ROCK CREEK HYDRO1LECfRfC ?ROJECT PERMITTED APPLICAflONS

ROCK CREEK HYDRO1LECfRfC
PERMITTED
APPLICAflONS
~6380
Order
Amending
Permit8
?ROJECT
AND 27353
87-2
Water
19259
Rights
B
19260
RESERVOIR
MARCH
STATE
WATER
RESOURCES
1987
CONTROL
BOARD
i
i
STATE OF CALIFORNIA
STATE WATER RESOURCES CONTROL
In the Matter
19260, Issued
and 27353,
ROCK
CREEK
of Perm its 19259 and
on Applications
26380
LIMITED
)
)
J
1
1
)
)
PARTNERSHIP,
Permittee,
BOARD
ORDER:
WR 87- 2
SOURCE:
Rock
COUNTY:
El Dorado
Creek
1
ORDER
BY THE
1.0
AMENDING
RIGHT
PERMITS
19259
AND
19260
BOARD:
INTRODUCTION
Permits
26380
19259
and
and 27353
Department
Resources
"Board")
19260
subject
of Fish
"Department")
.
WATER
amend
Permits
bypass
of streamflow
having
been
September
appeared
held
15, 1986;
in the
that
and
record,
to as
a public
a greater
hearing
19, 1986 and on
Department
the Board
the Board
to as
Water
to require
on May
and the
evidence;
State
referred
19260
the
referred
the
fishery;
the Board
permittee
and presented
all evidence
19259
on Applications
and conditions;
(hereinafter
for the
before
granted
(hereinafter
requested
Board
been
to terms
and Game
having
Control
having
finds
having
having
considered
as follows:
2.0
BACKGROUND
2.1
On February
ordered
Martin
Mr.
that
subject
2.2
Permit
19259
subject
16 and
of the
term
19260 be issued
became
terms
and
1596, which
19260,
proceeding.
16 provides:
"a .
From October 1 through April 30, a
minimum of 15 cubic feet per second;
"b .
From May 1 through September 30, a
minimum of 11 cubic feet per second;
"The total streamflow
shall be bypassed
whenever
it is less than the amount designated
for that period.
"No water shall be diverted under this permit
until permittee
has installed a device,
satisfactory
to the State Water Resources
Control Board, which is capable of measuring
these bypass flows."
Permit
term
17 provides:
2.
Creek
right
"For the protection
of fish, wildlife,
and
riparian vegetation,
permittee shall bypass
the following
flows:
2.3
3.596
to Joseph
to Rock
the water
19259
Decision
and conditions.
9 and 10 of Decision
17 of Permits
current
Right
sold the project
which
Conditions
terms
and
in Water
to certain
subsequently
Partnership,
permittee.
became
the Board
Permits
Keating
Keating
Limited
16, 2984,
are the
"a .
Permittee, in consultation and
cooperation with the Department of Fish
and Game, shall conduct an Jnstream Flow
Incremental Methodology IFG-4 flow study
within the reach of Rock Creek from 500
feet upstream of the diversion dam
downstream to the point of return of
water from the proposed powerhouse at the
confluence of Rock Creek with South Fork
American River.
The study shall evaluate
the effects of flow levels on trout life
history stages and on habitat needed to
support the different life stages.
The study shall model all representative
habitats of the affected reach of Rock
Creek including the habitats not
previously modeled by the permittee's
contractor.
(These include the spawning
habitat, the low gradient riffle habitat
in the upper part of the affected reach,
and the side channel of the stream
segment previously modeled by the
permittee's contractor.)
To the extent
possible, and with the agreement of the
Department of Fish and Game, the
permittee may use the original IFG-4
study to supplement the new study.
"b .
All field work elements of the study
described in a. shall be completed prior
to commencement of any construction work
in the channel and overflow areas of Rock
Creek within the reach described in a.
No diversion of water shall be made from
Rock Creek until the study described in
a. is completed and the results
evaluated.
“C.
The State Water Resources Control Board
reserves jurisdiction over this permit to
amend the bypass flows set forth in Term
16 to protect the fishery resources of
Rock Creek at natural preproject levels.
Action by the Board will be taken only
after evaluating the results of the study
described in a. and after notice to
interested parties and opportunity for
hearing."
3
. .
2.4
The key issues
for hearing
Has the permittee performed the fisheries
habitat study as required by terms 17a
and 17b?
"2.
Should the bypass flows required in term
16 be revised and, if so, what flows
should be required?
issue,
and term
regarding
the subject
Permits
term
20, was resolved
20 of each of the two permits
the permittee's
request.
P
‘:
19259 and 19260 authorize
October
1 through
hydroelectric
bypass
after
February
recommendation
through
not to exceed
and not to exceed
May 31, respectively,
reviewing
by the permittee,
1 through
bypass
with
issues, therefore,
direct diversion
(cfs) all year
flows of the lesser
through
in accordance
were
for the purpose
100
140 cfs from
of generating
energy.
The Department,
performed
before the hearing
was amended
The first and second
b.
of the hearing.
cubic feet per second
March
d
Should term 20 be amended to allow static
tests to determine the seepage loss of
the tunnel?"
The third
2.6
listed as:
"1 .
"3.
2.5
were
and evaluating
requests that the permittee
of 30 cfs or natural
29 and the lesser
September
30.
and recommends
of 15 cfs from October
September
30.
the fishery
opposes
that the permits
1 through
To support
4.
April
be required to
flow from October
of 60 cfs or natural
Permittee
studies
1
flow from
the Department's
continue
to require the
30 and 11 cfs from May 1
its position,
permittee
has raised
several
before
procedural
discussing
recommended
3.0
and jurisdictional
the merits
issues which we will consider
of the bypass
flow requirements
by the two parties.
JURISDICTIONAL ASSERTIONS
Permittee
asserts
three jurisdictional
claims which may be summarized
as follows:
1.
With
respect to hydroelectric
Energy Regulatory
,,
2.
appropriation
Permittee's
.3.
of water
project
of such riparian
is highly
by federal
may be operated
rights and federal
wouuld
Board ,t.oappropriate
made application
If
what streamflow
unappropriated
for such permit
bypass
law;
in exercise
of riparian
in exercise
of a combination
reserved
rights
rights.
stage
of this proceeding
any one of these claims
not be required
The proceeding
law governing
law; and
may be operated
questionable.
of the Federal
California
of these claims to the present
then permittee
issued."
licensees
("FERC"),
is preempted
under California
Permittee's
The relevance
Commission
project
recognized
power
water.
a permit
protect
the fishery;
address
this issue and amend the permits
w ith the issue of
be required
the Board has expressly
from this
has in fact been
is concerned
should
correct,
Permitte e has, however,
and a permit
at this stage
conditions
to obtain
is wholly
of permittee
reserved
in accordance
to
jurisdiction, to
with
its
5.
_.--.___-..
_-^_-L__.-..--_-__-_...-_.._.
.._.----__-._..-___.
.~.-.__.___-_-.__--__-_
.-.._-.._-_-._
a..
_._~
__..-.
_~
.~
_-_.J
findings.
We do not perceive what permittee's
have to do with the
be r-c+ iwrl
permittee
i n the pcrmi t< ;
is bound
permit
at all,
public
interest,
cannot
reasonably
retaining
issue of the streamflow
t.hwe
to obtain
claims
be imposed
of what conditions
of whether
water
should,
In other words,
of permit jurisdiction
provisional
claims
flows that should
appropriatiie
in the permits.
urge absence
the existing
bypass
go to the question
a conditional
not to the question
jurisdictional
streamflow
right
in the
permittee
as grounds
T
r:
for
bypass permit
conditions.
However,
notwithstanding
have no apparent
relevance
should be revised,
explain
Federal
Permittee
argues
hydroe!ectric
Commission
successor
"FPC").
assertions
the bypass
permittee's
claims
in this matter
flows
below, to
and therefore
herein.
Over Appropriation
of Water
that the Board has no power to issue permits
plants
(hereInafter
licensed
referred
Federal
by the Federal
to as "FERC").
Power Commission
In support of its contention
to license the Rock
Creek
the Rock Creek project
decided
has jurisdiction
of Control
power
of the
discuss
the proceeding
preemption
jurisdictional
to the issue whether
we briefly
why the Board
has not dismissed
3.1
that permittee's
in the United
Project
States
The FERC
(hereinafter
Supreme
Regulatory
is a
referred
to as
that the FERC has jurisdiction
and that federal
is exclusive,
Energy
for
permittee
jurisdiction
cites several
over
cases
Court and in other federal
?
courts.
0.
6.
I
.
