1 Daniel Cooper (Bar No. 153576) Drevet Hunt (Bar No. 240487) 2 LAWYERS FOR CLEAN WATER, INC. 3 1004 A O’Reilly Avenue San Francisco, California 94129 4 Phone: (415) 440-6520 Fax: (415) 440-4155 5 Email: [email protected]

6 Attorneys for Petitioner 7 SAN LUIS OBISPO COASTKEEPER

8 Margaret Hall (Bar No. 293699) Linda Krop (Bar No. 118773) 9 ENVIRONMENTAL DEFENSE CENTER 906 Garden Street 10 Santa Barbara, CA 93101 11 Phone: 805 963-1622 x107 Fax: 805 962-3152 12 Email: [email protected] Email: [email protected] 13 Attorneys for Petitioner 14 LOS PADRES FOREST WATCH 15

16 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA BARBARA 17 NORTHERN DIVISION

18 SAN LUIS OBISPO COASTKEEPER, a ) Case No. 19 project of Environment in the Public Interest, ) ) 20 a California non-profit corporation; and ) LOS PADRES FOREST WATCH, a ) VERIFIED PETITION FOR WRIT OF 21 California non-profit corporation, ) MANDATE ) Petitioners, 22 ) ) Code of Civil Procedure § 1085; 23 v. ) ) Fish and Game Code § 5937.

24 ) SANTA MARIA VALLEY WATER ) CONSERVATION DISTRICT, a California ) 25 ) Water Conservation District, DOES 1-10, ) 26 ) Respondents. ) 27 ) ) 28

Verified Petition for Writ of Mandate

1 I. Introduction 2 1. San Luis Obispo Coastkeeper and Los Padres ForestWatch (“Environmental Petitioners”) 3 hereby petition this Court for a Writ of Mandate pursuant to California Code of Civil Procedure Section 4 1085 compelling the Santa Maria Valley Water Conservation District (“Water District” or 5 “Respondent”) to perform its mandatory duty of operating Twitchell Dam to allow sufficient water 6 flows from Twitchell Dam into the Santa Maria River to maintain fish stocks in good condition, as 7 required by Fish and Game Code Section 5937. 8 2. Seventy years ago, the Santa Maria River had the second largest run of southern 9 California steelhead (“Steelhead”) in Santa Barbara County. However, the construction and operation of 10 Twitchell Dam on the Cuyama River, the northern tributary to the Santa Maria River, has devastated 11 historic Steelhead runs. Twitchell Dam limits the timing and quantity of flow in the mainstream of the 12 Santa Maria River, preventing juvenile Steelhead from reaching the Pacific Ocean, and ocean-dwelling 13 Steelhead from reaching Sisquoc River spawning habitat. Steelhead are now one of the most endangered 14 fish species in the United States. Restoration of flows to allow migration is central to the recovery of the 15 entire Southern California Steelhead population. 16 II. The Parties 17 A. San Luis Obispo Coastkeeper 18 3. San Luis Obispo Coastkeeper is a project of Environment in the Public Interest, 19 (collectively “Coastkeeper”), a non-profit 501(c)(3) public benefit corporation organized under the laws

20 of California. 21 4. Coastkeeper’s main office is located at 1013 Monterey Street, Suite 202 in San Luis 22 Obispo, California. 23 5. Coastkeeper’s members live and/or recreate in and around the waters in San Luis Obispo 24 and Northern Santa Barbara County, including the Santa Maria River system. Coastkeeper is the only 25 environmental watchdog dedicated solely to enforcement of water quality, watershed protection, and 26 coastal planning regulations in San Luis Obispo and northern Santa Barbara Counties. To further its 27 mission, Coastkeeper actively seeks federal and state implementation of the environmental laws.

