Water: A Multiple Use Resource Forever, by Felix Smith
Felix Smith, who as a US Fish & Wildlife Service biologist was one of the first to recognize the disaster unfolding at the Kesterson wildlife refuge caused by toxic agricultural runoff, recently wrote a long paper, rich in information and richer in reflection, on the history of water in California and on the currently most pressing water issues in the state. We post it here for all who think they are still students of these complex, critical problems and remain more interested in learning than in blaming. -- blj
Water: A Multiple Use Resource Forever
Felix Smith 1/
In California the ownership of water resides with the people. It is held “in trust” by the State to be managed for the benefit of present and future generations. This held “in trust” or held “as a public trust” has existed in California since statehood on September 9, 1850. This makes government administrators the trustees of our water, its fish and wildlife resources, associated uses and ecological values. This trusteeship is a duty and moral obligation of all levels of government.
The various uses of water is the basis of much of California's prosperity. Water is basically free. After filing an application to appropriate water, paying an application fee and going through a short permit review, the allocation is made. There are no annual charges by the state for diverting water from a water body or pumping groundwater. Once a water allocation is made and barring severe drought or a finding of waste or unreasonable use, the allocation is forever. However the allocation can be reviewed at any time. Water is a valuable resource supporting urban communities, agriculture and industry. Water as an ecosystem supports trust resources like Chinook salmon, steelhead trout, striped bass and the Delta smelt; many species of wildlife; diverse habitats as rivers and streams, marshlands, estuarine areas and other wetlands; supports many uses such as hydro electric generation, boating, rafting, and other uses and values important to society. Water quality is key to its many of its ecological uses and values.
California's Porter-Cologne Water Quality Act designates the State Water Resources Control Board and the Regional Water Quality Control Board as the agencies with the primary responsibility for water quality. The Act obligates these agencies to address all waste discharges that could affect the quality of the State's waters. This includes point and non-point sources of pollution. The definition of “waste” is broadly defined to include any and all waste substances liquid, solid, sewage, associated with human activity. The Act clarifies that “All discharges of waste into waters of the state are privileges, not rights”.
Water is the environment in which fish and other aquatic life must carry out all their life processes. The future of aquatic resources and associated ecological values is inextricably tied to the physical, chemical and biological aspects of their environment. Healthy and diverse aquatic populations appropriate for the area are indicative of good water quality (temperature, flow, oxygen and chemical parameters).
Judge Racanelli in his Delta decision understood that preserving and protecting water quality stretches the water supply. Protecting beneficial uses is a State Board / Regional Board obligation. The term “beneficial uses” means beneficial to the appropriator and water contractor and not harmful to trust resources, other beneficial uses and values. Water uses and activities that are consistent with the public trust are encouraged.
Water quality problems exist when there is the failure to provide water of sufficient quality or quantity to protect or enhance an ecosystem, its resources, beneficial uses and ecological values. There is ample evidence that the goals of the Federal Clean Water Act and the State's Porter-Cologne Act are not being met in some Central Valley waterways because fish and wildlife and their habitats, the swimmable and fishable waters and public use are impacted by degraded water quality caused by human activities.
A use of water can be considered unreasonable if it pollutes, if it offends our sense of aesthetics or natural beauty, if it interferes with the right of the public to enjoy a natural resource, if it threatens in a harmful way a potential water supply or upsets the ecological balance of nature, or to allow it confers a valuable privilege which is inconsistent with protecting beneficial uses. Examples of questionable water uses are reviewed.
When a user of water returns that used water as runoff, drainage, wastewater, etc., to a waterway he or she has the obligation to see that it meets water quality standards to protect the next users’ rights, beneficial uses, the public trust and ecological values of the receiving waters.
Water: A Multiple Use Resource Forever by
Felix Smith 1/
The various uses of water form the basis of much of California's prosperity. Water is basically free. After filing an application to appropriate water, paying an application fee and going through a short permit review, the allocation is made. There are no annual charges by the state to pump groundwater or divert water from a water body. Once a water allocation is made and barring severe drought or other water shortages, or a finding of waste or unreasonable use, the allocation is forever. Water is a valuable commodity and especially so when one agency tries to buy water from another. Water is a valuable resource and ecosystem supporting trust resources like Chinook salmon, steelhead trout, striped bass and the Delta smelt, many species of wildlife; supports many aquatic habitats; rivers and stream, marshlands, estuarine areas, other wetlands; supports many uses such generation of hydro electricity, boating, rafting, and other values important to society. Water quality is key to many of its values and uses.
Private and public monies have funded water development projects that provide and will continue to provide many tangible benefits. However the affected river ecosystems have not fared well. Public trust resources, our streams and rivers, their associated fishes, other aquatic life and wildlife resources, all too frequently, were ignored or came in a very poor second in the planning, construction and operation of these projects. In some cases streams and rivers were nearly dried up when dams diverted their waters elsewhere. The needs of fall, late fall, winter and spring runs of Chinook salmon and steelhead trout, were frequently ignored. Salmon and steelhead trout spawning runs were blocked by dams or their natal streams diverted or dewatered. Various types of marshlands important to migratory birds of the Pacific Flyway were frequently left without a viable water supply. The Delta has became a confusing and deadly place for young salmon and steelhead trout, Delta smelt and long fin smelt. Young Chinook salmon, steelhead trout, Striped bass and Delta smelt were (are) sucked up by Delta pumps, killed or carried south with exported water. For a fisherman or recreational boater, Delta currents are confusing with currents at many locations having no relation to what is in a tide book. Poor water quality impacts many beneficial uses.
Today, managers of water, fish and wildlife resources are trying to correct degraded rivers and streams, improve water quality, restore anadromous fish numbers and wildlife populations to double the “recent historic levels”. This level being the average annual abundance of adult populations, for example Chinook salmon and steelhead trout for the period 1967-1991 (Central Valley Project Improvement Act-1992) and the state's Salmon, Steelhead Trout and Anadromous Fisheries Program Act-1988, to help restore their habitats and their populations to natural spawning self-sustaining levels. These managers are striving to ensure that the Central Valley’s aquatic ecosystem is a healthy and productive ecosystem from its headwaters in the Cascade, Sierra Nevada and Coast ranges to the Sacramento and San Joaquin Delta / San Francisco Bay Estuary and to the Pacific Ocean.
1/ This background material is for Save the American River Association's (SARA) Board of Directors. Felix Smith is a SARA Board member, professional fish and wildlife biologist with over 60 years of agency and non-profit experience. He is a Public Trust advocate. He can be contacted at <firstname.lastname@example.org>
Water: A Multiple Use Resource -Final 11.2.15
In California the ownership of water resides with the people. It is held “in trust” by the State to be managed for the benefit of present and future generations. The idea of that water being held “in trust” is not new. It has existed in California since statehood, September 9, 1850. The Public Trust Doctrine has persisted in European, English and American law, but has its roots back in Roman times. The Institutes of Justinian in the Sixth Century A.D. stated: “by the law of nature these things are common to mankind ---the air, running water, the sea and consequently the shores of the sea.” These resources, associated uses and ecological values are held by governments as a “public trust” for the people. This “held as a public trust” makes government agencies and their administrators, the trustees of water, fish and wildlife resources, uses, and ecological values, and other assets of significant public use and value. This trusteeship is for the benefit of people. Protecting the sustainability of the people’s property, associated uses and values is a duty and a moral obligation of all levels of government. (Sax-1970, Althaus – 1978, Raffensperger –2006. Wood -2014
In 1853, the California Supreme Court in Eddy v. Simpson (3 Cal. 249) stated "It is laid down by our law writers that the right of property in water is usufruct and consists not so much of the fluid itself as the advantage of its use." The American Heritage Dictionary defines ~usufruct~ as "the right to utilize and enjoy the profits and advantage of something belonging to another so long as the property is not damaged or altered in any way" (emphasis added).
Put in the context of the allocation of a water right -- a user of water has State permission to use that water for beneficial uses and the user must respect the rights and interests of others, including the peoples’ fish property and the use of that water is not to alter the integrity of that water either as a water supply or an ecosystem. Water quality is an important component of that water resource both as a commodity and as an ecosystem. Protecting water quality is critical to the life needs of fish and wildlife resources, associated uses and values. The State and the courts have stated that beneficial uses are to be protected. The State Constitution, Article X, Section 2, as amended in 1928, provides:
It is hereby declared that because of the conditions prevailing in this state the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use of water in or from any natural stream or water course in this State is and shall be limited to such water shall be reasonably required for the beneficial use to be served, and such right does not and shall
not extend to the waste or unreasonable use or unreasonable method of use or
unreasonable method of diversion of water. Riparian rights in a stream or water course attached there to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses: provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the legislature may also enact laws in the furtherance of the policy in this section contained (Emphasis added).