We agree with permittee
Rock Creek
Project.
that FERC'S
that the FERC
However,
jurisdiction
the diversion
we disagree
is exclusive
and use of water
First, the language
of the Federal
with
appropriation,
(Section
27 of the Act).
applicants
water
contained
with
Together,
for hydropower
right permits
these
if state
None of the cases
involved
the appropriation
cases address
have stated
a hydropower
~ I.
the authority
project
the Federal
the operation
16 U.S.C.
6821
state
and that the Federal
of state water
right
to a state's
authority
laws.
of the FERC.
to regulate
Rather,
of the FERC to issue a license.
7.
(Section
to oppose the Board's
by a licensee
in California.
Power
or is intended
from the FERC must obtain
above, we do not question
16
make it clear that
law so requires,
1
and the
relating to the control,
sections
a challenge
of water
Further,
of water.
cited by permittee
law
for power purposes.
in the Act affects
laws
licenses
Power Act does not preempt
jurisdiction
state
use or distribution
appropriation,
in requiring
from the FERC comply with state
g(b) of the Act).
of
generation.
Act is explicit
and use of water
that nothing
to affect or interfere
regard to the control
power
the
contention
to the beds and banks of streams
diversion,
U.S.C. 6 802(b)
Act provides
respect
with
Power
to license
with permittee's
for hydroelectric
that an ,applicant for a license
requirements
has jurisdiction
the FERC's
authority
the
As we
to license
Throughout
deferred
the history
of the United
to state water
States,
right laws.
California
(1978) 438 U.S. 645, 653, 98 S.Ct. 2985,
deference
and the clear
of 1902 (43 U.S.C.
California
obtain
Stanislaus
States,
rights
could
Section
terms
Section
States,
water
this
Supreme
Court in
Reservoir
States must
on the
and must comply with
on the appropriation
had been assumed
of cases.
the United
Act
of water.
to be law
Prior to the decision
States
for its reclamation
had asierted
project
in
that it
without
complying
law.
The language
identical
dicta which
States
Recognizing
held that the United
and conditions
8 in a series
v. United
appropriate
with state
States
for the New Melones
This decis ion disapproved
California
supra,
v. United
8 of the Reclamation
River from the State of California,
the state- imposed
regarding
2990.
of Section
6 383), the United
v. United
its water
language
Congress. has consistently
of Section
27 of the Federal
to the relevant
part of Section
Power Act is nearly
8 of the Reclamation
Act.
37 states:
"Nothing contained in this chapter shall be construed
affecting or intending to affect or in any way to
interfere with the laws of the respective States
relating to the control, appropriation, use, or
distribution of water used in irrigation or for
municipal or other uses, or any vested right acquired
therein."
(16 U.S.C. 6 821)
Similarly,
Section
8 of the Reclamation
as
Act of 1902 states
part:
"Nothing in this Act shall be construed as affecting or
intended to affect or to in any way interfere with the
laws of any State or Territory relating to the control,
8.
in relevant
e;
appropriation, use, or distribution of water used in
irrigation, or any vested right acquired thereunder, and
the Secretary of the Interior, in carrying out the
provisions of this Act, shall proceed in conformity with
such laws, and nothing herein shall in any way affect
any right of any State or of the Federal Government or
of any landowner, appropriator,
or user of water in, to,
or from any interslate stream or the waters thereof."
(42 U.S.C. 6 383).
Based on the Congressional
the Federal
Power Act, adopted
of the Reclamation
hydropower
Remarks
Record,
obtain
Nelson,
their water
California
Power Act).
v. United
the Reclamation
The cases
States)
Act were
laws.
Rather,
-Co.
their
Portland
California
Another
United
States
Cement -Co.
v. United
part of Section
law.
56 Cong. Rec.
dicta
(disapproved
a contrary
later, and
in I920 to override
had passed
have control
laws sufficient
over water
9.
rights
v. Rio Grande -Dam & Irrig.
Oregon -Power Co. v.
supra.
8 is codified
in
result under
(1935) 295 U.S. 142, 55 S.Ct. 725,
States,
of
view at the times when both
already
always
8
of the bill that became
(1899) 174 U.S. 690, 19 S.Ct. 770, California
Beaver
'
boundaries.
state
until many years
the prevailing
to ensure that the states would
within
version
by Congress
acts were passed was that Congress
after Section
1040 (1920);
suggested
not decided
cannot be used to imply an intent
state water
rights under
containing
which
27 of
to require that developers
59 Cong. Rec.
9110-9115 (1918) (debate on an earlier
the Federal
that Section
in 1920, is patterned
Act and is intended
projects
of Senator
it is apparent
separately
at 43 U.S.C. 6 372.
The leading
case in the series
of its argument
is -First
of cases
Iowa Hydro-Electric
(1946) 328 U.S. 152, 66 S.Ct. 906.
decision
shows that the
Rather,
state water
right law was
distribution
Federal
provides
with
However,
state
the court based
that the Federal
Iowa
not a water
of dams.
27 of the Federal
laws regarding
of the -First
Because
its holding
(I
t
no
only
Power Act, which
Power Act does not affect or
the control,
appropriation,
use or
of water.
the First
Power Act.
27 saves state
Federal
involved,
in support
v. FPC
considerationwas
the regulation
9(b) and not Section
specifically
interfere
it involved
Cooperative
An examination
Iowa law under
right law.
on Section
cited by permittee
Iowa court
in dicta
In its discussion,
laws regarding
water
discussed
Section
the court observed
27 of the
that Section
rights from supercession
by the
???
Power Act.
Based on the above
jurisdiction
considerati ons, we cone lude that we have
in this matter
notwithstanding
to regulate
the concurrent
aspects
of the project
license
should be handled
exercise
by the FERC.
the Rock Creek
of jurisdiction over other
,.
Any differences
by complying
Project,
from the FERC
with the stricter
terms
and
conditions.
3.2
Permittee's
Permittee
Claim
of Riparian
argues that
has riparian water
Rights
it does not need a water
rights.
Therefore,
10.
-
right permit
permittee
apparently
because
contends
it
that the Board
should
not exercise
jurisdiction
over the Rock Creek
Project.
Permittee
:’
alleges
federal.Bureau
that part of the Rock Creek Project
of Land Management
Creek and that the remainder
contiguous
further
to Rock Creek
alleges
that
BLM land including
the downstream
Permittee
of the project
it has permission
riparian
never has been privately
that
permittee's
Therefore,
on land
Permittee
rights attach to it,* and that
owned.
part of the BLM land contiguous
allegations
requires
are true
is correct,
riparian
and that
it is our
rights to operate
a permit to appropriate
water..
‘I
First, the power generation
the hydraulic
b
n.
.J
to
owned.
lacks sufficient
permittee
to Rock
in fee by permittee.
of the FERC license
opinion that the permittee
on
in its FERC license to use the
all of the above factual
interpretation
the project.
is located
part of the BLM land has been privately
admits that the upstream
Rock Creek
Assuming
("BLM") land contiguous
that is owned
whatever
is located
entitlement
effect of the natural
of a riparian
landowner
flow of the stream measured
is to
by its
* We are unable to find any provision in the FERC's Order Issuina License
for this project (No. 3189-%03), issued April 29, 1983, which purports to
authorize the permittee to use whatever riparian rights may be held by the
Bureau of Land Management in the project area.
The only provision therein
referring to riparian rights is Order paragraph (B)iii, which defines certain
properties and rights which are necessary to the operation or maintenance of
the project as part of the project.
Order paragraph (B)iii in no way can be
If anything, its implication is
Rather, it is a definition.
read as a grant.
that water rights are a necessary part of the project, to be acquired by the
permittee.
11.
dI.lJl)
1 1‘0111 t.tll!
ti i $l(‘st.
Consolidated
Gold Mine
--
219, 287 Pac. 93.
I;0
i rll.
I)0
t.h(’ I owcst.
v. -Great Western
When water
Power
is to develop
of the water
from one level to another.
greater
is dependent
a water
Water
Code d 102.
to the measure
generate
right holder
hydroelectric
entitlement
Therefore,
of a riparian
has a possessory
land, but does not include
interest
Therefore,
if permittee's
has a riparian
fall of water
to
in the adjacent
it possesses
in which
riparian
factual
interest
as
point on the
adjacent
the drop attributable
the project
to any
lacks a
rights are not attached.
allegations
right to use the hydraulic
are correct,
energy
permittee
attributable
to the
in the creek on its own land and, if the FERC license
were correctly
rights attached
riparian
or to which
is correct
has a riparian
from the highest
riparian
possessory
supra,
the Rock Creek Project
of the stream
Thus, a
distance.
right to use water
land, to the lowest point where
segment
results from
only the right to the use of
riparian
intervening
in the fall
of the fall.
if Seneca,
only to the drop of water
stream where the project
inherent
The force that
landowner's
power,
power, the use made
that falls a greater
acquires
Seneca
(1930) 209 Cal. 206,
the force
on the distance
use can be made of water
However,
water.
and capture
t arid.
on h is
is used to generate
of the water
the fall of water
1~0 inl
interpreted
as allowing
permittee
to the BLM land, then permittee
right to use energy
that flows through
attributable
to use any riparian
also would
have a
to the part of the creek
the BLM land that once was held in private
12.
t
i.???