28 Because the Santa Maria River system is one of the largest in those Counties, it is a major focus of 1 Verified Petition for Writ of Mandate

1 Coastkeeper’s work. 2 6. The interests of Coastkeeper and its members have been, are being, and will continue to 3 be adversely affected by the ongoing controversy between Coastkeeper and the Water District, and the 4 Water District’s failure to comply with the requirements of Fish and Game Code Section 5937. The 5 relief sought herein will redress the harms to Coastkeeper caused by the Water District’s failures to act. 6 Continuing commission of the omissions alleged herein will irreparably harm Coastkeeper’s members, 7 for which harm they have no plain, speedy or adequate remedy at law. 8 B. Los Padres ForestWatch 9 7. Los Padres ForestWatch (“ForestWatch”) is an independent, non-profit 501(c)(3) 10 organization working to protect wildlife, wilderness, and watersheds throughout the Los Padres National 11 Forest along California’s Central Coast. 12 8. One of ForestWatch’s core programs is to restore historic Steelhead populations in forest 13 watersheds that are currently blocked by dams or other obstructions. To that end, since 2007, 14 ForestWatch has worked to restore stream flows in the Santa Maria River so that fish can return to their 15 native spawning grounds in the Sisquoc River, deep in the San Rafael Wilderness of the Los Padres 16 National Forest. ForestWatch has also provided support to other projects that seek to remediate or 17 remove other impediments to Steelhead migration, with the overall goal of enhancing watershed health 18 for the benefit of wildlife and surrounding communities. 19 9. ForestWatch’s office is located at 16 West Mission Street, Suite V, Santa Barbara,

20 California 93101. 21 10. ForestWatch’s members live and/or recreate in and around the waters in San Luis Obispo 22 and Northern Santa Barbara County, including the Santa Maria River system. The Sisquoc River, 23 running through the San Rafael Wilderness, serves as one of the top backcountry recreation destinations 24 in the Los Padres National Forest. Forestwatch’s members enjoy backpacking, day hiking and horse 25 backing riding in the region, including near the Sisquoc River. 26 11. Given the area’s remoteness and naturalness, it is also an area that attracts scientists who 27 conduct research on invasive species, aquatic ecosystems, and the effects of wildfire and subsequent

28 2 Verified Petition for Writ of Mandate

1 regeneration of the landscape. Forestwatch’s members and volunteers have participated in several 2 projects in the Sisquoc River surveying for invasive species like tamarisk. 3 12. The interests of ForestWatch and its members have been, are being, and will continue to 4 be adversely affected by the ongoing controversy between ForestWatch and the Water District, and the 5 Water District’s failure to comply with the requirements of Fish and Game Code Section 5937. The 6 relief sought herein will redress the harms to ForestWatch caused by the Water District’s failures to act. 7 Continuing commission of the omissions alleged herein will irreparably harm ForestWatch’s members, 8 for which harm they have no plain, speedy or adequate remedy at law. 9 C. The Santa Maria Valley Water District 10 13. The Santa Maria Valley Water District is a Water Conservation District formed in 1937 11 pursuant to the California Water Code, Section 74000 et seq. See 12 http://www.sblafco.org/directory/water_santa_maria_valley.sbc. 13 14. Water Conservation Districts, including the Santa Maria Valley Water District, may sue 14 and be sued in all courts of competent jurisdiction. Cal. Water Code § 74640. 15 15. Twitchell Dam is located on the Cuyama River about six (6) miles upstream from the 16 Cuyama River’s junction with the Sisquoc River, a tributary to the Santa Maria River. Twitchell Dam 17 was completed by the Bureau of Reclamation in 1958. See https://www.usbr.gov/mp/mpr- 18 news/docs/factsheets/santa-maria.pdf. 19 16. The Water District operates Twitchell Dam. See http://smvwcd.org/Home_Page.html.

20 17. Twitchell Dam stores winter flows of the Cuyama River in Twitchell Reservoir, which is 21 then released to maximize recharge to groundwater basins and minimize flow to the Pacific Ocean. 22 Twitchell Reservoir has a capacity of 197,756 acre feet. 23 18. All water used in the Santa Maria area, including domestic and agricultural uses, is 24 obtained by pumping groundwater. See https://www.usbr.gov/mp/mpr-news/docs/factsheets/santa- 25 maria.pdf. 26 19. The true names and capacities, whether individual, corporate or otherwise, of Does 1 – 27 10, are unknown to Petitioners who therefore sue said Respondents by such fictitious names and will