Article X, Section 2 of the California Constitution establishes that any waste or unreasonable use or method of use of water should be prevented. The right to use water does not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diverting water to its place of use.
Section 100 of the Water Code states:
It is hereby declared that because of the conditions prevailing in this state, the general welfare requires that the water resources of the State be put beneficial use to the fullest
extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use of water in or from any natural stream or water course in this State is and shall be limited to such water shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. (Emphasis added)
The Water Code Section 102 provides that all water resources within the state are the property of the people of the State. Section 104 declares that the people of the state have a paramount interest in the use of all water of the state, and that the state shall determine what waters of the State, surface and underground can be converted to public use or controlled to protect the public interest. Water Code Section 1825 states - it is the intent of the legislature that the state should take vigorous action to enforce the terms and conditions of existing permits and licenses to appropriate water; to prevent unlawful diversion and unreasonable use of water and the unlawful diversion of water. The State can use it police powers to protect the peoples' interest in trust resources, uses and values of its waterways.
The State Constitution, Article 1, Section 25 states,-- the people shall have the right to fish upon and from the public lands of the state and in the waters thereof--. This is an important and very valuable right when fish and other aquatic life are plentiful, healthy and fit to eat. Some state waters have public health warnings about eating fish from those waters. There are concerns for fish and wildlife that feed on those same fish that live in such waters. Some factors affecting water quality are wastewater, drainage, discharges from wastewater treatment facilities, saline intrusion; diversions that reduced stream flow can reduce the water's waste assimilative capacity; reservoir storage and operations, stored solar radiation, land management activities, agricultural chemicals (fertilizers and pesticides) to name a few.
The California's Porter-Cologne Water Quality Act (Cal Water Code, Div. 7 at S13000) states “The legislature finds and declares that the people of the state have a primary interest in the conservation, control and utilization of the water resources of the state, and that the quality of all the waters of the state shall be protected for use and enjoyment by the people of the state.” The Act applies to all state waters, including surface water, groundwater, wetlands; to point and non point sources of pollution and covers waste discharges to land.
The Porter-Cologne Water Quality Act designates the State Water Resources Control Board (State Board) and the Regional Water Quality Control Board (Regional Board) as the State agencies with the primary responsibility for water quality control. The Act obligates these agencies to address all waste discharges that could affect the quality of the waters of the state. This includes surface waters, wetlands and groundwater and applies to point and non-point sources of pollution. The Act clarifies that “All discharges of waste into waters of the state are privileges, not rights” (Porter-Cologne Water Quality Control Act, January 1, 2015, Water Code Section 13263 (g)).
The State Board administers the allocation of water rights. It grants permission (a water right) to utilize an amount of water for beneficial uses at a designated place of use. This right of use is not vested title. A holder of water right must exercise his or her right in such a manner so it does not infringe on the resources, uses, ecological values and rights of others. No person is permitted by law to use his or her water right in a manner that the quality of water remaining in stream along with its associated beneficial uses and ecological values are impaired. No person is permitted by law to discharge wastewater or allow the discharge of any material in any manner or form which degrades the quality of the receiving waters, so that associated resources, beneficial uses and ecological values are impaired. The State Board sets water quality criteria and water releases for most of the major reservoirs like the Central Valley Project, State Water Project, and private and municipal systems of the state.
The Regional Boards administer the Porter-Cologne Water Quality Control Act. It prepares and adopts Water Quality Control Plans (WQCP) for their respective regions and carries out enforcement actions. The State Board provides oversight of Regional Board actions and appeals and can prepare Water Quality Control Plans. Any inconsistency with Regional Board WQCP gives way to the State Board’s developed WQCP. The Regional Boards are to regulate waste discharge activities to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible (Section 13000, Legislative Findings - Cal Water Code, Division 7 effective January 1, 2015.) The definition of “waste” is broadly defined to include any and all waste substances liquid, solid, sewage, associated with human activity. The term “discharges of waste” are not limited to discharges resulting from waste disposal activities, but also include releases of pollutants as part of other activities, including point and nonpoint sources of waste (SWRCB - 2004.
Regional Board's responsibilities regarding waste discharge permits (actions or in actions) are critical to protecting water quality for all beneficial uses. The limitation of using “the highest water quality which is reasonable, considering all demands being made and to be made on those waters”, alters the definition of “usufruct” regarding water quality. The American Heritage Dictionary defines ~usufruct~ as "the right to utilize and enjoy the profits and advantage of something belonging to another so long as the property is not damaged or altered in any way" (emphasis added). Do wastewater injection wells get a pass on the usufruct nature of groundwater? The answer should be no.
With the limitation of “the highest water quality which is reasonable”, water quality can be allowed to degrade, singularly or in combination with other discharges. This is contrary to public trust protection and the state's duty to protect the public trust whenever feasible as discussed in Audubon, and to protect all beneficial uses called for in Racanelli (US v. SWRCB, 227 Cal Rpt at 161-1986). One must ask, when is it in the public interest, and when is it consistent with public trust protection to allow a discharge or combination of discharges to degrade water quality? When water quality is poor or impaired, efforts must be made to improved the quality of discharges to those waters, not to continue to impair the state's waters. Apparently the ability to pay fines or the ability to pay for improving water treatment facilities factor into the decision of the Regional Board.
The Federal Water Pollution Control Act, (Clean Water Act, as amended), declares that the objective of this Act is to restore and maintain the chemical, physical and biological integrity of the Nation's waters. The Act provides among other things; 1) it is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985; 2) it is a national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shell fish, and wildlife and provides for recreation in and on the water be achieved by July1, 1983; and 3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited. The State Board and the Regional Boards are tasked with implementing the Clean Water Act requirements to control waste discharges as delegated by the US Environmental Protection Agency.
The State Board and Regional Boards are really trustee of the quantity and quality of the water in our rivers and streams so important to our salmon and steelhead trout, Delta smelt and longfin smelt, for public health and recreation. As trustees the State Board and Regional Boards have an affirmative duty and a continuing responsibility to reevaluate the uses of water; to protect public trust resources, uses and ecological values from being impacted by unwise or unreasonable diversions or uses of water, drainage and discharges resulting from the upstream diversion and use of water. They each are responsible to protect the public trust whenever feasible per Mono Lake decision. To help with enforcement Water Code Section 13002 (c) provides that any person can maintain an appropriate action for relief against any private nuisance or for relief against any contamination or pollution.
The guiding principle underlying Illinois Central Railroad v. State of Illinois (145 US 387 – 1892) was the public trust doctrine. The key policy concern was water resources should be devoted to uses that are consistent with their nature and should be protected against adverse uses. The Illinois Central case was about the State of Illinois giving away a major portion of Chicago's Lake Michigan waterfront and the lake bed to the Illinois Central Railroad mostly to benefit private owners and uses. The U.S. Supreme Court said the State of Illinois can't do that because such an act would violate the trust under which the waters and lands are held. The Supreme Court voided the transfer. Following the line of thinking of the Illinois Central decision, when drainage and wastewater is discharged from a point or non-point source is adversely impacting water quality, resources and beneficial uses of receiving waters, the State's enforcement powers should be used to stop or correct the situation. Such point and non-point discharges should not be allowed or be released to the environment, but to an enclosed regulated system. There is no public benefit for disposing such wastes into public waters. The disposal of drainage and wastewater to state waters usually is for the economic benefit of the farmer / land owner / corporation. Each discharger should document the appropriateness / justification of discharging their waste into public waters.
Water as an Ecosystem
Water is the environment in which fish and other aquatic life carry on all their life processes. Therefore aquatic resources, their uses and ecological values are inextricably tied to the physical, chemical and biological aspects of their environment. Healthy and diverse aquatic populations appropriate for the area are indicative of good water quality (temperature, flow, oxygen and chemical parameters). Good water quality allows for near optimum use and reuse of water, as a domestic and agricultural supply, an environment for fish and other aquatic life, and potential food supply, as a place to recreate and to seek solitude. For healthy and self-sustainable fish populations to exist (also wildlife populations), the total aquatic environment (water, bed, riffles, gravel, sediment, riparian vegetation and associated insect life, i. e. the food web) all interact and must be suitable for aquatic life at the individual, population and community levels.