?
.ownership.j
of the.BLM
Even if riparian
land, which
believe
permittee
energy
attributable
Permittee
United
argues
States'
riparian
to dive,rt water
to this portion
that,
in private
upstream
to divert
its water
however.
allow
supply.
States
we
lacks
from its riparian
project.
Permittee
a riparian
The cited
landowner
use on riparian
property
bases its
to go
cases are
Most of them are cases
was to be put to consumptive
ownership,
not have a right to use the
can go upstream
cases which
portion
rights to use the hydraulic
rights or even if the United
for its hydroelectric
on several
to the upstream
of the creek.
even if it does
permittee
argument
distinguishable,
has not been held
must have appropriative
water
rights,
rights attach
in which
property.
the water
To the extent
3 Based primarily on the holdings in McKinley Bros. v. McCauley (1932) 215
Cal. 229, 9 P.2d 298 and Rindge v. Crags Land Cg1922)
56 Cal.App. 247, 205
Pac. 36, we have previously taken the posmnThat
riparian rights do not
attach to land until it is patented to private ownership.
In McKinley and in
Rindge, appropriative
rights which were initiated prior to the patenting of
certain riparian properties to private ownership were given priority over the
riparian rights appurtenant to subsequently patented lands upstream.
The basis
for these holdings was that "riparian rights do not attach to land held by the
government until such land has been transmitted to private ownership."
McKinley, supra, 9 P.2d 299.
,.
The question of whether the United States has riparian rights on lands which
have never been held in private ownership was the subject of a recent opinion
by the Court of Appeal, Third Appellate District.
(In the Matter of the
Determination of the Rights -of the Various Claimantstot-he-&T%%ofmlett
-Creek Stream .S*%-iin
Lassen County, California, No. 3 CIV '24355).Our
-ion
in the Court of Appeal was that the United States Forest Service does
not have riparian rights on its lands which never have been held in private
The Court of Appeal disagreed with our position, and held that the
ownership.
United States has riparian rights which lack priority over any other user of
water, whether. the other user is using water now or will use it in the future.
We are seeking review of this opinion.
B
.A
13.
.~____I-__
_._----.
_----
________--.
-..__--__ .- .._~.._._
.__..._.____
_._,
I
that a riparian
right holder
solely for convenience
hydraulic
believe
energy
in the water
for power
hydraulic
energy,
cases
reach this conclusion
have a water
because
addition
the energy
when water
add an incremental
nonriparian
of the stream
amount
property
is subject
lands, we
the riparian
its
to the land
is attributable.
is used
We
in generating
a force which
is developed
power,
can be
bec.ause of the
and the incremental
above the riparian
attributable
w ill
property
to the upstream
The use of the fall of water
property.
the upstream
of force
the
to use by' capturing
of land adjacen t to the stream,
of any part
wherever
right appurtenant
Such a force
to e lectricity.
topography
of his property
to the upstream
puts the water
used for the purpose of developing
converted
upstream
However,
apply.
purposes
it must
attributable
on the part of the stream to which
it is
water
and does not put it to use by capturing
that the cited
diverter
diverts
to appropriation
attributable
under Water
to
Code 6
1201.
3.3
Permittee's
Permittee
Claim
argues
has federally
Creek.
that
water
apparently
that
Reserved
Water
Rights
it does not need a water
reserved
Permittee
for contending
of Federal
rights to use the water
makes
t.he Roard
right permi t because
this argument
should
not exercise
flowi ng in Rock
as a further
jurisdiction
basis
over
the Rock Creek Project.
Permittee
correctly
Act, at 16 U.S.C.
points
6 818,
out that Section
includes
14.
24 of the Federal
the following
language:
Power
it
"Any lands of the United States included in any proposed
,pro.ject under the provisions of this subchapter shall
from the dat.e of filing of application therrJfor be
reserved from entry, location, or other disposal under
the laws of the United States until otherwise directed
by the Commission or by Congress.
Notice that such
application has been made, together with the date of
filing thereof and a description of the lands of the
United States affected thereby, shall be filed in the
local land office for the district in which such lands
are located."
Permittee
reserved
interprets
water
right.
held that Section
rights.doctrine
project.
to exist
to accord
with
See, e.g., Federal
832.
Thus,
to reserve water.
Section
24 of the Federal
of the Act.
with Sections
Section
reserved
under
:J
a federal
case has ever
with the reserved
water
rights have been
project,
24 can itself
be read in context
it must
with' other
in this case be re.?d
9(b) and 27 of the Act.
9(b) provides:
"Each applicant for a license
s.ubmit to the commission --
Power
(1955) 349 U.S.
exists that Section
Power Act must
Particularly,
v. Oregon
implied
the reservations
laws other than the Federal
no holding
water
rights to a hydroelectric
a hydroelectric
***
~
water
permittee
in a reported
in combination
Power Commission
operate
provisions
no court
reserved
that
land were made
435, 75 S.Ct.
')
24 operates
in connection
24 as according
However,
To the extent
of federal
Act.
Section
under this chapter
shall
"(b)
Satisfactory evidence that the applicant has
complied with the requirements of the laws of the
State or States within which the proposed project
is to be located with respect to bed and banks and
to the appropriation,
diversion, and use of water
for power purposes and with respect to the right
to engage in the business of developing,
and distributing power, and in any
transmitting,
other business necessary to effect the purposes of
a license under this chapter."
(16 U.S.C. 6
802.)
More importantly,
Section
Section
proponent
must
that nothing
interfering
these
acqu re water
in the Federal
sections
hydropower
9 b) and 27 clear ly provide
with
that Section
24 overrides
As we found above
is patterned
United
water
in finding
the plain meaning
Since all three
of
rights to a
of these
sections
act, there can be no argument
3.1, Section
27 of the Federal
8 of the Reclamation
comply with state water
for its reclamation
Act of 1902.
the U.S. Supreme
projects.
16.
-
as
the other sections.
Act section,
States must
Thus,
24 does not accord water
in the original
on Section
the Reclamation
right laws.
of the FERC.
together
that a hydropower
rights under the laws of the state, and
is that Section
were enacted
as
Power Act is to be construed
state water
licensee
:\-
'27 provides:
"Nothing contained in this chapter shall be construed
affecting or intending to affect or in any way to
interfere with the laws of the respective States
relating to the control, appropriation, use,.or
distribution of water used in irrigation or for
municipal or other uses, or any vested right acquired
therein."
(16 U.S.C. b 821.)
Together,
a’
Court
Power Act
Regarding
held that the
f’
right laws in obtaining
California
v. United
States
I
-.
4
‘0
(1978) 438 U.S. 645, 98 S.Ct. 2985.
a
interpreted
in the same way as Section
it must be construed
it copies,
water
right laws, including
Based on the foregoing
have federally
requirement
discussion,
reserved water
that permittee
QUESTIONS
4.1
Burden
if Section
compliance
Act, which
with
state
19259 and 19260.
we conclude
that permittee
rights that would
obtain
27 is to be
8 of the Reclamation
as requiring
Permits
rights under the California
4.0
Thus,
eliminate
does not
the
and comply with appropriative
Water
water
Code.
OF PROOF
of Proof
Permittee
argues that the Department
requested
that the bypass
be amended,
of Fish and Game,
flow requirements
has the burden
of proving
in Permits
that the bypass
since
it
19259 and 19260
flows should be
amended.
For the
reasons
Department
below, we conclude
each have the burden
own proposals
burden
stated
for a minimum
by a preponderance
bypass
permits
jurisdiction
approved
reserving
was imposed
issuance
flow.
permittee
and the
the facts to support
Each party must meet
their
its
of the evidence.
This case comes to the Board
permittee's
of proving
that
for decision
jurisdiction.
by the Board
of the permits.
on
a condition
in
The reservation
in Decision
As provided
1596 when
of
it
,.
in Water Code 6 1381,
17.
._
-_-_
.~..._._
_--_--.
_.I__-____--
._.-..-.~.---
__._..
_.^._
_^..
--..-
----
"The issuance
to be extent
of a permit
gives the right to take and use water
and for the purpose
The reservation
of jurisdiction,
flows
set forth
in Term
Creek
at natural
The bypass
second
flow
was
from October
required
bypass
finding
7, pages 8 and 9.
instream
respects,
could
further
are set forth
the flow requirements
set forth
(the Department
matched
to the
Federal
Energy.Regulatory
Because
no valid basis was provided
current
minimum
flow
reserved
Commission.
in Permit
requirements,
18.
important
Term
jurisdiction
These
See Decision
agreed that
flows
to change
flows were
issued by the
1596, pp. 8-9.