28 seek leave to amend this Petition/Complaint when they have been ascertained. 3 Verified Petition for Writ of Mandate

1 III. Authenticity of Exhibits Attached 2 20. The documents accompanying this petition and supporting declarations are true and 3 correct copies of the original documents. Any materials attached to the supporting declarations were 4 either created by the declarant or were obtained in the manner described in the Declaration of Daniel 5 Cooper in support of Environmental Petitioners’ Verified Petition for Writ of Mandate (Daniel Cooper 6 Dec.), which is filed concurrently herewith. 7 21. The documents attached to the Daniel Cooper Dec. are incorporated herein by reference 8 as though fully set forth in this petition. 9 IV. Jurisdiction and Venue 10 22. This Court has jurisdiction over this action pursuant to Code of Civil Procedure Section 11 1085, as Environmental Petitioners seek to compel from the Water District “…the performance of an act 12 which the law specifically enjoins, as a duty resulting from an office, trust, or station…” Cal. Civ. Code 13 § 1085(a). 14 23. Venue is proper in this Court pursuant to Code of Civil Procedure Section 395, and Santa 15 Barbara County Local Rule 203, as Respondent Water District is a resident of the City of Santa Maria in 16 North Santa Barbara County. 17 V. Statutory Background 18 24. California Fish and Game Code Section 5937 provides: 19 The owner of any dam shall allow sufficient water at all times to

20 pass through a fishway, or in the absence of a fishway, allow 21 sufficient water to pass over, around or through the dam, to keep in 22 good condition any fish that may be planted or exist below the 23 dam. During the minimum flow of water in any river or stream, 24 permission may be granted by the department to the owner of any 25 dam to allow sufficient water to pass through a culvert, waste gate, 26 or over or around the dam, to keep in good condition any fish that 27 may be planted or exist below the dam, when, in the judgment of

28 the department, it is impracticable or detrimental to the owner to 4 Verified Petition for Writ of Mandate

1 pass the water through the fishway. 2 Cal. Fish & Game Code § 5937. 3 25. “Sufficient Water” for purposes of Section 5937 has been judicially defined as enough 4 water flow to maintain the “prediversion carrying capacity of fish” in streams. California Trout, Inc. v. 5 Super. Ct., 266 Cal. Rptr. 788, 801 (Cal. App. 3d Dist. 1990)(“Cal Trout II”), or “enough to restore the 6 historic fishery” below the dam. NRDC v. Patterson, 333 F.Supp. 2d 906, 924 (E.D. Cal. 2004)(Citing to 7 CalTrout II). 8 26. Similarly, fish in “good condition” for purposes of Section 5937 has been judicially 9 defined to mean maintenance of fisheries at historic levels. Id.; see also Karrigan Bork et. al., The 10 Rebirth of California Fish & Game Code Section 5937: Water for Fish, 45 U.C. Davis 809, 860-869 11 (2012). 12 27. An alternative definition of “Good Condition” for Fish and Game Code Section 5937 was 13 applied by the Superior Court in Putah Creek Water Cases, CV515766 (Reporters Transcript of Judge’s 14 Ruling attached as Exhibit A to Daniel Cooper Dec.). In that matter the Court adopted a three-part 15 definition developed by Dr. Peter Moyle, focusing on 1) the fish community; 2) the fishes’ populations; 16 and 3) the health of individual fish. See Daniel Cooper Dec., Ex. A at 10; see also Bork at 869-872. 17 28. Dam operators, such as the Water District, are required to comply with Section 5937. See 18 Daniel Cooper Dec., Ex. A at pp. 22-23 (Solano Irrigation District and Solano County Water Agency 19 owners for purposes of Section 5937); Cal. Trout v. State Water Res. Control Bd. 255 Cal. Rptr. 184,