`Water quality (dissolved oxygen, temperature and trace elements are significant factors) is critical to the productivity of water as an ecosystem. A river can be lost to the farmer; - to fish; - as a place to recreate or as a water supply. It can be diverted, polluted, misused or over appropriated. For an understanding of a river forever, Worster (1984) refers to Aldo Leopold’s Round River. Aldo Leopold looking for a way to make the principles of ecology clear and vivid, suggested that nature is a round river (i.e. the hydrological cycle) continuously flowing into itself, going through the soils, the flora and fauna of the earth, while supporting many resources, uses, and ecological values. Any pollution by persistent and bio-accumulative chemicals and trace elements, such as selenium and persistent chemicals / pesticides, have no place in our Round River. Destroying one part of this river can destroy other parts or all of it, or its resources, with the benefits to society severely degraded or lost.
Judge Racanelli in his Delta decision (US v. State Water Resources Control Board, 227 Cal Rpt 161- 1986) understood that preserving and protecting water quality stretches the water supply and protects beneficial uses. Protecting beneficial uses is a State Board obligation. The term “beneficial uses” means beneficial to the appropriator and water contractor and not harmful to trust resources, other beneficial uses, and values. Water uses and activities that are consistent with the public trust are encouraged. Uses that do not protect the public trust or that destroy beneficial uses (for example water quality) are not consistent with the public trust.
Preserving and protecting water quality is critical to the productivity of water as a ecosystem and a commodity for domestic and industrial uses. Unlike soil, which can be built up over time, water can’t be built, water quality can be improved, but only at great cost.
It is with this understanding that a water right holder or a land manager using contract water has an obligation (bonded if necessary for that obligation) to secure for the rest of us the right to use that water and land in the future for beneficial uses. Down stream water right holders have the right to expect water quality that will support beneficial uses including populations of salmon and steelhead trout, Delta smelt, other fishes and wildlife and their support habitats.
Water quality problems exist when there is the failure to provide water of sufficient quality or quantity to protect or enhance an ecosystem, its resources, beneficial uses and ecological values. There is ample evidence, some collected under State Board contracts, that the goals of the Clean Water Act and the Porter-Cologne Act are not being met in some Central Valley waters and waterways because fish and wildlife as well as their habitats, and the swimmable and fish able waters and public use are impacted by poor water quality. Selenium, boron, trace elements and agricultural chemicals (pesticides and fertilizers) continue to impact aquatic ecosystems resulting in reduced or failed reproduction of selected fish and wildlife species. That death and deformities to fish and wildlife continues and ecosystem diversity is being reduced. Incidences of abnormalities (17 percent and 21 percent) in the San Joaquin River and lower tributaries is greater than the 2 percent above which is an indicator of impaired conditions (Dubrovsky -1998). Public health advisories have been issued warning people about eating fish or waterfowl that may contain high levels of selenium, trace elements, agricultural chemicals and pesticides. Mercury is long time public health concern in many Northern and Central California rivers, streams and reservoirs. Many other public trust interests and uses were and are being degraded or destroyed. In the San Joaquin Valley many public land managers do not recommend water contact recreational uses of Valley waters (Smith-1996 and 2008).
Setting water quality standards via Total Maximum Daily Loading (TMDL) has been the Regional Board’s method of controlling pollution, one substance at a time. The synergistic effects of the “one chemical impacts” are hard to analyze or determine impacts, even in a laboratory setting. Multiple agricultural chemicals, natural and man assisted salts and sediment load carry many agricultural chemicals. Chemicals and trace elements accumulate in the tissues of fish and wildlife via the food chain. One such metal is selenium, because of its characteristics, toxicity, persistence in the environment, to bio-accumulate and its mobility, a little bit of it goes a long way. Meeting TMDL for selenium, by itself, is not an indicator of good water quality because organisms bio-accumulate selenium to many times the concentration level in the surrounding water. A slight increase of selenium in the surrounding environment can cause a disproportional increase of selenium in organisms, rapidly crossing the safe threshold from benign nutrient to a deadly toxin.
The Violation of law, the Public Trust Doctrine or Public Nuisance law
Public nuisance law can protect the public against unreasonable interference with public rights, resources, uses and values. Public nuisance typically involves public officials and the exercise of the state's police powers. Public nuisance encompasses pollution of land, air and water as public interests are affected and especially where public health and safety are involved (Lin- 2012).
The public trust doctrine involves resources, uses and values that are so important to society that they can not be privately held in clear title. Historically it was air, the sea, running water and the shores of the sea, fish and wildlife. The Marks v. Whitney (1971) decision expanded the definition of the tidelands trust beyond traditional purposes to include the preservation of those lands in their natural state as open space and as environments which provide food and habitat for birds and marine life and which favorably influence the scenery of an area. Today public trust protection includes lakes, the smallest rivulets, vast marshlands; the food web of the ocean, rivers, lakes and streams; groundwater, ecological aspects and numerous uses and values enjoyed by people (Audubon -1983).
The public trust doctrine can be used by government to exercise its public trust responsibilities on behalf of the people against a private citizen or corporate actions. It can be used by government against claims that its actions have taken private property and thus
requires compensation. And it can be used by the people to force the state to carryout its affirmative duties and to protect the public trust whenever feasible (Lin- 2012) .
The rights that may be protected by public nuisance law can over lap with those subject to the public trust doctrine. This includes obstructions of a water way or stream, the discharge or release of pollutants (drainage) into a river or stream affecting water quality, or to land that affects fish and wildlife habitat, and the pumping of groundwater that dries up or negatively impacts a stream important to and being used by an ESA listed species.
The disposal of wastewater, waste products and other debris
The legality of disposing wastewater, waste products and other debris into State's waters and waterways was clarified by case law over 130 years ago. For years hydraulic mining companies blasted away at hillsides with powerful streams of water to get at the gold. These mining companies disposed of their wastewater and other debris in such a way that it ended up covering 1,000s upon 1,000s acres of agricultural land and wrecked several towns. This material was impacting the Yuba, Feather and American Rivers and the navigability of the Sacramento River, Delta waterways and San Francisco Bay. The water was polluted and unfit for domestic uses. The concern was hydraulic mining debris, i. e. wastewater, rocks, gravel, sand and mud frequently called “slickens”. Mining company spokesmen often insisted that the gold the Sierra rivers added to the commonwealth justified their conversion of these rivers to trunk sewers. The miners claimed priority because they arrived first (Breckin-1999). The impacts were a public and private nuisance of major proportions.
In the 1860s and 70s many people believed the California’s courts were too corrupt to provide relief to those impacted by the hydraulic mining debris. So Mr. Woodruff, a absentee landowner, sued North Bloomfield Mining Company in the Federal Ninth Circuit Court. The case was Woodruff v. North Bloomfield Mining Co. (18 F. 753-1884). Judge Sawyer reviewed the evidence of farm land ruined, towns damaged and navigation of the Sacramento River severely impacted extending to San Francisco Bay. Judge Sawyer was stunned by the damage unbridled free enterprise / exploitation accomplished in just a few years. On January 7, 1884 Judge Sawyer issued a permanent injunction against any further dumping of mining wastes and debris by the North Bloomfield Mining Company into state waterways. Federal Courts on a case by case bases gradually shut down other hydraulic mines in the Sierra occasionally sending in the military to enforce its will (Breckin -1999).
Later that year, the State Court heard the issues involved in People v. Gold Run Ditch and Mining Co. (66 Cal. 138 –1884). The State presented evidence that hydraulic mining wastes and debris dumped or placed on the banks of non-navigable streams was being washed onto the downstream lands and into waterways impacting beneficial uses of water for domestic use, filling in rivers destroying navigation and was a nuisance. The State engineer estimated that 310,000 acres of farmland was either ruined or severely damaged (Brechin-1999). The State alleged that the pollution and filling of the waterways with mining wastes and other debris could be enjoined. The State also asserted that the public trust rights held by the people in navigable waters are paramount and controlling over that of allowing mining wastes and other debris to be dumped or allowed to pass into State waters and waterways. In Gold Run, the act / concern was navigation, but it could easily include commerce, fish, fisheries and water quality for domestic uses and many other beneficial uses protected by the public trust. No doubt there were destroyed salmon spawning redds. The U.S. Geological Survey (Professional Paper 105) has estimated that the total volume of gravel mined between 1849 and 1909 was estimated at 1,555,000,000 cubic yards.