1983 hearing
permittee's
16.
cfs minimum
in the license
at the
1596 at
no valid basis existed
study.
requirements
the
found that the
in several
with the 11 cfs/l5
if the Board
flow
in Decision
of Fish and Game)
after the further
interim
feet per
by the permittee's
of the deficiencies
be approved
study,
17(a).
and for,setting
the Board
was deficient
requirements
the protestant
the project
pending
flow
to Term
30 and 11 cubic feet per second
to the Board
at the 1983 hearing
for the minimum
results of a
16 are for 15 cubic
To summarize,
and that because
pursuant
of jurisdiction
requirements
flow study presented
predecessor
However,
flow
to conduct
the
of Rock
30.
for the reservation
current
resources
after evaluating
April
September
is to amend the bypass
the fishery
in Term
1 through
from May 1 through
The reasons
levels
requirements
in the permit."
in Term 17(c),
16 to protect
preproject
study the permittee
allowed
only
for the
predecessor
failed to
meet its obligation
effects
to provide
how much water
ation after fishery
wwpr
to the Board concerning
on fish, under Water
of the appropriation
failed to demonstrate
information
actually
Code 4 1260(j),
is available
needs are satisfied.
the
and
for its
(See Water
Code
6 1243) .
~
.
.”
Rather than deny the applications
or defer
fishery
study was done, the Board
subject
to terms
the Board
and conditions
required
By approving
the project,
delays. that would
having.to
a further
decided
Terms
study
the Board
be involved
to approve
including
fishery
a decision
wait for its permit while
the application
16 and 17, in which
and reserved
relieved
in either
on them until a
jurisdiction.
the permittee
reapplying
of the
for permits
it did the additional
or
fishery
study.
Since the Board was satisfied
for the project
riparian
matter
after the bypass
vegetation
the question
protection
require
Rather,, it was a question
project
would
bypass
affects
project
project
the amount
generators,
(see finding
of water
made the decision
notwithstanding
the uncertainty
of flow the
that the amount of the
through
the
the amount of energy the
of money
to proceed
19.
the basic project.
that may be passed
and the amount
1596),
flows was not a
affect the amount
affects
and
6.a. of Decision
in approving
(We recognize
he available
for fishery
to set the bypass
that would
and thereby
water would
of some flows
a delay
have to bypass.
will produce
permittee
sufficient
of the level at which
that would
project's
that
with
it will earn.
construction
However,
of the
as to the final bypass
flow.)
This proceeding
revocation
is not, as permittee
proceeding.
suggests,
a disciplinary
Such proceed
ngs are conducted
Code 66 1410 et seq. and 1825 et seq
This proceeding
exercise
of reserved
reserved
jurisdiction
appropriate
Resources
a proceeding
of the original
conditions
of water
(1986)
for the purpose
rights
in response
See Water
this proceeding
permittee's
17:
an
Exercises
of
are
See United
182 Cal.App.
States
3d 82, 227
water
of adjusting
does not threaten
Under Term
right.
exists
action
may be taken
contained
16, permittee's
fishery.
authorization
and remains,
The permit
after a fishery
clearly
to its conditions.
fishery
is protected
study.
to take and use water
therein,
subject
one has a vested
Water
and the permittee
20.
Audubon
subject to
shows that
and that
The permittee
has
takes the permit
Code 46 1381, 1391.
(See National
to
beyond the
by the public trust doctrine,
right.
and changing
in fact to revoke a part of
--
as to the exact needs of the fishery
no rights under the permit
authorizations
the terms and
to new information
and use water was from its inception,
uncertainty
is a continuation
Code 41394.
the needs of the Rock Creek
further
Board,
rights.
on reserved jurisdiction
proceeding,
circumstances.
divert
is instead
terms and conditions
on of water
Control
Term
under Water
161.
By its nature,
Further,
on under Permit
to amend permit
in the admi nistrat
v. -~
State Water
Cal.Rptr.
jurisdict
or
Also, the
against
Society
which
no
v. Superior
Court,
-Co.
33 Cal.3d
(1897)
Thus,
419, 658 P.2d 709
116 Cal.
no threat
397, 48 Pac.
exists
People
(1983);
374;
v. Truckee
and Decision
that the permittee
Lumber
‘,.c,
"'i
1596, page 8.)
may lose something
to which
it has a right.
\‘.
Permittee
proof
is generally
correct
in administrative
public
policy
proceedings.
considerations
CEEED v. Calif. Coastal
-306, 118 Cal.Rptr.
including
fisheries
However,
Zone Conservation
the public
66 386, 1243, 1260(j);
Therefore,
trust doctrine,
preproject
Further,
Audubon
public
is adequate
affirmative
policy
bypass
Water
Lumber,
the fishery
Code
supra.
To
is
protection
or destruction
11 cfs/l5
of
flow requirement
the greater
considerations
to prove that the
to protect
of water.
and Truckee
favor the limitation
of the
favor putting
the
cfs bypass
flow
at the natural
level.
s ince the bypass
determined
(1.974) 43 Cal.App.3d
favors the protection
with the appropriation
National
on the permittee
requirement
interest.
In this case, public
542.
of proof that the current
for the fishery would
burden
rule varies when
a particular
Comm'n
inadeqtiate on the party who seeks to provide
fishery.
this
protecting
522, 156 Cal.Rptr.
in connection
place the burden
favor
party has the burden of
315, State v. City and County -of San Francisco
(1979) 94 Cal.App.3d
policy,
that the moving
flow requirements
and were established
case in the instant
to prove the correct
bypass
provisionally
proceeding
flow.
21.
were
Having
not finally
in Decision
1596, the
remains with the permittee
failed
initially
to satisfy
“’
all of the requirements
burden
of proving
of an application,
its assertions
it did not prove before.
the appropriate
that would
protect
The Board
prove that .the fishery
Finally,
the fishery's
needs which
in Decision
h'as the
1596 determined
flow for Rock Creek would 'be the bypass
the fishery
under the 11 cfs/l5
still
regarding
in Rock Creek at the preproject
1596, page 8, finding
(See Decision
must
bypass
the permittee
7.b.)
Consequently,
will be protected
that
flow
level.
c,
.
permittee
at preproject
levels
cfs; flow regime.
we note that
the Evidence
Code at 6 500 provides
that:
"Except as otherwise provided by law, a party has'the
burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for
relief or defense 'that he is asserting."
Since
establishing
appropriate
burden
the Department
4.2
cfs
thqt this
to permittee's
flow requirement
case, permittee
is the appropriate
requirement.
of Fish and Game has the burden
flows
bypass
it recommends
of proving
as the
has the
Likewise,
that the
are appropriate.
of .,Proof
Standard
Permittee
asserts
', that of clear
that the standard
and convincing
argument, is founded
of the theory
v,. yState
that
of proof
in this case should
proof to a reasonable
on the theory
right to the use of water,in
j
States.
cfs bypass
11 cfs/l5
flow is essential
of proving
30 cfs/60
the
that permittee
Rock Creek.,
Resources
This
has a vested, property
Permittee
cites
insupport
‘.
it has a vested <right a general
Water
certainty.
be
Control
Board,
dictum
supra,
in United
at 182
f.
. 22.
a
Cal.App.3d
101.
However,
does not explain
explain
extent
when
;?
on either
only the general
to use water.
the extent
of a water
rule and
Nor does it
right or the
of vestedness.
acquisition
Supreme
states
rights are acquired
the limitations
A permit to divert
I
the dictum
and use water
of an appropriative
Court explained
is merely
water
in Temescal
permission
right.
Water
--
to commence
the
As the California
Co. v. Department
of Public
--
Works:
"A permit itself confers no appropriative
rights but
,fixes the priority of its recipient over subsequent
appropriators, Water Code 66 1450-1456; it expressly
provides that its issuance is subject to vested rights."
Temescal Water Co. v. Department of Public Works
(1955)4Cal.3d90,
280 P.Zd 1. -
Subsequently,
Cal.App.Zd
in Eaton v. -State Water
Rights
409, 340 P.2d 722, the Court
and elaborated
Board
(1959) 171
of Appeal made this same point
on it as follows:
"The final procedural step in perfecting a water right
is the issuance of a license as prescribed in sections
1600 through 1677 of the Water Code.
The issuance of a
license is merely confirmatory of a right acquired -by
use in accordance with the permit.
"On the issuance of a permit the permittee has the right
to take and use the water to the extent allowed in the
permit."
(Emphasis added.)
Also see Madera -Irr. Dist.
c
Cal.Zd
681; Hutchins,
108-112; Water Code
v. All Persons
The California
Law of Water
46 1455, 1600-1651.
i
23.
(1957) 3D6 P.2d 886, 892, 47
Rights
(1956), pp.