20 211-213 (Ct. App. 1989), (“CalTrout I”)(State Water Resources Control Board to condition licenses, 21 and operator L.A. Water and Power to release water, consistent with Section 5937); see also Bork at 887 22 (Federal dams under control of local entities covered). 23 VI. Factual Background 24 A. Santa Maria River System 25 29. The Santa Maria River is formed by the confluence of the Cuyama and Sisquoc Rivers 26 and drains into the Pacific Ocean near Guadalupe in northwestern Santa Barbara County, California 27 (Figure 1). The Santa Maria River watershed encompasses an area of 1,860 square miles. The Cuyama

28 and Sisquoc Rivers originate in the Caliente, Sierra Madre, and San Rafael mountain ranges, then flow 5 Verified Petition for Writ of Mandate

1 westward, meeting to form the Santa Maria River approximately twenty four (24) miles from the ocean, 2 east of the City of Santa Maria. 3 30. In 1958, the Bureau of Reclamation completed Twitchell Dam, located on the Cuyama 4 River about six (6) miles upstream from the Cuyama’s junction with the Sisquoc River. See 5 https://www.usbr.gov/mp/mpr-news/docs/factsheets/santa-maria.pdf. Twitchell Dam stores winter flows 6 of the Cuyama River in Twitchell reservoir, and the water is then released to maximize recharge to 7 groundwater basins and minimize flow to the Pacific Ocean. Declaration of Dr. Peter Moyle and Dr. 8 Scott Cooper in Support of Petition for Writ of Mandate (“Moyle Dec.”) at ¶ 13, p. 7. 9 31. The Sisquoc River drains a mountainous area covered by forests and chaparral. The river 10 and its tributaries, in the upper basin, are characterized by single channels with coarse beds (gravel, 11 cobble), a narrow riparian (river-influenced) zone, pool and riffles, and, in some cases, perennial (tear- 12 round) flow. Proceeding downstream, the mainstem Sisquoc River consists of a single channel 13 interspersed with areas where multiple channels and islands may develop. The lowermost ten (10) mile 14 stretch of the Sisquoc River has a braided channel with less riparian vegetation and more uniform 15 aquatic habitats underlain by sand and/or gravel, similar to conditions in the Cuyama and Santa Maria 16 Rivers. The Cuyama and Santa Maria Rivers generally have braided channels with low and sparsely 17 vegetated banks, sand beds, and long periods of no flow, except where the Cuyama River cuts through 18 the Sierra Madres and has a steep bedrock-confined channel. The floodplains of the Santa Maria, 19 Cuyama, and lower Sisquoc Rivers are largely privately owned. Most high elevation areas and the upper

20 thirty three (33) miles of the Sisquoc River, which has federal Wild and Scenic River status, lie within 21 Los Padres National Forest. Moyle Dec. at ¶ 14, p. 8. 22 32. The Santa Maria River watershed has a Mediterranean climate, with most precipitation 23 falling between November and March, followed by a long dry season (April to October). The wettest 24 areas in the Santa Maria River watershed are found along the San Rafael and Sierra Madre Mountains 25 (average annual rainfall = 15.5 to 22 inches), whereas the driest areas are found in the Santa Maria and 26 Cuyama Valleys (Santa Maria Valley = 12.5 to 15 inches, Cuyama Valley = 6.5 to 8 inches). There is 27 very high year-to-year variation in precipitation in the basin. Moyle Dec. at ¶ 15, p. 8.

28 33. The lower Sisquoc, Cuyama, and Santa Maria Rivers are seasonally dry for long periods. 6 Verified Petition for Writ of Mandate