The Gold Run Court decision of November 25, 1884, ruled that mining companies did not gain a prescriptive right to dump or to allow their waste material to enter navigable waters, and that dumping of such material constituted a nuisance that could be enjoined. The Gold Run Court took note that there were large capital investments in the business of hydraulic mining. However the Gold Run Court went on to reminded the mining industry that:
--- a legitimate private business founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, becomes dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it, to so conduct it so that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners. Upon that underlying principle, neither the state or Federal legislature could, by silent acquiescence, or by attempt legislation, ... divest the people of the State of their right in the navigable waters of the State for the use of a private business, however extensive or long continued (Cal Rpt at 1158-1159). (underling for emphasis) This is trustee language in favor of the people in 1884.
The Gold Run Court decision emphasized that trust rights held by the people are paramount and controlling over the dumping of mining waste water and other debris into the State's waters and waterways. The Gold Run decision followed the decision by Judge Sawyer in Woodruff v. North Bloomfield Gravel Mining Co.
The Gold Run Decision agreed with the State’s premise that the disposal of mining debris was found to be a public nuisance, an invasion of public rights, and therefore unlawful. The decision was an injunction that was against the entire hydraulic mining industry. Each company could continue to mine, but could not dump or allow, in any way, their wastewater and other debris to enter the waters and waterways of the state. This reasoning should apply to San Joaquin Valley farms and ranches that discharge drainage and wastewater impacting waters and waterways, groundwater, marshlands and terrestrial environments.
In 1895, a case involving the dumping of lumber mill waste, ranch waste and other debris into State waters came before the California Court. This was People ex rel Ricks Water Co. v. Elk River Mill and Lumber Co. (40 Pac Rpt 486 -1895). The owner of a lumber mill and ranch enterprise was allowing filth from cows, hogs, stables, other debris and fetid matter to enter and contaminate Elk River which was a water supply for people and other interests downstream including the City of Eureka. The Court found the pollution a nuisance and an unreasonable use of the waters of Elk River. The Court reasoned that the acts enjoined are equivalent to actually putting the polluting material directly into the water. The Court further stated if the conformation of the defendant’s land is such that he cannot carry on a dairy without putting such filth directly into the water, then he must find some other use for the land (emphases added). This decision followed the rulings laid down in Gold Run and Woodruff v. North Bloomfield Gravel Mining Co. in 1884.
In 1897 the case People v. Truckee Lumber Co. (116 Cal 397, 48 Pac 374 -1897) came before the court. The action was to enjoin a nuisance. Truckee Lumber Co. saw mill wastes (shavings, dust, edgings and other wastes)was entering the Truckee River. This material was polluting the river, was deleterious to and was killing trout, other aquatic life and was destroying a trout fishery.
The Truckee Court clarified that fish in our rivers and streams and other waters of the state are unique property with ownership in the people. The Truckee Court recognized the public trust aspects of the various trust properties being impacted. The Court stated "it is well established principle that every person shall so use and enjoy his own property, however absolute and unqualified his title, that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property nor injurious to the rights of the public". The Truckee Court ruled that dumping saw mill wastes and related debris in the Truckee River violated the rights of the people and was a public nuisance.
THIS BRINGS US TO SOME OF TODAY'S CONCERNS.
Point and Non-point Source of Pollution
An activity such as water export can have local and far reaching impacts affecting many resources, uses and environmental values extending from the water's area of origin to its place of use. One can follow water from the Trinity River watershed (Trinity Dam and Clair Engle Lake) and the upper Sacramento River watershed (Shasta Dam and Lake Shasta) down the Sacramento River to the Sacramento / San Joaquin Delta Estuary. This water then is pumped out of the Delta and after traveling many miles in canals, is delivered to lands of the San Luis Unit, Central Valley Project on the west side of the San Joaquin Valley. This is about a 400 mile water transfer. A portion of the irrigation water applied to the land becomes agricultural runoff and drainage contaminated with selenium, boron other trace elements, and salts leached from the soil. This selenium-laced drainage manifested itself in a contaminated aquatic ecosystem and a food chain toxic to fish and wildlife at Kesterson NWR (Reservoir).
U.S. Fish and Wildlife Service biologists began investigating water quality and drainage issues and potential threat of selenium, posed to fish and wildlife via a contaminated food chain at Kesterson NWR in the spring of 1983. The first deformed migratory bird, an American coot, was found at Kesterson Reservoir in early June 1983. This was about 2 months after the April 1983 National Audubon Society decision regarding Mono Lake and tributaries. The Audubon court declared that the Public Trust Doctrine was alive and well and stated that the State has “an affirmative duty to protect the public trust” and “to do so whenever feasible.” The selenium / deformed bird issue was covered widely by nightly TV news. Tens of thousands of dead and deformed migratory birds and numerous other ecological impacts occurred from Kesterson NWR downstream into the Delta (San Joaquin Drainage Program, 1990, pg. 5-40.)
In early 1984, Mr. James (Jim) Claus, a knowledgeable citizen and duck club owner in the Grasslands, appeared before a hearing of the Central Valley Regional Water Quality Control Board. Mr Claus told the members of the Regional Board that the drainage entering the Grasslands and Kesterson NWR was contaminated to the point of violating State water quality laws. He requested the Regional Board levy a fine and take whatever actions that are necessary against those discharging agricultural drainage and wastewater of questionable quality into Kesterson NWR and the Grasslands. Members of the Regional Board (political appointees some with ties to agriculture) took no action. Mr. Claus had to fight the state bureaucracy to get a hearing before the State Board. The State Board moved cautiously, scheduling a hearing in the fall. Mr. Claus not satisfied with the State Board's actions, went to Merced County Superior Court and obtained an order from Judge Donald Fretz requiring the State Board to shut down the Kesterson Reservoir a portion of Kesterson NWR, immediately or appear before him on March 15,1984 to argue the merits of the case (Harris -1991).
The body of evidence indicated that irrigating saline seleniferous soils results in drainage and wastewater contaminated with selenium, boron and other trace elements, chloride and sodium sulfate salts. By mid 1984 the extent of selenium toxicity and accumulating evidence of dead and deformed birds could no longer be ignored. The State Board in its Agricultural Water Management Guidelines for Water Purveyors, September 1984, warned purveyors that “Failure to take appropriate measures to minimize excess application, excess incidental losses, or degradation of water quality constitutes an unreasonable use of water” (SWRCB - 1984). This on going selenium contamination was so extensive that beneficial uses of water were and continue to be impacted (Smith-1996). In February 1985, the State Board issued Order WQ 85-1 and noted that continuing to irrigate selenium laden soils threatens to create condition of pollution and a nuisance which could constitute an unreasonable use of water. Selenium was found in aquatic life of the San Joaquin River and Delta and in the groundwater (Presser and Luoma –2006.)
In March 1987, the State Board issued Order No. WQ 87-3 for the Bureau to proceed with clean-up of the reservoir portion of Kesterson NWR. The Bureau spent $6.5 million to fill 710 acres of selenium contaminated wetlands with 1,050,437 cubic yards of material. In addition $14 million was spent to purchase land and $8 million spent for wetland habitat development. While Kesterson Reservoir was buried, it was not dead. Capillary action carried selenium to the surface to impact terrestrial habitats, small mammals, to small avian species to the northern harrier and red-tailed hawk (Garone - 2011).
The meaning of the Gold Run, Elk River and Truckee Lumber decisions is clear. As a matter of law, one must exercise his or her rights or use his or her property so as not to infringe on the rights, interests or properties of others. Water right holders are entitled to the natural flow undiminished in quality. These cases relied on public nuisance law. These decisions fit the contemporary understanding of the public trust and the needs that protecting water quality also protects resources, uses, and ecological values for all beneficial uses.
Casting the meaning of the Gold Run decision in agricultural drainage and wastewater context, the decision would read “Farming and other agricultural entities do not gain through custom, any right to dump their wastewater, drainage and other liquid or other material, sediment, etc., into State waterways. The disposal of such agricultural wastewater and other wastes is a public nuisance, an invasion of public rights, and therefore unlawful. The act of disposing such agricultural drainage, wastewater and other wastes is enjoined. The ruling would impact the entire agricultural community and associated corporations. Each entity could continue to farm, but could not dump or allow their wastewater and drainage to, in any way, enter the waters, waterways, groundwater and wetlands of the State.
The decision in People ex rel Ricks Water Co. v. Elk River Mill and Lumber Co. (40 Pac Rpt 486 -1895) was an agricultural setting and a water quality issue. The Elk River Court stated if the conformation of the defendant’s land is such that he cannot carry on a dairy without putting such filth directly into the water, than he must find some other use for the land. This thinking should be applied to West side San Joaquin Valley. If a farmer can not prevent drainage from going to the surface and ground water, the selenium laden lands should be taken out of irrigated production.