Thus, an appropriative
control
and putting
to appropriate
Division
the water
the amount
use within
the terms
It is the
rj 1610.
claimed
amount
and in accordance
of water which
responsibility
of water
which confirms
of the
permit.
pursuant
evidence
in the record that permittee
permits,
perfected
Since a permit
appropriate
existence
a vested
right.
to start
of issuance
permittee's
permittee
acquiring
to take
its
in its permits.
right to
the
does not have
appears to have just the bare
Under Water
Code 4 1455, the
it continues
as of the date of the application
and use a specified
24.
is no
up to the limits of
that permittee
is limited:
the permit.
there
in the record evidences
a right.
of a permit
priority
water
of a vested
right, we conclude
In fact, permittee
an appropriation
has, since it acquired
is not evidence
else
to show that the
Further,
less than that allowed
and nothing
water,
of a vested
permission
effect
legally
Code
'Water 'Code 5 1610.5.
19259 and 19260.
a right to appropriate
use
to beneficia
Water
of the appropriator
of water
or for an amount
Code,
the right to
h'as been applied
In this case, no license has been issued confirming
its permits
with a permit
with the Water
has been appropriated.
to Permits
under
has been put to beneficial
right license
and conditions
by taking water
use in accordance
After the water
issues a water
appropriate
right is acquired
it.to beneficial
2, Part 2.
the Board
water
amount
of water
the
and allows the
for the life
of
Even if, for sake of argument,
sense of having
perfected
permittee
a water
had a vested
right,
permittee
have no vested
right to take and use water
trust
National
values.
Audubon,
supra,
right in the
nevertheless
needed to protect
at 189 Cal.Rptr.
would
public
363-366;
L.
United
I
States v. -State Water
Cal.App.3d
.‘../
106.
the fishery
Since,
Resources
Control
as we have noted
is protected
by the public
Board, supra,
above
trust,
at 182
and in Decision
1596,
there can be no vesting
of a right to harm it.
Generally,
vested
the proper standard
right is involved
Ettinger
Cal.App.3d
853, 185 Cal.Rptr.
vested
v. -Board of-Medical
as fundamental
physicians,
lawyers
rights.
compensation
subjqct
permits
vested
However,
likewise
Resources
Also,
rights.
id.
evidence
it appears
Professional
employment
Control
standard
We conclude
review.
Board
Assurance
(1982)
135
that few matters
licenses
of
have been held to be fundamenta.1
continued
are subject
no fundamental
of the evidence
Quality
have not been held to have this
Ettinger,
substantial
601.
and dentists
to the preponderance
review.
in cases where
is the preponderance
standard.
qualify
of proof
and worker's
stature,
and substantial
that
changes
of America
(1974) 42 Cal.App.2d
evidence
in water
to the preponderance
See Bank
---
and have been
standard
right
and
"
v. -State Water
202, 116 Cal.Rptr.
770.
*
t
5.0
HYDROLOGY
’
OF ROCK CREEK
Three different
.*
estimates
to 'depict the hydrology
Project.
have been made
of Rock Creek's
a part of the hearing
watershed,
The three hydro logies esti mates
25.
.
--
are
record
for the Rock Creek
(1) the September
1981
estimated
hydrology
synthetic
flow record
by Ott Water
Engineers,
synthetic
flow record
by Ott Water
Engineers.
Probably
the most
by Sierra
accurate
long-term
to develop
probabilities
statistical
exists
However,
have commissioned
Therefore,
studies
Tn the first study,
annual
precipitation
and then
long-term
at the
record of flows
and its predecessor
developed
the percentage
month on similar
streams
While this
dramatically
Sierra
in this
from other streams
accuracy
of which
We cannot
annual
annual
and then applying
estimate
actually
compared
determine
these percentages
of average monthly
flow-duration
to extrapolate
Therefore,
26.
runoff by first
each
to Rock
runoff,
varies
d.ata for Rock
the shape of flow-duration
from the evidence
of Rock Creek.
monthly
Sierra
runoff that occurs
and then used one observed
is unknown,
runoff.
occurs as rainfall
To develop
maps to determine
a ratio of runoff to
of average
of average
area.
Hydrotech
average
estimates
provides-an
runoff seldom
'average"
used isohyetal
estimated
computed
computing
typical
the watershed
flow occurrences
the permittee
Hydrotech
precipitation,
then
Creek,
of a watershed
based on other methods.
Sierra
Hydrotech
Creek.
1986
1981 Hydrology
September
average
the hydrology
of future
1985
and (3) the April
record of flows within
no continuous
for Rock Creek.
(2) the October
way to predict
is to use a continuous
same location.
5.1
Hydrotech;
curves
flow on Rock Creek,
the
a curve for Rock Creek.
that this data 1s accurate
we find that the only useful
or
portions
of this hydrology
are the average
annual
and monthly
runoff
figures.
5.2
Hydrologies
Based on Synthesized
The second
and third hydrologies
by comparing
measured
flows on other
correlation
by Ott Water
Engineers
flows on Rock Creek with
streams,
to develop
correlation
This method
are similar,
is considered
and if their
both were made
long-term
gage-recorded
factors.
The
factors were then used to synthesize
for Rock Creek.
basins
Data
a long-term
adequate
characteristics
record
if the two stream
do not differ
signif.icantly.
The October
the April
Table
1985 synthetic
1986 synthetic
1 compares
hydrology
hydrology
the major
differences
between
questionable
whether
representative
5.2.1
April
and
used data from Forest Creek.
of each of these watersheds
Table
the effects
on hydrology.
the watersheds
the resulting
2 summarizes
The tables
show that the
are significant.
synthetic
of
Therefore,
hydrologies
it is
are
of what will occur on Rock Creek.
1986 Hydrology
For the April
methodology
1986 hydrology,
for calculating
(i.e., the 14 measured
records
‘!Y
Creek
characteristics
with the Rock Creek watershed.
these characteristics
used data from Oregon
did not present
the synthetic
its
flows from the raw data
flows from Rock Creek and the gaged streamflow
from Forest Creek).
which the synthetic
permittee
Consequently,
flows were developed.
27.
we do not know the means by
Additionally,
we have been
adeys
yseq
I
t_!!w
Old
____________________-----
I
______________________
yaaa
_________________________
i_________________________
qsafi 07 qs12a
I
______________________---
qsam 03 pfpa
I
yzpos
oq yalou
_______-____________----‘73
'73 OS6'Z
I
‘xi
Z9L’P
____________________----'75 ooc'1:
______________-____-----'?ur Tc7:x 'TN OT
OEZ’Z
____________________-----
UXOlJ
_______________----_--
.
??
wTaI
uoT~e~ua?zo
Z
I
____________________--
uogenaTa
umyxeur
________-_____________
uoT7enaIa urnurpyux
-________-----________
rl?bua-[:
x WPTM
I
I______________________I
eazy
sa1-p ??
bs 89
=========================l======================l
yaaz:3 qsa;roJ
yaa23 uobalo
I wwaw4
/ wauam
yaam
~308
I
======================================================================================================
salrur*bs 8'OZ
i- ---_____1________--_-_--I_-_------_~~~__________-__
~____---------------------
sDgsyzraqaezcey3
u~sag JO uosTzeduxo3
7: 3WYJJ
I
TABLE 2
(Effect of Uatershed Characteristics
on Hydrology)
CHARACTERISTIC
EFFECT
Basin Shape:
Forest Creek
Oregon Creek
Rock Creek
Large, heart-shaped basin with
Long, narrow basin with little
significant channel storage
channel storage.
capacity.
concentrated quickly to produce
Storm induced runoff
Long, narrow basin with little
channel storage.
Runoff
concentrated
Runoff
quickly to produce
attenuated reducing maxin-um flows
high peak flows that drop off
high peak flows that drop off
with low flows slightly higher and
quickly after storm passes.
quickly after storm passes.
Fairly high elevation for
Fairly high elevation for
of longer duration.
Elevation:
Predaninately
below the snow-line.
Little inpact from snomelt.
Orientation:
Flows
lattitude.
Significant amounts of
Significant amounts of
snowmelt extend flows after winter
snomelt
the storm season ends.
storm seascn ends.
storm season ends.
North-South orientation.
Winter
storms move from the northwest
to
East-west orientation.
extend flows after winter
East-west orientation.
Winter
storms move from the northwest to
Uinter
storms move from the northwest to
the southeast and would tend to stay
the southeast and can pass quickly
the southeast and can pass quickly
over the basin longer producing more
over the basin if not stalled;
over the basin if not stalled;
effective precipitation and runoff.
producing
producing
less effective
precipitation
Geographic Location:
lattitude.
tend to decrease rapidly as soon as
Located near the southern
the northern Sierra.
limit of
Not all winter
storms pass over this basin.
50 miles north of Rock Creek.
less effective
precipitation
and runoff.
This
and runoff.
30 miles south of Rock Creek.