1 After large rainstorms, however, flow in these rivers can increase abruptly. Moyle Dec. at ¶ 16, p. 8. 2 34. A five (5) to six (6) mile reach of the Santa Maria River extending from one (1) mile 3 below Highway 1 downstream to past Bonita School Road is the area with the widest, shallowest, and 4 most braided channel that dries up first as flows recede (Figure 1). Because this reach, then, is a 5 bottleneck for fish passage, it is the “critical passage reach.” Moyle Dec. at ¶ 17, p. 8. When this stretch 6 has enough water for fish passage, fish can generally migrate from the ocean to their spawning beds, and 7 young fish can migrate from the spawning beds to the ocean. Id. 8 35. During the dry season and dry years, the Santa Maria River’s outlet to the ocean is 9 blocked by a sandbar, which impounds flows and forms the Santa Maria River estuary. At these times, 10 the estuary is generally isolated from the ocean. When the sandbar is breached by high river flows, 11 freshwater runs directly into the ocean, the estuary is drained, and lagoon levels follow tidal cycles. 12 Moyle Dec. at ¶ 18, p. 9. 13 B. Oncorhynchus mykiss: The Steelhead and Rainbow Trout 14 36. Coastal populations of the salmonid fish Oncorhynchus mykiss naturally occur as either a 15 resident freshwater form (the rainbow trout) or as a sea-run (anadromous) form (the Steelhead). Moyle 16 Dec. at ¶ 3, p. 1. The Steelhead life cycle involves three main stages: 1) adult spawning and the 17 development of eggs and juveniles in streams and rivers, 2) migration of juveniles from natal streams to 18 the ocean, sometimes with substantial residence in estuaries, while undergoing physiological and 19 morphological changes for life in the marine environment (smoltification), and 3) the growth of oceanic

20 Steelhead into mature adults, which then return to their natal or other accessible streams or rivers for 21 spawning Moyle Dec. at ¶ 3, p. 1. Generally, the freshwater juvenile stages last for one (1) to two (2) 22 years and the developing marine stages for one (1) to four (4) years (typically two (2) years in southern 23 California). Moyle Dec. at ¶ 3, p. 1-2. 24 37. Adult Steelhead in the ocean are able to find their way back to coastal waters and then to 25 their own natal streams. Moyle Dec. at ¶ 3, p. 2. 26 38. After a year or two of feeding and growth in streams, juvenile Steelhead change into 27 smolts, which enables them to migrate into, live, and grow in ocean environments. These changes

28 encompass a streamlining of body form, increased tail fin depth, blackened tail fin margin, silver color, 7 Verified Petition for Writ of Mandate

1 and adjustments that allow the fish to tolerate seawater. Some of these changes can occur before and 2 during the migration of juveniles from freshwater environments to estuaries, and these smolts may spend 3 time in estuaries before moving into the ocean, or back up into freshwater. Moyle Dec. at ¶ 5, p. 3. 4 39. In contrast, the resident rainbow trout form of O. Mykiss spends its entire life cycle in 5 freshwater. Because of rich food resources in the ocean, returning adult anadromous Steelhead tend to 6 be much larger than adult resident trout, and also have a more silvery color and deeper tail fin. As a 7 consequence, adult resident trout and adult anadromous Steelhead can be distinguished by their form, 8 color, and, especially body size. Studies in the nearby Santa Ynez River system use a threshold of 18 9 inches to distinguish anadromous Steelhead adults from resident adult trout. Moyle Dec. at ¶ 6, p. 3-4. 10 40. Anadromous and resident forms of O. Mykiss can interbreed and each form, under 11 appropriate conditions, can produce progeny of the other form. The reasons why some Steelhead migrate 12 to the ocean and others remain resident in streams are complex, with anadromous vs. resident life cycles 13 apparently being determined by genetic differences interacting with juvenile growth rates, sizes, and fat 14 stores, which are, in turn, driven by environmental influences, such as temperature, food supplies, and 15 intraspecific competition. Moyle Dec. at ¶ 7, p. 4. 16 41. Like most salmonids, Steelhead require flowing waters with cool to cold water 17 temperatures, high oxygen levels, and high water quality. The ability of individual Steelhead to survive, 18 tolerate, or thrive at a particular temperature depends on their recent thermal history (i.e., acclimation), 19 availability of thermal refuges (generally cold springs), length of exposure time, daily temperature

20 fluctuations, genetic background, life stage, interactions with other individuals and species, food 21 availability, and stress from other factors (e.g., pollution). 22 C. The Southern California Steelhead 23 42. Steelhead are near the southern limits of their range in southern California. Native 24 Steelhead populations in this region, extending from the Santa Maria River to the border with Mexico, 25 have a variety of distinctive behavioral, physiological, and genetic traits. Since 1997, the NMFS has 26 protected the anadromous component of Southern California Steelhead as a federally listed endangered 27 species, that is, a species at risk of extinction, under the Endangered Species Act. Moyle Dec. at ¶ 8, p. 4.

