Clara River watershed. Water quality and water quantity go hand in hand. Reduced flows can elevate water temperatures and harm cold water species, and increase concentrations of pollutants.
f) As a condition to this public trust protest and public trust complaint, the State Water Board needs to re-visit water right permits and all diversions in the Santa Clara River and its tributaries in conjunction with Application 29898. Fortunately, the southern steelhead resources of the Santa Clara River have not been extinguished yet by water projects. Consequently, the State Water Board, as the lead agency for Application 29898, must prepare a cumulative environmental impact report of the entire Santa Clara River watershed and must determine first the amount of water necessary to sustain the southern steelhead resources and other public trust resources. Upon that finding, the State Water Board will know the amount of water which can be appropriated by the Santa Clarita Water Company under Application 29898, and also the amount of water which can be diverted by other permitted water rights.
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 Santa Clarita Water Company must prepare an EIR for Application 29898 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 Santa Clara River and Bouquet Canyon Creek affected by the unauthorized use of the state's water by the Santa Clarita Water Company as a result of the operation of the existing wells, and the operations of the wells under Application 29898.
The EIR Must Disclose, Evaluate and Mitigate to Less Than Significant The Following Environmental Issues
7. The EIR must disclose, evaluate and mitigate to less than significant the following environmental issues associated with Application 29898 and the operations of all of the wells:
a) What was the nature and extent of the pre-project rainbow trout fishery and their habitat and aquatic resources in the upper Santa Clara River and in Bouquet Canyon Creek? What is the nature and extent of the rainbow trout fishery and their habitat and aquatic resources in the upper Santa Clara River and also in Bouquet Canyon Creek today? What are the cause(s) of the decline to the rainbow trout fishery and their habitat and aquatic resources? How does the SCWC propose to mitigate to less than significant the adverse impacts to the rainbow trout fishery and their habitat and aquatic resources?
b) What are the effects to southern steelhead in the lower Santa Clara River resulting from reduced flows caused by Application 29898 and the unauthorized use of the state's water by Santa Clarita Water Company? Disclose and describe the flows necessary to protect and maintain southern steelhead habitat in the lower river during wet, average, below average, dry and critically years.
c) What are the effects to southern steelhead in the Santa Clara River lagoon resulting from reduced flows (fresh water) caused by Application 29898 and the unauthorized use of the state's water by Santa Clarita Water Company? Disclose and describe the flows (fresh water) necessary to protect and maintain southern steelhead habitat in the Santa Clara River lagoon during wet, average, below average, dry and critically years.
d) What type of fishery and aquatic resources should be maintained in the upper Santa Clara River and in Bouquet Canyon Creek?
e) What magnitude and duration of daily releases of water are necessary to maintain and restore the fishery and aquatic resources in the upper Santa Clara River, lower Santa Clara River, and in Bouquet Canyon Creek today? Does the SCWC propose to fund and conduct scientific studies to determine the daily amount of water necessary to protect and restore the public trust resources in the upper and lower Santa Clara River and in Bouquet Canyon Creek?
f) What was the nature and extent of fish, aquatic and wildlife species in the Santa Clara River and in Bouquet Canyon Creek, 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 SCWC's diversions?
g) What was the nature and extent of the pre-project riparian habitat in the upper Santa Clara River and in Bouquet Canyon Creek? In what manner did wildlife species rely upon this riparian habitat? Has this riparian habitat been adversely impacted since the project operations? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of riparian habitat in the Upper Santa Clara River and in Bouquet Canyon Creek?
h) What was the nature and extent of the pre-project water quality in the upper Santa Clara River and in Bouquet Canyon Creek? In what manner did cold water fish species rely upon cold water? Has water quality been adversely impacted since the project operations? What magnitude and duration of daily releases of water are necessary to maintain adequate levels of cold water and water quality in the Upper Santa Clara River and in Bouquet Canyon Creek?
Other Issues which Must be Disclosed, Discussed and Evaluated in the Environmental Impact Report
8. The EIR must disclose, discuss and evaluate the following issues:
o Are there additional sources of water available to supply the consumptive needs of the SCWA without diverting water the underflow of the Santa Clara River and Bouquet Canyon Creek? i.e. ground water.
o How much of all of the water available to SCWC is used for domestic uses (drinking, bathing and washing)? How much of all of the water available to the SCWA is used for exterior uses (lawns, plants, swimming pools, washing cars, boats and sidewalks)? How much of all of the water used for exterior uses could be reduced, saved, and used for releases of water for public trust resource protection and uses in the upper Santa Clara River, in Bouquet Canyon Creek, and also for the lower Santa Clara River?
o What is the basis of water rights for the existing well diversions of the underflow of the Santa Clara River and Bouquet Canyon Creek?
o Is there unappropriated water available in the Santa Clara River and in Bouquet Canyon Creek?
o Would public trust uses of water be adversely impacted if Application 29898 was permitted?
