CALIFORNIA SPORTFISHING PROTECTION ALLIANCE

P.O. BOX 357

QUINCY, CALIFORNIA 95971

Mr. Edward Anton, Chief February 21, 1995

Division of Water Rights

State Water Resources Control Board

P.O. Box 2000

Sacramento, CA 95812-2000

Re: Application No. 29815; City of Santa Barbara, Applicant; Devil's Canyon Creek tributary to Santa Ynez River; CSPA Response to City of Santa Barbara's Answer to CSPA Protest.

Dear Mr. Anton:

This is in response to the City of Santa Barbara's Answer of February 3, 1995 to the protest by the California Sportfishing Protection Alliance protest against Application No. 29815.

The City of Santa Barbara made the following statement:

" The Santa Barbara City Counsel authorized the filing of this Application and Application No. 28687 on the express condition that the filing of the Applications did not relinquish, waive, or affect the City's existing pre-1914 and prescriptive rights to continue to divert, store, and distribute for beneficial municipal uses the water that is the subject of the Applications." We reference pages 1 and 2 of the City of Santa Barbara's Answer to the CSPA protest dated February 3, 1995.

" Appropriation under a permit pursuant to these Applications would be subordinate to and would respect valid prior water rights. The City contends that its rights to divert from Devil's Canyon Creek are prior to all other rights which might be asserted in this proceeding, because it holds pre-1914 rights and its diversions have occurred continuously since 1911." We reference page 2 of the City of Santa Barbara's Answer to the CSPA protest dated February 3, 1995.

Pre-1914 Water Rights

Prior to 1872 appropriative water rights could be acquired by simply taking and beneficially using water. In 1872 Sections 1410 through 1422 of the Civil Code were enacted. These sections established a permissive procedure for perfecting an appropriation of water. Provision was made for posting a notice of appropriation at the proposed point of diversion and recording a copy thereof with the County Recorder.

Once acquired, an appropriative right can be maintained only by continuous beneficial use of water. Therefore, regardless of the amount claimed in the original notice of appropriation, or at the time diversion and use began, the amount which can now be rightfully claimed under an appropriative right initiated prior to December 19, 1914, has become fixed by actual beneficial use, both as to the amount and season of diversion. (My Emphasis)

In order to now successfully assert an appropriative right which was initiated prior to December 19, 1914, where the validity of the right is disputed, evidence is required of both the original appropriation and of subsequent maintenance of the right by continuous and diligent application of the water to beneficial use. (My Emphasis) We reference Section 1202 (b) and 1240 of the California Water Code.

The City of Santa Barbara's Claim of Pre-1914 Water Rights to the Waters of Devil's Canyon Creek is False

The City of Santa Barbara's Answer concerning its claim of pre-1914 water rights to Devil's Canyon Creek is false. The City provides no evidence concerning the claimed pre-1914 water right nor does the City provide the State Water Board with specific evidence regarding the specific amount of water diverted and used continuously, and the specific season of the diversion from Devils Canyon Creek.

The City's claim that they have pre-1914 water rights to divert and use the waters of Devil's Canyon Creek is false for the following reason:

In the Gin Chow Decision the following was stated:

" In April, 1904, the City of Santa Barbara acquired what is known as the Gibraltar dam site, across the Santa Ynez River; also rights of way in the Santa Ynez Mountains for the purpose of constructing a tunnel, called the Mission tunnel, which would connect the reservoir created by the proposed dam with the water distributing system of the city. In October, 1904, the city caused a notice of appropriation to be posted on the banks of the Santa Ynez River, whereby it claimed the right to appropriate, divert and take 250,000 miners inches of water measured under a four-inch pressure, the same to be applied in supplying the area in and near said city and the inhabitants thereof with water. This notice was duly recorded. Thereafter the Mission tunnel was bored and was completed in 1911. The Gibraltar dam was completed in 1920 and during each year thereafter and until the commencement of this action (August 6, 1928), water has been impounded in said dam, diverted therefrom and devoted to a public use within the limits of the city to the maximum annual amount of 4,189 acre-feet. The maximum capacity of the Gibraltar dam is 15,374 acre-feet." We reference Gin S. Chow v. City of Santa Barbara et al.; Cal Supreme Ct; April 1933; L.A. No 28334; at pages 677 and 678.