28 43. The flexible life histories of Steelhead populations (resident/anadromous, variable age at 8 Verified Petition for Writ of Mandate

1 out-migration, variable age at maturity, etc) allow them to persist through the floods, droughts, and 2 wildfires common to southern California. Each life history form buffers the other from environmental 3 disturbances, with resident trout surviving in headwaters during dry times with no river connections to 4 the ocean and no flows adequate for Steelhead passage, whereas sea-run Steelhead can re-establish or 5 augment resident trout populations reduced by floods, droughts, or wildfires. Because the size and 6 fecundity of adult sea-run Steelhead (3,000 to 11,000 eggs/female) are much greater than those of adult 7 resident trout (usually less than 1,000 eggs/female), even a few sea-run Steelhead can greatly increase 8 trout populations in headwater streams. Moyle Dec. at ¶¶ 9-10, pp. 4-5. 9 44. Despite adaptations for dealing with a variable and sometimes harsh environment, 10 widespread development, including specifically dams, have reduced historical Southern California 11 Steelhead runs from tens of thousands to current runs that amount to a few individuals, and probably less 12 than 500 sea-run individuals region-wide. The extensive construction of dams in Southern California has 13 blocked Steelhead migrations and isolated upstream landlocked O. mykiss from downstream migrant 14 populations. Further, dams have altered downstream flow regimes, often producing inadequate flows to 15 breach lagoon sand berms, to provide adequate stream flows for migrations, or to support juvenile 16 rearing habitat. Moyle Dec. at ¶ 11, p. 6. 17 D. Southern California Steelhead in the Santa Maria River System 18 45. Before the middle of the twentieth century, Steelhead were among the most abundant 19 native fishes in the coastal streams of southern California. Although populations varied greatly from

20 year to year, four river systems—the Santa Maria, Santa Ynez, Ventura, and Santa Clara—supported the 21 region’s principal Steelhead runs. Historical records show that anadromous Steelhead runs occurred in 22 the Santa Maria River during periods of high flow, with the Sisquoc River and its tributaries being the 23 major areas for Steelhead spawning and rearing. The last major Steelhead run in the Santa Maria River 24 was recorded in 1941, a year with very high flows, when citizens were observed fishing for Steelhead in 25 the flooded streets of Santa Maria. However, this banner year was followed shortly by a prolonged 26 drought and, thereafter, by the construction (1956 – 1959) and closure (1962) of Twitchell Dam. While 27 the large historic runs have never recovered, sea-run adult Steelhead still occasionally migrate to

28 spawning areas in the Sisquoc River and its tributaries. Moyle Dec. at ¶ 20, p. 9. 9 Verified Petition for Writ of Mandate

1 46. The Sisquoc River and its tributaries have hosted a self-sustaining population of rainbow 2 trout, as well as sporadic runs of anadromous Steelhead, since historical records have been kept. Even 3 during the current five-year drought, trout populations continue to persist in refuge areas in the Sisquoc 4 River watershed. Moyle Dec. at ¶¶ 20-21, pp. 9-10. 5 47. The Santa Maria River watershed hosts the northernmost population of the endangered 6 Southern California Steelhead DPS. The Santa Maria Steelhead population is one of four Core 1 (high 7 priority) populations within the Monte Arido Population Group, comprised of large interior populations 8 in Santa Barbara and Ventura Counties whose collective runs have declined by more than 90%. Core 1 9 populations were chosen by NMFS because they could likely support viable Steelhead populations, 10 providing a nucleus for recovery efforts for the Southern California Steelhead DPS. Moyle Dec. at ¶ 24, 11 p. 10-11. 12 48. The lower Santa Maria River is primarily used as a migration corridor by Steelhead 13 during high flow periods in the winter and early spring, but is usually dry the rest of the year. The Santa 14 Maria and Sisquoc Rivers have been designated critical habitat for the Southern California Steelhead 15 DPS. Moyle Dec. at ¶¶22-24, pp. 10-11. 16 49. Historical records and analyses of current data demonstrate that Steelhead runs occurred 17 in the Santa Maria River during times of high flow. These historical conditions constituted good 18 conditions for fish populations in the Santa Maria River system, because they represented sustainable, 19 persistent Steelhead populations adapted to, and constrained by, the extreme environmental variation

20 found in this region. The designation of the Santa Maria River population as a core population for the 21 recovery of the endangered Southern California Steelhead further highlights the importance of returning 22 this population to its historical good condition to allow recovery of the Steelhead population throughout 23 Southern California. Moyle Dec. at ¶24, pp. 10-11.