This
basin is located in the heart of
basin is located in the central
the northern Sierra and most winter
Sierra and many storms either miss
storms pass directly over the
it or produce
basin.
precipitation.
little effective
unable to reproduce
the methodology
synthetic
flows
Permittee
has compared
the April
show an extremely
high degree
Board's
high.
Therefore,
must
for Rock Creek.
However,
flow in Rock Creek
unresolved
accuracy
inconsistency
of the hydrology
has failed to demonstrate
representative
October
exists
However,
correlation
a maximum
Therefore,
Applying
flow of 7,257
hydrology
cfs
shows a
at least one
in the synthesized, hydrology,
cannot
the
factors
a flow record:
1986 synthesized
of 999.9 cfs.
is
and the
Permittee,, therefore,
be verified.
that the Forest Creek
synthetic
hydrology
of Rock Creek.
1985 Hydrology
Permittee
did not provide
much evidence
hydrology
based on Oregon
Creek.
synthesis,
no information
calculating
5.3
the monthly
the April
flows
to verify the
by the parties.
staff calculated
14 actual
The correlation
staff has attempted
have used to synthesize
for December,
flows with
and synthetic
of correlation.
staff was able to calculate
the factor
maximum
The actual
flows using the data supplied
that permittee
5.2.2
1986 synthesized
from Rock Creek.
synthetic
of the
based on the data.
flow measurements
unexpectedly
to verify the accuracy
Compiled
All. three
the synthetic
Synthetic
the synthetic
Like the Forest Creek-based
was provided
regarding
the methodology
flows.
Hydrol:ogy
hydrologies
limitations.
regarding
Because
presented. for Rock Creek have definite
of the lack of evidence
30.
to support
them, we
for
is
*
‘.
cannot with any confidence
lo
that have been presented
However,
(
to establish
Notwithstanding
hydrologies
bypass flow requirements.
all three of the hydrologies
fall within
that none of the hydrologies
a range.
standing
alone can
c-
reliably
j
use any one of the synthetic
be considered
three when compiled
;Y”
provide
shows that the actual
Tables
5.4
hydrology
hydrology
that the permittee
for Rock Creek,
requirements
reservation
of jurisdiction
in the bypass
the party providing
documentation
ADEQUACY
.$
evidence
in
1 and 2.
is based
on several
sets of data,
will want
to develop
a more exact
Therefore,
STUDIES
28, 1986 was,
study asrequired
to also provide
PERFORMED
in the Water
we will
is
require
sufficient
RY PERMITTEE
Right Hearing
performed
17a and 17b?"
31.
the
the data.
"Has the permittee
by terms
flow
If a change
flow based on a new hydrology,
so that we may verify
it is
19259 and 19260 to amend the
in the permits.
the new hydrology
OF THE FISHERY
the bypass
we will continue
in Permits
.*
a
the
This range is depicted
exists,
set forth
The first key issue listed
March
substantial
for use in reevaluating
in the future.
flow requirements
requested
6.0
hydrology
which
hydrology,
Jurisdiction
Since the compiled
possible
Rock Creek's
a range within
3 and 4 and in Figures
Reserved
bypass
to approximate
Notice dated
the fisheries
habitat
TABLE 3
ROCK CREEK COMBINED HYDROLOGY
Average Monthly Flows (cfs)
Low
Month
High
Ave.
=====~==================================================================
Nov
Dee
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
8ep
10.8
38
78
147.1
173
202.7
172.1
71
29.1
10.9
4.9
5.9
20
78
120.9
250
215
232
217
94
46
31
22
17
16.3
51.7
101.3
183.4
191.2
212.9
194
85.3
38.4
20.6
14
12.3
Ann. Ave.
82.7
109.7
92.8
Ott
TABLE 4
ROCK CREEK COMBINED HYDROLOGY
Annual Percent Exceedence Curves
========================================================================
Percent
of time flow
exceeded
Flow (cfs)
__-_________________~~~~~~-~~~~~~~~~~~~~~~~~~
Ave.
Low
High
-__-----_--___----__-_____----_~----_________---__~---__~------------_____-__-----_--___---___------~~____----__---------___-------~~~-~
20
25
30
35
40
45
50
55
60
65
70
75
80
85
90
95
100
95
70
55
45
38
30
25
21
17
14
10
8
5
4
3
2
0
177
134
118
86
67
53
44
36
30
24
20
18
16
14
13
9
0
__________________________________________
___________
32.
134
115
82.3
63
50.3
40.3
33.7
28
23.3
18.7
15.7
14
11.7
10
8.7
6
0
____________
---
"
FIGURE 1
Rock
Cr.
Combined
Hydrology
300
I
I
__I
280
-“:- 1
-__
260
-i-.-_.--.f_-___----_---A
-.I_---A__
. ._
___
I
1
i
-_-_-I_----
I
/
I/. ..---2
I
I
.I
___l___..-
I
I
I
/
I
_A._-I
I
/
I
240
220
200
180
160
140
120
100
80
60
40
20
0
act
Nov
Dee
Jan
Feb
Mar
Apr.
May
Jun
Jul
Aug
Se P
i
FIGURE 2
Rock
Cr.
Combined
50
55
_’
Hydrology
180
170
160
150
140
130
120
110
A
ul
vW
P
.
7 00
v
V
90
z
0
6s
80
70
60
so
40
20.
25
30
35
40
45
% of
,(s
A
time
flow
60
65
70
75
80
85
90
exceeded
1.
.
s
95
100
b
6.1
Compliance
With Data Collection
We find that Permittee
that further
that Variances
in permittee's
did,not
the purposes
Therefore,
6.2
study.
Appropriate
Analytical
study
provides
types
estimates
of methods
permittee's
current
permittee
the "Raleigh"
should
for Habitat
Modeling
in Rock Creek
is a habitat modeling
fish habitat
at different
study that
flows.
that should be used and the
that should
Preference
in this case --
Criteria
study ordered
representatives,
by Decision
after observing
representatives,
curves.
to use a different
The Department
be used for Rock Creek.
criteria.
35.
the stream
trout depth and,
Subsequently,
set of criteria
the
known as
argues that the Bovee curves
The primary
lies in the velocity
1596,
agreed with the
to use a set of rainbow
known as the "Bovee"
decided
TWO
be used.
of the fishery
curves.
sets of criteria
data for
further
criteria
representatives
criteria
to collect
preference
with the Department's
velocity
17a and 17b
requirements.
permittee
by the Board
and
are in dispute
predecessor's
Departmqnt's
not he useful,
from terms
term
required
modeling
Depth and Velocity
Upon commencement
the data
for habitat
technique
jointly
of the permit
of available
the rainbow trout
modeling
would
data collection
Method
required
collected
data collection
we will not require
the'fishery
The IFG-4
6.2.1
has substantially
for the study,
impair
Requirements
curves
difference
between
thee two
for the two sets of
The Raleigh
water
curves
velocity
generally
than
is indicated
curves
are more
Sierra
than the Raleigh
conditions
indicate that
in agreement
an adult
rainbow
by the Bovee
with habitat
curves.
preference
curves to predict
rainbow trout will select.
biologists
on the observations
with
the subject
same geographical
area.
have had more extensive
rainbow trout
geographical
fishery
witnesses.
and three years
hearing
year's
of permittee's
experience , respectively,
experience
Permittee's
experience
stream
at all times
with it.
valuable.
more experience
with
also the experience
Sierra where
proceedings.
biology
of the year
with the,Rock
streams
in that
fishery
biology
witnesses
had at the
three years,
and one of them had less than three
biologist
of the Department's
to observe
predictions
witnesses
Rock Creek than the permittee's
witnesses
in.the
judgment
to great weight
supra,
about
it is
but
area of the
than that of
in matters
in the Board's
at 116 Cal.Rptr.
a
had much
witnesses,
is much more extensive
The Department's
Bank of America,
--
Creek
each had had less than a
before making
is entitled
in the
for the Department
four years,
Not only have Department's
witnesses.
fish life
streams
with the stream when the
For a fisheries
Rock Creek is located
the permittee's
protecting
witnesses
with the stream,
months'
especially
of other
approx imately four years,
commenced.
of fisheries
witnesses
The Department 's four fishery
time of the hearing
a parti,cular stream
and longer term experience
area than have either
The Bovee
data from the
stream and with similar
and the fisheries
lower
Much of the selection
and experience
The fisheries
prefer
the flow and,depth
of one or the other of the two curves to analyze
is dependent
trout
778-779.