o Would public trust uses of water be adversely impacted if SCWC was not required to release daily amount of water below each well to protect the public trust resources of the upper and lower Santa Clara River and Bouquet Canyon Creek?
o What is the specific amount of water lost in the SCWC distribution system?
o How much water can be conserved by SCWC if it implemented conservation measures during all water year conditions?
o What is the total amount of unauthorized water diverted daily and annually without a valid water right permit from the Santa Clara River, and also from Bouquet Canyon Creek?
o What type of compensation will SCWC be required to fund for the unauthorized use of the state's water? Will fines be levied by the State Water Board for the unauthorized use of the state's water? If not, why not?
o Should fulltime measuring devices be installed and maintained in the Santa Clara River and in Bouquet Canyon Creek below each well to document the effects to surface flows and monitor environmental flow requirements?
Daily Mandatory Flow Requirements to Protect Public Trust Resources Below the Wells
9. The SCWC should disclose the daily amount of water bypassed below each well to protect the public trust resources below each well.
UNJUST ENRICHMENT BY SANTA CLARITA WATER COMPANY
10. The public trust resources of the Santa Clara River and Bouquet Canyon Creek belong to the people of the State of California. [The public trust resources are the property of the people.] The SCWA did not have the right to degrade and extinguish the public trust resources of the Santa Clara River and Bouquet Canyon Creek when it willfully and knowingly divert water without a valid water right. SCWC should be required to compensate the people of the State of California for each acre-feet of water illegally diverted and used, and SCWC should also be required to compensate the people of the State of California for the damages to the public trust resources of the Santa Clara River and Bouquet Canyon Creek from said unauthorized diversion and use of the state's water.
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
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 Santa Clara River and Bouquet Canyon Creek Watershed.
The State Water Board has the continuing authority over all water rights under the common law public trust doctrine to protect public trust resources. [See National Audubon Society v. Superior Court of Alpine County (1983) 33 Cal.3d. 419, 189 Cal. Rptr. 346.]
The public ownership of the State's waters and water courses has its roots in Roman Law of the 6th Century A.D. The public ownership of fish and wildlife also has its roots in ancient Roman Law from the 6th Century A,D. [See Althaus 1987] This fish and wildlife (includes shellfish, birds, mammals, and other classes of wild animals) in their natural state can be regarded as property belonging to the people, with governmental agencies such as the State Water Board 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 Santa Clara 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 Santa Clara River and Bouquet Canyon Creek 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 Santa Clara River and Bouquet Canyon Creek 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 Santa Clara River and Bouquet Canyon Creek 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 Santa Clara River and Bouquet Canyon Creek can not be enjoyed by the people unless steelhead trout and salmon are in sufficient abundance to be harvested and enjoyed.
The continued existence, renewability and abundance of such resources in their broadest context, the integrity of water as an aquatic environment upon which such resources depend, rests upon the State Water Board.
Water Rights - State Water Board - Authority to Act
The State Water Board has several sources of authority to modify water right permits and to require water in the Santa Clara River and Bouquet Canyon Creek 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 Santa Clarita Water Company must be required by the State Water Board to 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 resources of the upper and lower Santa Clara River and Bouquet Canyon Creek.
We have provided Santa Clarita Water Company and the State Water Board 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 Santa Clarita Water Company and the State Water Board. The CSPA also request the opportunity to submit scoping comments to the State Water Board and Santa Clarita Water Company 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 Santa Clara River Watershed. Said report must evaluate and mitigate to less than significant, the cumulative environmental impacts to the southern steelhead resources and other public trust resources of the Santa Clara River watershed from existing authorized and unauthorized water 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. The State Water Board must require Santa Clarita Water Company to cease diverting the state's water at their wells until the SCWC has obtained a water right permit from the State Water Board for said well diversions. The State Water Board must order fines for each day of unauthorized diversion and use in accordance with Section 1052 of the California Water Code.
4. We reserve the right before, during, and after this proceeding to take court actions at any time against the Santa Clarita Water Company for unjust enrichment causes.
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.
6. We reserve the right to amend this public trust protest and public trust complaint.
A true copy of this protest has been served upon Santa Clarita Water Company 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 1, 1994
Certificate of Service
John Caffrey, Chairman
State Water Resources Control Board
Ed Anton, Chief
Division of Water Rights
State Water Resources Control Board
(Original)
Santa Clarita Water Company
c/o Scott Slater - Hatch & Parent
21 East Carrillo
Santa Barbara, CA 93101
Mr. Jim Crenshaw, President
Bill Jennings, Chairman
Mike Jackson
Tom Gregory
David Heaslett
California Sportfishing Protection Alliance
Boyd Gibbons, Director
c/o John Turner, Chief, Environmental Services
Department of Fish and Game
Wayne White, State Supervisor
c/o Craig Faanes, Field Supervisor
Ventura Office
U.S. Fish and Wildlife Service
Interested Parties