24 25 26 27

28 10 Verified Petition for Writ of Mandate

1 E. Ocean Protection Council/Stillwater Study 2 50. As part of a settlement agreement requiring compliance with Public Resources Code § 3 10000 et seq, in 2008 the California Department of Fish and Wildlife (“CDFW”) identified the Santa 4 Maria River as one of twenty two (22) priority streams requiring instream flow analysis. California 5 Department of Fish and Game Priority List for Insteam Flow Assessment, (12 August 2008); See also 6 http://www.stillwatersci.com/resources/smr_cdfg_publicresourcescode_feb2012.pdf. Section 10000- 7 10005 of the Public Resources Code requires, among other things, that CDFW develop instream flow 8 standards sufficient to support anadromous fish passage, and to convey them to the State Water 9 Resources Control Board (“State Board”) for consideration in water rights proceedings. 10 Cal.Pub.Res.Code §§10001-10002. 11 51. The California Ocean Protection Council (“OPC”), supporting CDFW and the State 12 Board, funded four instream flow analyses in three coastal rivers in California, including the Santa 13 Maria. The analysis for the Santa Maria evaluated the historic and current hydrological patterns, and 14 made recommendations for management of releases from Twitchell Dam to support fish stocks. This 15 analysis is embodied in the Stillwater Sciences and Kear Groundwater (2012) report (“Stillwater 16 Report”), attached to the Declaration of Derek Booth in Support of Petition for Writ (“Booth Dec.”) as 17 Exhibit A. 18 52. OPC and Stillwater completed the study in 2012 and submitted it to CDFW. CDFW 19 never submitted the Stillwater Report to the State Board, and the State Board has therefore never

20 considered the Stillwater Report in any capacity. 21 F. Impact of Twitchell Dam’s Operation on Santa Maria Steelhead 22 53. Prior to the construction of Twitchell Dam, the Santa Maria River system had essentially 23 a natural flow regime, maintaining migratory habitat for Steelhead. Even with complete run failures 24 during drought years, O. mykiss populations persisted as the resident form in the Sisquoc River and its 25 tributaries and were replenished by anadromous adult spawning during high flow years. Moyle Dec. at 26 ¶39, pp. 17-18. 27 54. Migratory Steelhead in the Santa Maria River below Twitchell Dam are now very rare,

28 consisting of a few stragglers even in the highest flow years. Moyle Dec. at ¶58, pp. 24-26. 11 Verified Petition for Writ of Mandate

1 55. The construction of Twitchell Dam has altered the condition of fish populations below 2 the Dam from historically good to currently poor. Moyle Dec. at ¶58, pp. 25-26. 3 56. Although the aggregate alteration of flows in the Santa Maria River by Twitchell Dam 4 operations is modest, reservoir storage is large enough to change the flow regime in ways very 5 significant to Steelhead. The largest changes to the Santa Maria River hydrograph stems from the timing 6 and volume of water releases from Twitchell Dam. Twitchell Reservoir captures and stores nearly all 7 Cuyama River flow during the winter and early spring, which represents about thirty-three (33) to forty 8 (40) percent of the flows in the lower Santa Maria River, then releases water slowly downstream 9 through the summer and fall, insuring that released water replenishes the Santa Maria Valley 10 groundwater basin while minimizing surface flows in the River. Moyle Dec. at ¶45, p. 20. 11 57. Therefore, while total levels of flow are similar in the pre- and post-Dam periods, the 12 operation of Twitchell Dam changed the frequency, duration, timing, and magnitude of flows. These 13 changes have reduced the periods available for travel upstream and downstream for Steelhead. Twitchell 14 Dam operations have halved the annual number of days with flows sufficient to allow fish passage. 15 Moyle Dec. at ¶58. P. 24-26; Booth Dec. at ¶11, p. 4. 16 58. Although the number of fish passage events is similar in the pre- and post-Dam periods, 17 the duration of each event is shorter. These short-duration flows trigger Steelhead migration, but are 18 insufficient in volume or duration to allow successful migration to spawning areas for adults or to the 19 ocean for smolts. Thus current operations result in the entrapment of fish in a drying channel. Moyle