Further the Gin Chow Decision stated that " The drainage area of the Santa Ynez River and its tributaries is approximately 900 square miles, of which 219 square miles are above the Gibraltar dam, and 576 square miles of which lie between Gibraltar dam and Robinson's bridge, which bridge is below Gibraltar dam and thirteen miles easterly from the mouth of the Santa Ynez River. The tributaries of the river are four creeks entering it above Gibraltar dam and nine entering it at distances from fourteen miles to fifty miles above the ocean." We reference Gin S. Chow v. City of Santa Barbara et al.; Cal Supreme Ct; April 1933; L.A. No 28334; at page 679. (Emphasis Added)

The Gin Chow Decision further stated that " The defendants claim the right as appropriators to impound and divert water from the watershed of the Santa Ynez River at points at or above the Gibraltar dam, to the capacity of said dam by the city, and to the extent of 2,000 acre-feet per annum by the district. " We reference Gin S. Chow v. City of Santa Barbara et al.; Cal Supreme Ct; April 1933; L.A. No 28334; at page 679. (Emphasis Added)

The language in the Gin Chow as shown above does not mention the claimed pre-1914 water rights to Devil's Canyon Creek. The language clearly shows the claimed pre-1914 water right is at or above Gibraltar dam. Devil's Canyon Creek is a short distance below Gibraltar dam. Surely had the City had pre-1914 water rights to Devil's Canyon Creek it would have been included in the Gin Chow Decision. It was not and consequently the City claim of a pre-1914 water right to the waters of Devil's Canyon Creek is false.

We are requesting the Division of Water Rights to require the City of Santa Barbara to submit to the Division and CSPA the following evidence:

a) A copy of the notice of appropriation which was recorded with the County Recorder for Devil's Canyon Creek.

b) The specific (monthly/annual/cfs/acre-feet) amount of water diverted and used, and the season of diversion prior to December 19, 1914 from Devil's Canyon Creek.

c) The specific (monthly/annual/cfs/acre-feet) amount of water diverted and used, and the season of diversion from December 20, 1914 to the present period from Devil's Canyon Creek.

The City of Santa Barbara's Claim of Prescriptive Water Rights to the Waters of Devil's Canyon Creek is False

The City in its answer stated that the Santa Barbara City Counsel authorized the filing of this Application and Application No. 28687 on the express condition that the filing of the Applications did not relinquish, waive, or affect the City's existing pre-1914 and prescriptive rights to continue to divert, store, and distribute for beneficial municipal uses the water that is the subject of the Applications.We reference pages 1 and 2 of the City of Santa Barbara's Answer to the CSPA protest dated February 3, 1995.

The City claim of a prescriptive right to the diversion and use of the waters of Devil's Canyon Creek is false for the following reasons:

In the Shirokow Decision [People v. Shirokow; 26 Cal.3d 301; 162 Cal.Rptr. 30, 605 P.2d 859] the following was stated:

" The trial court denied the state's request for injunctive relief against a property owner who was diverting water from a small stream by impounding it behind a dam. Defendant had not obtained a permit from the Water Resources Control Board. The court ruled that defendant had perfected a prescriptive right which was good as against the state. (Superior Court of Madera County, No. 20934, Charles W. Jennings, Judge) " We reference People v. Shirokow; (1980) 26 Cal.3d 301; 162 Cal.Rptr. 30, 605 P.2d 859; at page 301.)

" The Supreme Court reversed, holding that the water diverted by defendant was water subject to appropriation under the procedures set forth in Wat. Code Section 1200 et seq., and that the diversion was therefore a trespass enjoinable under Wat. Code Section 1052. The court held that the statutory permit procedure constitutes the exclusive method of acquiring the right to appropriate water subject to statutes. The court further held that defendant's claim of prescriptive right would fail even if, arguendo, defendant were not required to comply with appropriation procedures, since public rights cannot be lost by prescription and defendant has failed to show his diversion was hostile to the interests of any downstream user." We reference People v. Shirokow; (1980) 26 Cal.3d 301; 162 Cal.Rptr. 30, 605 P.2d 859; at page 301. (Emphasis Added)

Consequently, as a result of the Shirokow Decision, the City claim of a prescriptive right to the waters of Devil's Canyon Creek is false and not valid.

Unauthorized Use of the State's Water by the City of Santa Barbara at Devil's Canyon Creek

The City has filed two water right applications with the State Water Board to obtain the right to divert and use the waters of Devil's Canyon Creek. Based on the CSPA showing in this letter, the City does not have water rights to divert and use the waters of Devil's Canyon Creek.