Of
The'opinions
of the Department's
witnesses
closely
fit the situation
in Rock Creek
habitat
study on Deer Creek by Moyle
that the Bovee curves more
is corroborated
and Baltz
by a fish
(permittee's
P-61) ,',which is similar to Rock Creek in fish assemblage
temperature
evaluation
closely
the Bovee
characteristics
adult curve,
fish, and more closely
neither
of Rock Creek
curves
Both of these
proposed
fry curves
support
set of curves
for all life stages.
are more applicable
support
to Rock Creek,
curve for
fry curve.
completely
The Bovee
to
data more
neither
the Raleigh
appears
and
are important
Deer Creek
of flow and depth preferences.
support
juvenile
Thus,
regime.
exhibit 4,
representative
adult and juvenile
and it is uncertain
which
are more applicable.
i
6.2.2
Modeling
Permittee
modeling
technique
Technique
used the IFG-4a modeling
technique
specified
produces
results
u'sing'the Rock Creek, data.
I
the I'FG-4a modeling
7.0
BYPASS
rather than the IFG-4
in the permits
comparable
at term
to the IFG-4
Therefore,
we will
17a.
The
modeling
IFG-4a
technique
accept the results of
technique.
FLOW REQUIREMENT
Permittee
forth
technique
argues that the provisional
in the permits
15 cfs from October
fishe.ry resources
at term 16, 11
through
April,
bypass
requirements
cfs from May through
are sufficient
of Rock Creek at natural
37.
flow
September
to protect
preproject
set
levels.
the
The
and
Department
February
argues that
bypass
flows of 30 cfs from October
and 60 cfs from March
the fishery
resources
(1) whether
a "pinch
population
during
that reduction
at natural
period"
the lowest
natural
of flow and habitat
fish population
needed to protect
Creek should
levels.
The issues
the fishery
flow period
in the summer,
of the natural
should
of year
so
by the
affect the
"pinch period";
be used to determine
resources;
(4) which
are,
to reduce the rainbow trout
level would not adversely
method
be applied;
are needed to protect
during other times
more than the effect
the Tennant
September
preproject
operates
project to the "pinch period"
(2) whether
through
through
the flows
(3) how observations
fishery modeling
analyses
of Rock
should be
used.
7.1
Fishery
Habitat
We have assumed
the
"average"
Modeling
for purpose
values
flows in Rock Creek.
compared
the results
the Bovee
7.1.1
Analyses
of evaluating
listed,in
Table
Using these
of the
sets of criteria
the mode ling analyses
3 approximate
that
the:.mean monthly
flows, the Board 's staff has
IFG-4a modeling,
applying
the Raleigh
to the results.
Effect of the Two Sets of Minimum
Flows on the Adult Life Stages
The adult life stage
in Rock Creek because
stage is the object
is important
of angler
harvest,
and because
adults to exist to spawn
and perpetuate
the Bovee or the Raleigh
curves the minimum
Department
fishery
flows
preserve
recommended
more
and
by permittee.
38.
habitat
it is necessary
the population.
flows
the adult
Using either
recommended
for adults
for
by the
than the minimum
c,.
0.
Q
0
7.1.2
Effect
of the Two Sets of Minimum
Using either
!
c,
provide
flows
by the permittee.
recommended
applicable
more habitat
to Rock Creek,
Department's
minimum
recommends.
Although
recommended
the Raleigh
in some months,
juvenile
habitat
actually
Effects
would
the minimum
Tosses
preserve
flows
Department's
However,
minimum
t,han the permittee's
of criteria
different
7.1.4
Effects
juvenile
are contradictory
flow
of
Further,
the
cause severe
Flows on the Fry Life Stage
flows
recommended
by the permittee
the Raleigh
flow recommendation
minimum
enhance
curves would
all of the preproject
recommended
of habitat.
would
at these flows.
curve shows that the minimum
Department
that the flows
life stages.
of the Two Sets of Minimum
The Bovee
by the
we find that no enhancement
by the Raleigh
is
flows permittee
curve suggests
would occur
losses to the adult and spawning
7.1.3
is protected
and the Department
habitat
than the minimum
Under the Bovee curve, which
flows, than by the minimum
by both permittee
supported
for juveniles
more habitat
juvenile
low flows
Life Stage
the Bovc~c~or Hnlrriqh curvc~s, the mi n imum t I ows recommend
by the. Department
more
.
Flows on the Juvenile
fry habitat,
would
and that
cause large
curve shows that the
would
provide
flow recommendation.
with
by the
less habitat
Thus, the two sets
regard to the effect
on fry of the
rates.
of the Two Sets of Minimum
Flows on the Spawning
Life Stage
:>
Both sets of criteria
‘h
minimum
flows
show reductions
recommended
in spawning
by both permittee
39.
habitat
under the
and the Department.,,
tiowcvpr, thp reductions
minimum
flow
habitat
under permittee's
spawning
recommendations,
habitat
tion for minimum
Applicability
The primary
of adult
ecology
factors
may change
months
about
before
August
50 percent
required
occurs,
would
flow
period.
recommendation
and October
is
currently
We have no
that they do not emigrate.
other
however,
provide
is complex,
the permittee's
less habitat
during the alleged
recommended
has indicated
a higher,bypass
a willingness
minimum
for adult trout
natural
pinch
of 11 cfs and 15
flows
in al 1 norma 1 and above-normal
If
and limiting
than streamflow.
impact on the adult trout
of all years.
(permittee
recommenda-
the spawning
those months.
on factors
perm ittee's
cause an adverse
In
in fact cause adult trout to emigrate
is available
As a result,
cfs would
period
recommendations
of a fishery.
of
in Rock Creek to those
such as Rock Creek
depending
in May and June than
period.
minimum
September
during
flows
in streams
that a pinch
bypass flow
during
nor do we have evidence
Fishery
Maintenance
the Department's
rainbow trout
can find habitat
from Rock Creek;
show no spawning
Period Concept
low flows in August,
that low summer
curves
recommendation.
be followed
basis for the permittee's
adults which
under the permittee's
to the preservation
flow should
limit the population
Assuming
flow
for spawning,
of the Pinch
that naturally
evidence
minimum
habitat
ar? greater
and the Raleigh
is essential
order to preserve
7.2
in habitat
population
water years;
in the
i.e.,
flow of 17 cfs were
to accept
a 17 cfs
r”
40.
bypass
flow), the adult trout
in above-normal
could
remain
whereas
each year,
of a fishery.
population
of 30 cfs and 60 cfs will better
population
7.3
if the pinch concept
Applicability
The Tennant
of the Tennant
method
flow of the stream
flow.
It is applicable
the natural
herein
supports
The
of the fishery
conclusions
important
life stages
of the
recommendation
fish
such as Rock Creek
a minimum
specifically
of trout.
41.
in which
only
flow
it was used
have to be calibrated.
i
However,
only as a starting
point in
methods.
modeling
under the Tennant
instream
downstream
than
minimum
of the mean
the needed minimum
other analytic
habitat
to determine
It uses percentages
reached under the Tennant
bypass ,flows derived
incident
the preproject
use of this method
with several
by permittee
is a primary
procedure
to supply
it would
combination
results
accepted
If it were used more
the Department
for a
applies.
to streams
by the Department,
for harvest
the Department's
to estimate
flow is available
requirement.
flow, more
at any time of year.
protect
fisheries.
annual
bypass
affected
Method
is a widely
flows that will protect
minimum
recommended
period
Therefore,
be adversely
and available
the flow
of the normal harvest
maintenance
would
a higher
in the system
limit the adult trout
Preservation
.
.':
With
water years.
adult trout could
longer period
population
analyses
method
method
confirm
the, .,
by showing that the
protect
habitat
for
However,
the results
with hydrologic
conditions
During those months
more
rarely
of applying
the Tennant
in Rock Creek
the natural
method
in July
oh the Tennant
method.
through
flow rarely exceeds
reaches the 60 cfs recommendation
Therefore,
do not coincide
September.
3O.cfs,
and even
for those months
the flow bypass
requirement
based
should
not be more than 30 cfs during those months.
The Tennant
method
flow during
the primary
flow during
other periods.
primary
growth,
recommends
30 percent
cfs.
the actual mean
the Fishery
Permittee's
recommended
in Rock Creek.
population
reduction
to require
the
are based on requiring
bypass
range from 25 cfs.and
of
Based on
flow is
recommendations
50 cfs to 33 cfs and 66
annual flow for Rock Creek becomes
flows may be varied.
Maintaining
habitat
method
annual flow of 100 cfs.
Therefore,
could
the bypass
are the months
for Rock Creek, the mean annual
82.7 cfs and 109.7 cfs.
of average
flow during those months.
bypass flows
under this method
known,
7.4
analyses
Thus, after
under the Tennant
of a mean
of the average
and 30 percent
Since the spring months
minimum
and 60 percent
of 60 percent
of growth
of the average
recommended
the hydrologic
between
periods
it is appropriate
bypass of 60 percent
Department's
maintenance
are likely.
bypass
flows would
As a result, major
With
in fish harvest
reductions
is likeiy.
summer,
fish have few hiding
catch.