The Regional Board and the State Board could enforce the meaning of the Gold Run and Elk River Mill decisions under its continuing authority and its public trust responsibilities. The meaning being the public trust rights held by the people are paramount and controlling over the dumping of wastewater and other debris into the State's waters. While nuisance law was the driving force in the above cases, the State could have used the public trust doctrine and its police powers to enforce the law.
In Racanelli (U.S. v. State Water Resources Control Board, 227 Cal Rpt 161 -1986), one of the key points in that decision is the State Board can set water quality standards to protect all beneficial uses including the protection of fish and wildlife and their respective habitats. Under Audubon, the State Board has the affirmative duty to protect trust resources, uses and values whenever feasible. Disposing of wastewater and drainage into waters of the state is not a beneficial use of water because the act and its destructive aspects are detrimental to beneficial uses and values (Johnson -1980).
Aquatic ecosystems are being degraded by agricultural chemicals resulting in reduced or failed reproduction of selected fish and wildlife species. The death and deformities to fish and wildlife continue while ecosystem diversity is being reduced. Public health advisories have been issued warning people about eating fish or waterfowl that may contain high levels of selenium. Other public trust interests have been degraded or destroyed. Selenium contaminated habitats and organisms extend from the Mendota pool, down the San Joaquin River to the Delta and Suisun Marsh and Bay. There are pesticides, herbicides, selenium, a variety of salts, Boron, and something called “unknown toxicity” in lower San Joaquin River and tributary waters. One only has to look at selected State Board reports to verify such information. There has been some improvement in water quality over time as some of the problem soils have been take out of production. See 2000 California 305 (b) Report on Water Quality, by the State Board –2000, Presser and Luoma –2006, and Dubrovsky, et al –1998.
The Grasslands Bypass Project has been doing its job of using a portion of the San Luis Drain to collect and carry drainage containing high levels of selenium (54 ppb on a 30 day running average), salt, boron and other substances and discharging this chemical soup into Mud Slough tributary to the San Joaquin River. This use was coming up for review for another 10 year use permit This activity and associated data was reviewed by Dennis Lemly, Ph D an expert on selenium pollution and contamination of aquatic systems. Dr. Lemly said that he could only conclude that the proposed Action (continued use of the bypass) poses unacceptable risks to the health and well being of Chinook salmon and steelhead trout using the San Joaquin River. Dr. Lemly went on to support the conclusion of the Beckon / Maurer (Fish and Wildlife Service) report that mortality could be above 50 percent mortality based on anticipated waterborne selenium concentrations.
As long as irrigated agriculture continues on saline seleniferous soils some level of impacts will continue. The shallow groundwater of down slope lands plus the lands, waters and habitats used by resident and migratory birds and other wildlife, many species of fish and other aquatic life will and continue to be impacted. The contamination of habitats adversely
affects the basic elements of the food chain. This in turn affects the upper trophic levels of the aquatic food chain and extend to seed eaters, reptiles mammals and avian predators.
The rational thinking of the Elk River Court over 120 years ago is particularly relevant to today’s selenium drainage and wastewater issues associated with the irrigation of selected lands in the San Joaquin Valley. That thinking is --- if the West side farmers cannot carry on their operations without polluting the local ground and surface waters, poisoning the soil through salinization, poisoning fish and wildlife and rendering their habitat toxic, they then must find some other use for the land. There is no taking issue if a use is deemed unreasonable and a public nuisance and that such action is necessary to protect public trust interests and beneficial uses of water (Audubon - 1983). If they refuse to retire or fallow the land and continue to irrigate saline – seleniferous soils, it is a waste and unreasonable use of the water. The water should be shut off and returned to the area of origin for environmental protection purposes, and the area allowed to returned to natural / native vegetation.
It is over 30 years since the Kesterson NWR selenium / dead and deformed migratory bird kill made front page and TV news. What happened at Kesterson is a distant memory of only a few people. Kern NWR get its water through a local water district, however, the State Aqueduct is the source of that water. The Westlands Water District can pump groundwater up to 30,000 AF annually and deposit this water into the State Aqueduct to add to the overall State supply. Is this reasonable? What is the quality of that water? Are the selenium levels safe for humans? Are selenium levels protective of fish and other aquatic life? What are the beneficial uses of State Water Project water? What are the beneficial uses of Central Valley Project water? Is drainage deposition a beneficial use of State waters? Are water quality standards being violated for people? What about fish and wildlife? Is the Regional Board checking? Apparently there are lots of unknown. Some of this water delivered to the Kern NWR is to maintain and develop wetland habitat. Is the State Water Project setting up Kern NWR to be the next dead and deformed migratory bird fiasco like Kesterson NWR of 1983?
Oil Exploration, Fracking, Acidizing and Injection wells
In the mid 1970s, the National Audubon Society and California Audubon teamed up with the Environmental Defense Fund (EDF) to put State agencies (Fish and Game, State Lands and others) on notice over avian and terrestrial wildlife deaths at oil sumps in the south end of the San Joaquin Valley. Audubon members documented such taking with field notes and photographic evidence of oil sumps taking birds and small mammals over many months. The presentation was lead by a EDF representative. The action was to get the oil companies to clean up their waste sumps or face a lawsuit for taking wildlife. Not wanting to risk bad publicity on TV or in newspapers, the oil companies quietly bulldozed and filled 1000s of wastewater / oil sumps. The wildlife taking issue or the clean up never appeared in the press.
Today the issues are hydraulic fracturing (fracking) and acidizing of existing wells to increased oil and gas production. These recovery techniques involve blasting huge amounts of water laced with toxic chemicals under high pressure to break up rock formations to allow the oil and gas to be extracted. Such activities also produce large volumes of contaminated wastewater. Most of this effort is aimed at oil extraction. According to U.S. Energy Information Administration there were 19,153 oil wells and 4,142 gas wells in California in 2009.
The Department of Conservation over sees the Division of Oil and Gas which over sees the exploration and mining oil and gas. Governor Brown, in 2011, fired Derek Chernow and deputy Elena Miller for trying to enforce the essence of state law. Governor Brown quickly appointed Mark Nechodom to head up the Department of Conservation. He was known for having a more favorable view of oil and gas extraction and relaxed enforcement (Source Watch- 2015).
There is considerable concern about fracking fluid sumps and injection wells used to contain produced fluids, water and chemicals. California has an estimated 2583 wastewater injection wells of which 1553 are currently in use (Arbelaez-2014) . There injection wells are located from Chico south to Kern County and on to Los Angeles Basin. In California the average fracked well used 166,714 gallons of water (Source Watch, 6/25/15). The well stimulation technique called “acidizing” involves injecting hydrochloric and / or hydrofluoric acids and the same chemical used in fracking such as methanol, benzene, naphthalene, and trimethylbenzene into isolated (?) ground water, not near potable water.
Federal officials have been concerned that oil companies have injected billions of gallons of drilling fluids and produced wastewater into aquifers that should protected for their potential drinking and irrigation water supplies. The Central Valley Regional Board recently discovered there are 933 waste fluid sumps associated with oil production in Kern County. About 578 sumps were active with one-third not permitted. Kern County accounts for about 80 percent of California's oil production while producing 80 billion gallons of waste fluids, an amount, if clean, could supply about half million households for a year (L.A. Times, Feb. 26, 2015). State wide, in 2011 more than 2.5 trillion barrels of produced fluid, water / chemicals. (Source Watch-California and Fracking 6/25/15). A barrel is equal to 42 U.S. Gallons. This volume of water and chemicals if clean, could supply about 30 million households for a year. Unfortunately the produced fluid contain alarming levels of toxic and carcinogenic chemicals that cannot be readily cleansed for reuse except at a very high cost. Can such fracking and acidizing and its use of water be called a waste and unreasonable use of water in times of drought? At any time? Injecting such fluids into groundwater even isolated groundwater does not seem to be a wise option.
The Central Valley Region Water Quality Control Board and Department of Conservation have failed their public trust duties. Disposing chemical-laden produced fluids to sumps, lined or unlined, that can contaminate groundwater is not a beneficial use of water because to satisfy that use would be detrimental to several beneficial uses protected by the public trust. Disposing of spent fracking fluids to isolated sumps can be a problem because such sumps can be toxic to avian and terrestrial wildlife, livestock and poison the land. The use of injection wells to dispose of fracking fluids and spent chemicals is a bad idea because potable groundwater used for domestic use or for irrigation could be at risk of contamination. Such chemically laden fracking fluids should be disposed in a closed system, not to any part of the environment. Kern County is heavily dependent on pumping groundwater to meet its urban and agricultural needs. This groundwater mining has gone on for years and is a long term problem. Injection of waste and produced fluids can enter or mix with supplies used for urban and irrigation uses and render that supply unusable for urban or irrigation uses. The injection of fracking fluids into good quality water supplies violates Racanelli's instructions to the State Water Board to protect beneficial uses against degrading uses and violates the Audubon Court's instructions to protect the public trust whenever feasible.