Section 1052 of the California Water Code provides: " The diversion or use of water subject to the provisions of this division [division 2] other than authorized in this division is a trespass, and the board [State Water Resources Control Board] may institute.....appropriate action to have such trespass enjoined."

The City's diversion on Devil's Canyon Creek without first obtaining a water right permit from the Board constitutes a trespass within the meaning of Section 1052.

We are requesting the Board to order the City to cease diverting the waters of Devil's Canyon Creek until the City acquires a water right permit from the Board. We also believe the diversion and use of the waters of Devil's Canyon Creek by the City constitutes a trespass and "unjust enrichment". We reference Santa Clarita Water Company v. Charles J. Lyons; 161 Cal.App.3d 450; 207 Cal. Rptr. 698 [October 1980].

The City of Santa Barbara's Water Right Applications are subject to the California Environmental Quality Act and its Guidelines

The City of Santa Barbara made the following statement:

" The diversions contemplated in this Application would not exceed the maximum amount previously diverted. Moreover, the City contends that the diversion works are an "on-going project" that is exempt from CEQA under the terms of the statute and statutory exemptions discussed in CEQA guidelines. " We reference page 4 of the City of Santa Barbara's Answer to the CSPA protest dated February 3, 1995.

Further, the City of Santa Barbara made the following statement:

" Protestant CalSPA claims, without any factual support, that the diversion will result in significant adverse environmental and public trust resource impacts. Historically, this claim makes no sense; this diversion has occurred since before Gibraltar, and no change is contemplated as a result of the issuance of a permit. Hydrogeologically, it makes no sense; two-thirds of the river's watershed is below the diversion, and Gibraltar Dam spills, which occur two out of every three years, overwhelm the flow in this creek. " We reference page 2 of the City of Santa Barbara's Answer to the CSPA protest dated February 3, 1995.

All new water right applications are subject to CEQA and its guidelines. The City's water right applications are not exempt from CEQA and its guidelines as claimed by the City. The City claims their diversion on Devil's Canyon Creek is an on-going project. Unless the City can prove that it has a valid pre-1914 right for said diversion based on a showing of evidence to the State Water Board supported by valid evidence, the on-going project is illegal and is the unauthorized diversion and use of the state's water.

The City claims the CSPA protest environmental allegations make no sense and that the CSPA claim of adverse environmental and public trust resource impacts does not have any factual support.

The duty to evaluate adverse environmental impacts does not depend upon a showing by the public [CSPA], or even other public agencies, that there will be impacts. The project proponent [City of Santa Barbara] must present substantial evidence from which a reasoned conclusion may be reached that there will not be significant adverse impacts. We reference Laurel Heights, supra 47 Cal 3d. at 405-406. The duty to provide evidence rests with the applicant [City of Santa Barbara] and the agency [SWRCB], and not with the public [CSPA]. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 304-305 Section 21002, Section 21080.5(d)(2)(l).

The burden is not shifted at the administrative level to those [CSPA] challenging a project to present evidence of adverse impacts before the agency [SWRCB] can be required to assess whether such impacts exists. The failure to assemble adequate information for a meaningfully environmental review cannot be used to justify a finding of no significant impact. We reference Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at 311-312; Christward Ministry v. Superior Court (1986) 184 CalApp.ed. 180, 197 and Laurel Heights, supra, 47 Cal.ed at 405. Otherwise, the agency [SWRCB] would be allowed to avoid an attack on the adequacy of the information simply by not requiring the submission of such information. We reference Kings County, supra, 221 Cal.App.ed at 723.

The City's storage and diversion at Gibraltar dam, and the City's diversion on Devil's Canyon Creek are causing adverse cumulative impacts to the public trust resources of the Santa Ynez River between Gibraltar dam and Lake Cachuma.

Under CEQA and its guidelines the City is required to evaluate potential cumulative impacts for the following reasons:

A draft EIR must discuss "cumulative impacts" when they are significant. (CEQA Guidelines, section 15130, subd. (a).) These are defined as "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts." (CEQA Guidelines, section 15355; see also section 21083, subd. (b).) "Individual effects may be changes resulting from a single project or a number of separate projects." (CEQA Guidelines, section 15355, subd. (a).) "The cumulative impacts from several projects is the change in the environment which results from the incremental impact of the project when added to the closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (CEQA Guidelines, section 153, subd. (b).)