If the flows
places
recommended
42.
greatly
reduce the fishery
reductions
in population
During
in fish
and habitat,
low flow periods
late in
and become wary and difficult
by permittee
were
instituted,
a
to
fishing
success would
Department's
be severely
flow recommendations
the preproject
7.5
Fishery
found
in Decision
fishery
Permittee's
recommended
reduce the adult
and spawning
flow
the fishery
protect
River...."
substantially
in Rock Creek compared
Therefore,
discussed
with the
the Department's
fishery
recruitment
recommendation
and spawning
habitats.
would
to the South
the Department's
recommendation
and recruitment
come much closer
at natural
preproject
protect
into the summer
in rainbow trout habitat
harvest
the fishery
at natural
better
strongly
a harvestable
would
43.
recommendation
levels.
The
adult
the year.
avoid significant
to the South Fork American
preproject
of
levels.
and throughout
would
the
the adult, juvenile
and population,
than permittee's
support
for the purpose
It also would maintain
for a longer period
reductions
above more
recommendations,
resource
Department's
would
habitat
flows would
because
River.
minimum
maintaining
angler
bypass
flows.
considerations
Department's
Further,
"Rock Creek is important
Flow
The various
fishery
maintain
River
to the South Fork American
minimum
flows will better
Fork American
Required
1596 that
recruitment
recommended
recommended
7.6
to South Fork American
it provides
Department's
likely will substantially
fishery.
Recruitment
The Board
On the other hand, the
reduced.
to
protect
River,
prcJteCt.ing
and
8.0
COMPLIANCE
WITH THE CALIFORNIA
ENVIRONMENTAL
The Board as lead agency
prepared
declaration
Creek Project
for the.Rock
requirements
of the California
(Public Resources
1596.
OUALITY
and approved
a mitigated
in accordance
Environmental
herein
applies
will substantially
maintain
preproject
it will
levels,
the environment.
resources
no additional
(CEQA)
it adopted
Decision
and since
it
at natural
not cause a significant
Therefore,
Act
to the same project,
the fishery
negative
with the
Quality
Code 66 21000 et seq.) before
The action
ACT
adverse
CEQA document
impact on
is required
for the action herein.
After the Board
Determination
Mitigated
mitigation
9.n
with the Secretary
Negative
and conditions
satisfy
adopts this order
Declaration
the Board's
file a Notice
for Resources.
and Initial
in the permits
measures,
it will
Study,
of
Considerat ion of the
inclusion
Dee laration's
to carry out the Negative
and filing
of terms
of the Notice of Determination
responsibilities
will
under CEQA.
OTHER MATTERS
Permittee
raised two other matters
requested
a finding
Second,
permittee
the Department's
correspondence
California
under
asserted
23 California
and Oregon
experts
Code 6 729.4
to
phase of
at the University
State University.
4 Effective February 15, 1987, Section 729 of Title 23, California
Administrative Code. was revised and renumbered as Section 756.
44.
permittee
have been allowed
during the rebuttal
with two fisheries
First,
Administrative
that it should
presentation
at Davis
in its brief.
of
rebut
9.1
Section
729 Findina
Permittee's
a
section
request
requires
respecting
evaluate
for a finding
the Board
an application
the benefits
environmental
to appropriate
and detriments,
factors,
for a finding
statement,
hearing,
could
Additionally,
Section
would
failed to provide
the recent hearing
relevantto
importance
appropriate
decided
2
;1
9.2
Permittee's
~
a
and prospective
means
adequate
of
did not make
it filed
evidence
its
its closing
During
the
upon which
was narrowly
approving
uses such as is suggested
in the hearing
a reservation
drawn
consideration
of the hearing.
leading
such
compared
herein
by
Such a request
to Decision
to consider
of jurisdiction
an application,
of the project
1596.
Since
only specified
and not the questions:
the issue of the relative
with
the fishery
and, additionally,
of the fishery
is not an
already
resource
has been
at the natural
level.
Request
During the period
offered
and
record was closed.
or issue
in favor of protection
preproject
I
of beneficial
not a subject
have been proper
issues under
until
and
be based.
weighing
729 was
economic
and alternative
under this section
This
in a proceeding
to identify
The permittee
long after the evidentiary
permittee
a finding
such uses.
water,
present
involved
is denied.
of a party
including
of the various
satisfy ing or protecting
this section
upon the request
benefit ial uses of the waters
request
under
to Rebut the DeDartmont's
for introducing
in evidence
two letters
45.
rebuttal
Rebuttal
evidence
from fisheries
the Department
experts
regarding
the
Rock Creek fishery.
the information
Permittee
contained
from the California
offered
and not as original
Permittee
right hearing
Procedure
in asserting
no provision
be allowed
a right to surrebuttal,
proceedings.5
The Board's
Code and by the provisions
provided
evidence,
The letters
C;6 648-648.8
no provision
Permittee
several
that a party
surrebuttal
Procedure
evidence.
in a water
Second,
Act cited by permittee
do
and do not apply to the Board's
proceedings
are governed
in the Board's
by the Water
regulations'at
23
and 761-766.
requires
prior
obviously
exhibits
a right to rebut the Department's
to introduce
not provide
offered
sections
The Department
its main case.
of law requires
of the Administrative
rebuttal.
Act.
of some of permittee's
to support
the sections
Finally,
and cites several
in evidence.
First,
Cal.Adm.Code
letters,
as rebuttal
evidence
is incorrect
rebuttal.
in these
Administrative
the two letters
are accepted
insists that it has a right to rebut,
notice of exhibits
understood
during
them to the Department
this point,
its rebuttal
without
offered
in
since permittee
having
previously
and the Board.
5
Government Code 6 115fll lists the Department of Water Resources as an
The
agency whose proceedings are subject to the Administrative
Procedure Act.
Board is a separat.e agency from the Department, and in fact regulates the water
Apparently,, permittee has confused' the two agencies
rights of the Department.
in asserting the the Administrative
Procedure Act applies to the Boardl's water
riaht oroceedinas.
46.
The letters
.li
.,
,
u
r
in question
supplement
or explain
other
themselves
to support
a finding.
23 Cal.Adm.Code
in light of the uncertainty
told and what
their assumptions
in reaching
exactly
were.
in
6 648.4.
what the statements
in the
over what the experts
Therefore,
were
we have not relied
our decision.
CONCLUSION
findings,
the Board concludes
that Permits
19259 and 19260 issued on Applications
26380 and 27353 should
amended
flow requirement
to increase
decide
different
them.,
and 60 cfs from March through
measuring
permittee
device to measure
jurisdiction)
we will
because
set o.f minimum
bypass
install
high
to
bypass
flows.
a
Therefore,
a device
that will
flows.
17a and 17b are no longer
However,
the bypassed
.
evidence
may have to install
to require that permittee
the bypassed
Higher
June.
Since the minimum
be
to 30 cfs from
we lack adequate
however,
requirement.
are be ing raised,
we will continue
measure
bypass
may be needed;
upon a higher
requirements
Terms
the minimum
February
flow requirements
d
They are not sufficient
letters mean,
July through
v
evidence.
it is questionable
Based on the foregoing
I);
and can only be used to
Additionally,
on the letters
10.0
are hearsay,
needed.
continue
further
present
information
flows would
Consequently
Term
we will delete
17~ (the reservation
may show that
of
a different
be appropriate.
ORDER
..
IT IS HEREBY ORDERED
1.
that Permits
Term 1.6 in both permits
19259 and 19260 shall be amended
is amended
to read:
47.
as follows:
"For the protection of fish, wildlife, and riparian
vegetation, pormittec! shall bypass the following flows:
a.
1 through
From July
feet per second;
b.
From March 1 through
per second;
February
29, a minimum
June 30, a minimum
???
of 30 cubic
of 60 cubic
feet
B
Y.
C.
The total streamflow shall be bypassed whenever it,is
less than the amount designated for that period.
‘2
"No water shall be diverted under this permit unless a
device, satisfactory to the State Water Resources Control
Board, is installed and is operating which is capable of
measuring these bypass flows."
2.
Term 17 in both permits
is amended
to read:
"The State Water Resource? Control Board reserves
jurisdiction over this permit to amend the bypass flows set
forth in Term 16 to protect the fishery resources of Rock
Creek at natural preproject levels.
Action by the Board'
will be taken only after notice to interested parties and
opportunity for hearing."
-4
c
.
All other terms
remain unchanged
and conditions
contained
in Permits
19259 and 19260 shall
and in full force and effec;.
CERTIFICATION
The undersigned, Administrative
Assistant to the Board, does hereby certify
that the foregoing is a full, true, and correct copy of an order duly and
adopted at a meeting of the State Water Resources Coqtrol Board held
AYE:
NO:
W. Don Maughan
Darlene E. Ruiz
Edwin H. Finster
Eliseo M. Samaniego
Danny Walsh
B.
,*
None
ABSENT: None
ABSTAIN:
fl , ,i
None
Adminihrative
Ass;stantVto
the Board