Lawsuits have already been filed by farmers against Chevron and the Governor Brown under RICO. According to the San Francisco Chronicle (Aug.26), California's embattled Division of Oil, Gas, and Geothermal Resources will undergo a sweeping overhaul following revelations that the office for years has let petroleum companies dump their wastewater into federal protected aquifers.
The San Francisco Chronicle of Oct. 9, reported that the State Division of Oil, Gas, and Geothermal Resources found 822 violations of permit conditions issued to oil companies in 2014. On that same date The Bakersfield Californian reported Governor Brown appointed Bill Bartling, a former Chevron and Occidental Oil executive as a District Deputy of the DOGGR. The San Francisco Chronicle on October 17, reported California regulators closed down 33 oil wells that had injected wastewater into potentially drinkable aquifers protected by Federal law. This brings to 56 the number of oil field wastewater injection wells shut down for such violations. All but two of the latest closures were in drought stricken Kern County.
Disposal of Treated and Partially Treated Effluent.
The City of Colfax has been ordered to bring its inadequate wastewater treatment facility up to acceptable standard. This facility has disposed of treated and spilled partially treat human sewage from its treatment facility and holding pond to Smuther's Ravine and Creek. Smuthers Creek in turn flows into Bunch Creek then to the North Fork of the American River. The City of Colfax apparently desiring to get rid of its treated and partially treated effluent as fast as it. The effluent then passes through private lands to the North Fork. The odor of sewage and chlorine wafting through the mixed coniferous forest or the sight of human solids and paper does not make for an attractive outdoor experience and degrades property values. Such sewage spills and impacts to lands renders such lands / soils unfit for the production of food crops for sale. It appears the Regional Board allows or looks the other way. The City of Colfax has disposed of its treated and partially treated effluent by using adjacent private property as a part of its sewage treatment process without compensating the landowner.
The concern is water quality for safe drinking water, water contact recreation, for wildlife, for conserving, protecting and restoring native fish species of the North Fork of the American River. While the dilution of pollution is a partial solution to the problem, the question must be asked: When is it in the public interest for a municipality to dispose of treated and partially treated effluent to a water way that passes through private lands as it flows to the receiving waters of the North Fork of the American River? Is the City of Colfax and / or the Regional Board violating their respective public trust responsibilities?
The City of Colfax wastewater treatment is just an example. There must be dozens upon dozens (one reviewer said there are hundreds) of such wastewater treatment plants collectively discharging billions of gallons of effluent yearly to state waters and waterways. The degree of compliance with discharge permit conditions is unknown. Some people say that most wastewater treatment facilities violate their respective discharge permit conditions during any given year. This wastewater effluent properly treated could be a source of water for a golf course, orchard, vineyard, or sustain native fishes and other public trust values.
Agricultural Chemicals and Environmental Contamination
Professor Johnson (1980) observed that thousands of rivers, streams, lakes, ponds and wetlands in the west are dried up or nearly so each year by appropriators with disastrous consequences to recreational activities, to fish and wildlife that depend on such habitats for survival. Professor Johnson points out that since the public trust doctrine applies to constrain fills in navigable water which destroys navigation, impact fisheries, and other trust uses and values, it should equally apply to constrain the extraction of water that destroys navigation and fisheries, other public trust resources, uses and values. Both actions result in similar damages to the public trust. This analogy was added to the Audubon decision (at 357).
The State Water Resources Control Board has set a goal of zero toxicity in surface water of the San Joaquin Valley (Dubrovsky, et al-1998). The San Joaquin River upon entering the Valley is calcium-sodium bicarbonate type supporting all beneficial uses (SWRCB -1982). With about 10.5 million acres of farmland in the San Joaquin Valley using about 14.7 million acre feet of irrigation water there is a lot of drainage and wastes water (Gronberg,et al 1999). It is irrigation drainage, wastewater discharges and agricultural runoff with its agricultural chemicals (fertilizers and pesticides) that continuously degrades the San Joaquin's water quality all the way to Vernalis and the Stockton Ship Channel. Degraded water quality includes low dissolved oxygen in the ship channel that can occur in late summer and fall to delay the migration of the fall Chinook salmon spawning run (SWRCB-82). Water quality in the lower San Joaquin River and Ship Channel is still an issue today.
In 1990 about 597 million pounds of active ingredients of nitrogen and phosphorus fertilizer was used in the San Joaquin Valley. In 1991 there were 88 million pounds of active ingredient pesticides were used in the San Joaquin Valley. The livestock industry contributes 318 million pounds of nitrogen and phosphorus from manure in 1987 (Gronberg, et al-1999). Mud and Salt Sloughs contribute 10 percent of the stream flow but nearly half the nitrate load in the San Joaquin River much of which is derived by subsurface drainage. Nitrate loads of the San Joaquin River from subsurface agricultural drains have increased steadily since the 1950s (Dubrovsky, et al -1998). During the 1992-1995 period, 49 pesticides were detected in the San Joaquin River. The herbicides diuron and trifluralin, and the insecticides azinphos - methyl, carbaryl, chloropyrifos, diazinon and malathion were present in concentrations exceeding criteria to protect aquatic life, but did not exceed USEPA drinking water standards, However the potential for increased toxicity, endocrine disruption, impaired immune system is not known. Exceeding the criteria that is protective of aquatic life indicates that such chemicals are impacting some aquatic life stages in the San Joaquin River. In addition there is a potential for additive interactive effects. Residuals of organochlorine insecticides from the days of using DDT and toxaphene banned in 1970, are still found in the sediments and aquatic life of the San Joaquin River and may be around for years to come (Dubrovsky -1998). The problem; How does the State Board or Regional Boards protect trust resources so as not to violate the public trust under which these resources are held.
Professor Johnson pointed out that the public trust doctrine applies to constrain fills in navigable water which destroys navigation, impact fisheries, and other trust uses and values. Are there reasons why the public trust should not apply to constrain the use of toxic chemicals that end up in the aquatic ecosystem that can destroy or degrade public trust resources, such as fish and fisheries, associated uses and values? Both actions result in similar damages to public trust Interests.
River flow / water quality / temperature concerns
The guiding principles regarding “in good condition” are discussed in Cal Trout 1 and 2. Habitat suitability (for an activity i.e. adult holding / maturing, spawning, egg incubation and rearing) is right mix of stream flow, timing, water temperature and substrate composition to provide; 1) healthy individuals; fish are healthy, free of disease, parasites, etc., have reasonable growth rates and adequate habitat for successful spawning; 2) diversity and abundance of aquatic populations, diversity of age class, sufficient habitat to support all life stages and support self-sustaining populations; 3) the community, its overall health including co-evolved species and the health of the aquatic ecosystem at several trophic levels.
Chinook and coho salmon and steelhead trout are ectothermic (cold-blooded) animals. As such they are physiologically controlled by ambient water temperature. To say it another way, water temperature controls all life stage needs and physiological functions. These cold water fishes spend the vast majority of the life in water of less than 60DF. For example, the Chinook salmon life cycle, except for the short period as young and pre-smolts feeding in fresh water, is spent in the ocean where smolts, sub adults and adults seek out water with temperature of less than 60DF (Welch, et al 1995 in Carter-2008). The salmonid immune system is particularly robust in the range of 55 to 59DF.
The large rim reservoirs of the Central Valley are a huge heat sink. Thermal pollution (solar heating) accumulates in Folsom Reservoir over the long hot summer. Such reservoirs are more resistant to temperature change which in turn, results in reduced diurnal temperature variation, prolonged warming and elevated water temperature of released water. The temperature of water released can be a problem if it degrades cool water fish habitat thereby impacting the river's steelhead trout and Chinook salmon. For example Folsom and Nimbus Reservoirs store heat which in turn delays the natural cooling that occurs in late summer and early fall months. Nimbus Reservoir, a regulatory reservoir, adds stability to the flows released from Folsom Reservoir. However when flows are reduced, the time it takes for
flow to pass through Nimbus Reservoir results in additional solar heating. Flow fluctuations and channel modifications usually results in the loss of any cool water refugia in the river.