A legally adequate "cumulative impacts analysis" thus is an analysis of a particular project viewed over time and in conjunction with other related past, present, and reasonably foreseeable probable projects whose impacts might compound or interrelate with those of the project at hand. Such an analysis is necessary because the full environmental impact of a proposed action cannot be gauged in a vacuum. (Emphasis Added)

The City further states that this diversion has occurred since before Gibraltar, and no change is contemplated as a result of the issuance of a permit. The City further states that hydrogeologically, it makes no sense; two-thirds of the river's watershed is below the diversion, and Gibraltar Dam spills, which occur two out of every three years, overwhelm the flow in this creek.

Gibraltar Dam may spill two out of three years, but there are no mandatory daily flow requirements which requires the City to release water from the dam at all times to keep fish and other public trust resources in good conditions in the Santa Ynez River as required by state law.

The City alleges that the other and adjacent channel of the creek is not subject to any diversion, and provides fish an alternative route to and from the river. The City did not provide any biological information to the CSPA that documents the allegation that there is sufficient water in the adjacent channel in which fish migrate upstream and downstream in Devil's Canyon Creek. Also, the City did not provide to the CSPA any data which shows the daily streamflows above and below the City's diversion on Devil's Canyon Creek.

The City is Hiding Behind Alleged Pre-1914 and Prescriptive Rights to Prevent Environmental Protection Measures for Public Trust Resources

It is no secret that the City of Santa Barbara is hiding behind alleged pre-1914 and prescriptive water rights to prevent environmental protection measures for the public trust resources of Devil's Canyon Creek and the Santa Ynez River.

There is only seepage flowing from Gibraltar dam into the Santa Ynez River between the dam and Devil's Canyon Creek. The river reach between Gibraltar dam and Lake Cachuma has been nearly extinguished because of the City of Santa Barbara's diversions at Gibraltar dam and on Devil's Canyon Creek.

We submit that the common law public trust doctrine prevails over pre-1914 water rights. And this issue is ripe for the courts to make a ruling.

Gin Chow Decision

The Gin Chow Decision has one fundamental error. The Supreme Court forgot about the public trust steelhead resources and other public trust resources that need water to survive in the river. The Supreme Court felt in 1933 that it was a waste of the state's water to flow to the ocean. We now know that is not true and that anadromous fish need water flowing to the ocean to migrate to and from the ocean.

Section 5937 Applies to the City's unauthorized diversion on Devil's Canyon Creek and Water Right Applications 29815 and 28667

We submit that Section 5937 of the California Fish and Game Code applies to the City's diversion on Devil's Canyon Creek. The City is the owner of the weir and is subject to Fish and Game Code 5937. We further submit that Section 782; Title 23; Cal. Adm. Code also applies to Applications 29815 and 28667.

In 1975, the SWRCB adopted a regulation which subjects new applicants for the appropriation of water to the requirements of Section 5937. The section is currently found in Title 23, Cal. Adm. Code at Section 782. Because the Applications 29815 and 28667 are new applications to appropriate water, the City is subject to Section 782.

Conclusion

The CSPA will not withdraw its protest. The unauthorized use of the state's water by the City of Santa Barbara's diversion on Devil's Canyon Creek must be resolved by the State Water Board. Consequently we are requesting the State Water Board to hold a hearing specifically on the unauthorized use matter.

Respectfully Submitted

____________________________________

Robert J. Baiocchi, Consultant

For: California Sportfishing Protection Alliance

P.O. Box 357

Quincy, CA 95971

cc: Mike Jackson, Counsel, CSPA

Jim Crenshaw, President, CSPA

Bill Jennings, Chairman, CSPA

Robert B. Maddow, Special Counsel

Price, Polisner, Maddow, Nelson & Judson

500 Ygnacio Valley Road, Suite 325

Walnut Creek, CA 94596-3840

For: City of Santa Barbara

Robert Pike, City Attorney

City of Santa Barbara

630 Garden Street

P.O. Box 1990

Santa Barbara, CA 93102-1990

Jack Gipsman, Attorney

Office of the General Counsel

U.S. Department of Agriculture

Pacific Region

San Francisco Office

33 New Montgomery, 17th Floor

San Francisco, CA 94105-4511

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