Water temperature has profound effects on various biochemical processes affecting metabolic rates, which in turn affect activities, behavior and growth of salmonid fishes. Water temperature can be considered in two ways. 1) A factor affecting the development, metabolism and growth. 2) A factor (stressor) affecting metabolism at sub-lethal (chronic, but can lead to death) and lethal (acute) levels. Chinook salmon and steelhead trout have different temperature requirements for the successful completion of each life stage; i. e. adult Chinook holding, maturation and egg development, egg incubation and hatching; fry and juvenile growth, feeding rates and metabolism, parr - smolt transformation and migration to the ocean pasture where they can grow and fatten up for their spawning migration to their natal stream to start the next generation (Ligon –1999). Elevated water temperature affects basic physiological functions such as basic oxygen demand / carbon exchange, organ function, egg and sperm development and viability, food uptake, growth, preference for rearing and feeding locations, immune system function, disease resistance, alertness, swimming ability to avoid predators, energy stores (fat stores), etc (EPA-Issued Paper 5 – McCullough –2001, Carter-2008).
Chinook salmon and steelhead trout are at the mercy of the temperature of their environment. Salmon and steelhead age 0+ to young, juvenile and smolts can have higher preferred temperature and appear to be more sensitive to elevated temperature than older and larger fish. Steelhead trout appear to be most sensitive to elevated temperature during smolt stage where water temperature of less than 60DF is preferred as opposed to their great resilience to elevated temperature during earlier life stages where water temperature up to 66DF and with an abundant food supply provides for good growth (Sauter, et al 2001, also McCullough, et al - May 2001).
Elevated water temperature (above 60DF) is a continuous stressor and especially so without cold water refugia. The salmonid immune system which is robust in the range of 55 to 59 DF is compromised as temperature increase above 62DF and especially so above 63.5DF (Berman–1990, in McCullough –1999). The longer adults are exposed to thermal stress, the less chance they have for long-term survival of individuals, their eggs and the long-term sustainability of the population (Ligon, et al –1999, Carter-2008). Latent embryonic mortality and development abnormalities are associated with exposure of Chinook adults to temperature above 63.5DF, with the incidence of disease dramatically increasing above 64.5DF (Berman -1990, EPA Issue Paper 5, May 2001- McCullough, et al).
A common measure of thermal stress for adult Chinook salmon is the 7-Day Average of Daily Maximums (7DADM). For holding adult Chinook, water temperature should be less than 60.8 DF for the 7-day average daily maximum temperature. Water temperature above 60.8DF is often associated with high rates of infection and notable mortality; water temperature above 64.4DF is associated with serious rates of infection and large outbreaks of disease (EPA Issue Paper 5, May 2001- McCullough, et al, Carter-2005).
The high incidence of egg retention in female Chinook salmon (prespawning mortality) has been a concern for a long time as noted in CDFW’s (CDFG) Chinook Salmon Spawning Escapement Survey Reports for the American River. The early segment of the run of Fall-run Chinook salmon is exposed to 3 to 8 weeks of elevated water temperature well above the 60/61DF and into the mid 65DF to 68DF. Chinook salmon holding for 3 to 8 weeks suffer multiple stresses, such crowding, disease, infection, and injury all of which contribute to the high pre-spawning mortality, low spawning success, and poor egg and gamete quality with subsequent mortality during egg incubation. A similar percentage of males in the run would also died without spawning. The preferred temperature is 58DF or below for spawning and egg incubation (EPA Issue Paper 5, May 2001- McCullough, et al, Carter –2005).
A salmonid fish manager's objective is to provide spawning habitat, (sufficient flow with protective water temperature and high quality spawning space) each year to support naturally reproducing and self-sustaining populations of Chinook salmon and steelhead trout in the long term. Why? Because Chinook salmon spawn once and then die. There are no second tries or do overs.
In the American River during years 2001 to 2011 Chinook salmon suffered high pre-spawning mortality during the front portion (about half) of the runs. In 2001 the early portion of the run suffered 25 to 78 percent pre-spawning (unspawned females) mortality. The 78 percent mortality during the front half of the run fell to 29 percent during the second half. The run suffered 67 percent mortality as measured by the number of unspawned females measured during the entire spawning escapement period. Pre-spawning mortality in addition to elevated water temperature is enhanced by such stress factors as low flow, crowding, injury, disease and predation. In 2001 water temperature was in the mid to high 60DF for much of September and October, with less than 60DF not attained until November 18 as measured at the Fair Oaks Gage. In numbers of fish, an estimated 66,000 female adults died in 2001 without spawning (CDFW, LAR Chinook Salmon Escapement reports).
It took years to get a temperature control devise at Shasta Dam to provide the water temperature needed for Winter-run Chinook salmon (FESA and CESA listed endangered). Estimated cost $80 million (Somerset Eng-1986). Federal Judge Oliver Wanger, in his decision in Case 1:06-CV-00245-OWW-GSA - of April 16, 2008 (U.S. District Court for the Eastern District of California), discussed temperature control at Shasta Reservoir. Judge Wanger allowed Reclamation little leeway for meeting temperature criteria. He followed Racanelli's “set water quality to protect beneficial uses including fish protection”. Judge Wanger, based on his reading of the Temperature Criteria in the National Marine Fisheries Service’s Biological Opinion ruled that Reclamation “shall manage” the coldwater pool of Shasta Reservoir and make coldwater releases to provide suitable habitat for Chinook salmon and Steelhead trout in the Sacramento River between Keswick Dam and the Bend Bridge.
In the Sacramento River an estimated 20 million Fall-run Chinook salmon eggs were stranded below Keswick Dam in 2011 and 2012 when Reclamation implemented stream flow reductions (Golden Gate Salmon Assoc.- 2014). If flow reduction did not kill them elevated water temperature did. In 2014 temperature modelers predicted there would be sufficient cool water in Shasta Reservoir, however this did not prove to be so. The engineer modelers prediction of sufficient cold water did not prove out. The California Department of Fish and Wildlife reported that about 95% of the natural spawning winter run and 98% of the natural spawning fall run Chinook salmon eggs and hatchlings were lost last year downstream of Shasta Dam when water temperature increased from a safe zone of 56 DF to as much as 62 DF at which salmonids' egg mortality increases to 100 percent (SUBLEGALS – Oct.16, 2015).
The Central Valley Project Improvement Act was signed in 1992. Thermal pollution released from Folsom Reservoir continues to impact coldwater habitat of the American River. The Bureau has failed to provide the facilities and an operation plan for how it will manage Folsom Reservoir to meet the temperature and flow needs to protect and restore steelhead trout (Federal Endangered Species Act (FESA) listed as threatened) and Chinook salmon runs of the American River. There has been 23 years of lost trust restoration opportunities and 23 years of impacted or lost coldwater habitat (a beneficial use). The present low water level in Folsom Reservoir is because Folsom is releasing water to maintain Delta water quality to make up for what Shasta is holding back to help provide temperature control to protect the winter-run Chinook salmon has been listed as endangered under the FESA since 1994.
The State Board technical staff is investigating the flow and temperature needs below many of the Central Valley's rim dam complexes. In some cases there has been flow and temperature criteria set by a Court decision or as part of the State Boards Water Quality Certification under the Clean Water Act.
Controlling thermal pollution and abating its impacts by modifying Folsom Reservoir operation, and improving the shutter and penstock intakes at Folsom / Nimbus Dams should be a good thing. Establishing temperature criteria that is protective of steelhead trout and Chinook salmon life stages with implementation deadlines should spur innovation in the way Folsom / Nimbus facilities are managed to prevent thermal pollution impacts to the Steelhead and Chinook salmon resources of the Lower American River. Providing environmental conditions to meet biological needs of steelhead trout and Chinook salmon life stages is protecting beneficial uses and the public trust, “the people’s fish property”. The overall aim is to maintain significant numbers of naturally reproducing and self sustaining populations of Chinook salmon and steelhead trout to support the valuable coast wide commercial and sport fisheries and a viable steelhead trout fishery. Therefore the State Board should require:
1. The Bureau of Reclamation to construct, as soon as possible, an automated temperature activated shutter system on at least one powerhouse intake at Folsom Dam to access the coldest water in Folsom Reservoir.
2. The Bureau of Reclamation to implement the Annual Temperature Plan as a strategy for managing Folsom’s coldwater pool to meet the salmonid resource needs in the American River particularly during July through mid to late November. During this time various life stage of naturally spawned and rearing juvenile and smolt steelhead trout and Fall-run adult Chinook salmon migration, holding, spawning and egg incubation are occurring in the American River. Achieving the Temperature Criteria that is protective of Chinook salmon and steelhead trout as measured at Watt Avenue should help meet the intent and purpose of Fish and Game Code Section 5937.
3. The Bureau of Reclamation to modify the daily / weekly operation of Nimbus Reservoir to meet revised temperature criteria in the Lower American River. This may require modifying the intake structure to the Nimbus Dam power generating facilities. It also may
require at certain times that Nimbus Reservoir be operated as run of the river facility in
order to reduce its heat sink affect during low flow periods.
In the Central Valley the spring-run Chinook is listed as threatened, the winter-run Chinook is listed as endangered and the Central Valley steelhead trout are listed as threatened under the Federal Endangered Species Act (FESA). The spring-run Chinook salmon is now extinct in the San Joaquin and American River Basins. After 4 years of drought there is concern for all natural spawning runs of Chinook salmon and steelhead trout.
The preceding are a few examples of water quality issues that are preventing state waters and waterways from becoming viable and productive ecosystems forever.
To attain maximum public and private beneficial uses of such waters, the passage or discharge of any agricultural drainage, wastewater and industrial wastes, thermal pollution into public waters, both surface and groundwater should be consistent with protecting the beneficial uses of the receiving waters. Judge Racanelli (at 227 Cal. Rptr 161 at 178 -1986) stated the State Board must protect beneficial uses. If the existing water quality of receiving waters exceeds water quality objectives, such water quality should be recognized as the minimum standard. Justification to reduce water quality should be demonstrated by public need; must be shown to be in the public interest, consistent with public trust resources, associated uses and values of the receiving waters. A discharge should not be for the convenience of the discharger.
A discharge to surface and groundwater that contributes to or degrades surface and groundwater, the sustainability of a downstream ecosystem or a component of that ecosystem to make it unsuitable for sustaining viable agriculture, wildlife, fish and other aquatic life, or which makes fish unsuitable for human consumption, or which is a hazard to other fish and wildlife, or which degrades ecological, aesthetic, recreational uses, small craft navigation, and scenic values, is inconsistent with public trust protection, the reasonable use of water and is therefore a nuisance. When chemicals enter the bodies of adults or children, or enter the domestic or wildlife food supply to toxic levels without our consent, it is a trespass.
The people are supposed to be protected against all waste and / or unreasonable uses of State waters. A use of water can be considered unreasonable if it pollutes, or if it offends our sense of aesthetics or natural beauty, or if it interferes with the right of the public to enjoy a natural resource, or if it threatens in a harmful way a potential water supply or upsets the ecological balance of nature, or to allow it confers a valuable privilege which is inconsistent with protecting beneficial uses. Nearly all uses of water can be called beneficial, but not all uses can be called reasonable and beneficial. For example, the use of water for diluting salts, trace elements, (ammonia, selenium, boron, agricultural chemicals -fertilizers and pesticides, and sediment, etc) is not a beneficial use of water because it is detrimental to many other beneficial uses of water. There has been a reluctance by the State Board or Regional Boards to enforce State law against those having political clout and financial resources, especially so
when requested by a complaint from one of its citizens. The financial ability to correct inadequate facilities and pay fines apparently weighs in the decision making process.
Fish and wildlife resources have been and continue to be impacted by poor water quality in many areas of the Central Valley. Several species of fish from the iconic Delta smelt, the long fin smelts to the spring, winter, fall and late fall runs of Chinook salmon (the gold standard for fresh salmon), to the hard fighting steelhead trout are at risk. The people do not need to suffer any more Kesterson type contaminated wetlands and deformed migratory birds. The Delta ecosystem, its farmlands and valley wetlands as productive entities are at stake from poor or inadequate water quality.
Fish and wildlife need good quality water through out their life cycle. Agriculture needs a good quality to provide quality food products. The urban users and the industrial community need a good quality water supply. The collapse of the Delta ecosystem and the loss of its several indicator species should not be an option. The Delta smelt and the winter-run Chinook salmon are right on the cusp of extinction. What is needed is water quality reliability that meets the needs of fish and wildlife resources, the Delta ecosystem, the farmer and the urban user and the industrial user. To protect the public trust is an affirmative duty (see National Audubon Society) of the State Water Resources Control Board and the Regional Water Quality Control Boards.
Conclusion and Recommendations
When water is diverted for beneficial uses and then returned to a natural waterway, it should meet water quality standards to protect the next users’ rights, beneficial uses, and public trust values of the receiving waters. The use of 7.5 billion dollars of Prop 1 Bond monies for water development can not be predicated on the demise of the Delta ecosystem, its farmlands or the extinction of the Delta smelt, the Winter-run Chinook salmon, or the other races of Chinook salmon unique to California's Central Valley, or the majestic steelhead trout.
Every water right holder and discharger should be reminded of the Gold Run Court's statement to the hydraulic mining business about carrying out their activities;
--- a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, becomes dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it, to so conduct it so that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners.
The State Board and Regional Boards have a continuing responsibility to evaluate the uses of water and to protect public trust resources, uses and ecological values from being impacted by unwise or unreasonable diversion or use of water. This includes drainage, return water and wastewater impacts resulting from the diversion or use of that water. Clearly a water right holder or water contractor has an obligation to use water in such a manner so as not to impair or diminish the people’s rights and long-term interest in water as a resource, including down slope users, associated resources and aquatic systems. This includes using injection wells to dispose of fracking produced fliuds and associated chemicals.
The key to carrying out the State Board’s public trust duties are its powers to regulate and its powers to protect the State's fundamental rights in trust properties, ecological values and public use of state waters. "The powers of the State as trustee are not expressed. They are commensurate with the duties of the trust. The State as trustee has the implied power to do everything necessary to the execution and proper administration of the trust". (People v. California Fish Company, 166 Cal. 576, 138 Pacific 79, 87, 88 (1913), City of Long Beach v. Mansell, 91 Cal 23, 476 P. 2d 423 at 437 (1970). The “everything necessary” must include the use of police powers to actively demonstrated its will to ensure the continued survival and renewability of river and stream ecosystems, trust resources, uses and values.
Consistant with the Federal Clean Water Act, as amended, and California’s Porter-Cologne Water Quality Control Act, it is in the public interest to protect and restore degraded surface and ground water to a level that will sustain beneficial uses and values. To fully protect the public trust and all beneficial uses of water, the Regional Board should exercise its full public trust duties and responsibilities to that end. It is recommended that:
* Individual dischargers (point, non point and oil well product water/ chemicals) should be required to submit monitoring reports to the Regional Board identifying the location, time of discharge (periodic or continuous), volume and the concentrations of various constituents proposed for or being discharged to surface water and groundwater.
* Water quality cannot be protected if one doesn’t know the actual content of the discharge to evaluate potential impacts and the effectiveness of management measures. Monitoring the discharges is an integral component of this effort. Monitoring components of ecosystem include the food web from bottom to the top feeder / predator is necessary.
* All farm dischargers, just like urban and industrial dischargers should be required to prepare individual on farm water quality management plans identifying measures to be implemented to reduce drainage and runoff. These plans should be made available to the Regional Board and to the public for review and comment.
* After years and in some situations decades of little or no regulation or only voluntary
compliance, its time to require compliance with water quality standards in the near- term, not some uncertain distant future. Require progress reporting every 2 years with a full compliance in 6 years or less. In case of emergency (disposal of fracking wastes) to protect potable water supplies, shut down should be done immediately.
* The Regional Board must evaluate each discharge and to request if necessary actions to bring the discharge up to today's regulatory requirements and provide evidence that the public trust resources associated uses and values are being protected.
* Each discharger must demonstrate consistency with the State’s non-point source and anti- degradation policies. Failure to meet such policies could result in a finding of waste and unreasonable use of water and possible forfeiture of water rights.
Upon a complaint of a citizen, entity, or upon its own action, the Regional Board or if necessary the State Board shall review the complaint and shall revise any discharge permit conditions to assure compliance with protecting the public trust.
The preceding discussion is aimed at local, regional and state wide regulators to act in behalf of the people and to protect the public trust. One must be aware that all of us in one way or another directly or indirectly contribute to some of the environmental insults discussed. It is up to citizens, who will eventually pay the bill to cover costs associated with protecting our public trust resources, uses and values for future generations. A wise move would be to be ready to file a lawsuit after filing a complaint with the Regional or State Board.
Water: A Multiple Use Resource Forever
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