20 Dec. at ¶58, p. 24-25; Booth Dec. at ¶ 11. P. 4. 21 59. Flows sufficient for fish passage in the critical passage reach are sufficient to breach the 22 sandbar at the Santa Maria River’s estuary mouth. Booth Dec. at ¶ 8, p. 3-4. Adult Steelhead in the 23 ocean waiting or arriving at the mouth are stimulated to begin their upstream migration when the 24 sandbar is breached and flows initially sufficient for fish passage are present; however, if fish passage 25 flows (> 250 cfs in the critical passage reach) are not sustained for at least three days, adult Steelhead 26 are trapped short of Sisquoc River habitat and their spawning grounds. Booth Dec. at ¶ 9, p.4, Moyle 27 Dec. at ¶ 49, 52, pp. 21-22; 22-23.

28 60. The construction and operation of Twitchell Dam has significantly reduced the 12 Verified Petition for Writ of Mandate

1 frequency, duration, timing, and magnitude of flows sufficient for fish passage, and therefore has 2 reduced the number of successful opportunities for Steelhead migration in the Santa Maria River. Moyle 3 Dec. at ¶58, pp. 24-25; Booth Dec. at ¶¶11-12, pp. 4-5. 4 61. These changes in fish passage flows have contributed to declines in Santa Maria River 5 Steelhead runs, which have been largely non-existent and, hence, in poor condition since the closure of 6 Twitchell Dam. Twitchell Dam operations have resulted in flows of inadequate duration for successful 7 upstream adult migration and have reduced the frequency of flows sufficient for the successful 8 downstream migration of smolts, disrupting anadromous life cycles by both reducing the number of 9 smolts reaching the ocean and the number of adults reaching high-quality spawning areas. Moyle Dec. at 10 ¶58, pp. 24-25. 11 62. Properly timed releases, of appropriate magnitude and duration, to support fish migration 12 would total only approximately 4% of the total volume of stored water at Twitchell Dam. Moyle Dec. at 13 ¶74, pp. 32-33. 14 FIRST CAUSE OF ACTION Against Respondent Santa Maria Valley Water Conservation District 15 Pursuant to California Code of Civil Procedure § 1085 16 For Failure to Comply with Fish and Game Code § 5937 63. Environmental Petitioners incorporate each paragraph of this complaint and petition, 17 herein. 18 64. The Water District has failed to operate the Twitchell Dam to allow sufficient flow to 19 maintain Steelhead stocks in the Santa Maria River system in good condition, in violation of California 20 Fish and Game Code Section 5937. 21 65. Since Twitchell Dam was completed in 1958, Steelhead, including specifically migratory 22 Steelhead in the Santa Maria River system, have precipitously declined and have been designated as 23 endangered by the federal government. 24 66. The Water District’s operation of Twitchell Dam has resulted in flows in the Santa Maria 25 River of inadequate duration and quantity for successful upstream adult migration. 26 67. The Water District’s operation of Twitchell Dam has further reduced the frequency of 27 flows in the Santa Maria River sufficient for the successful downstream migration of smolts. 28 13 Verified Petition for Writ of Mandate

1 68. The Water District’s operation of Twitchell Dam has further resulted in short-duration 2 flows that trigger Steelhead migration, but are insufficient in volume or duration to allow successful 3 migration to spawning areas for adults, or to the ocean for smolts, resulting in the entrapment of smolts 4 and/or adult fish in a drying channel, ultimately killing those fish. 5 69. The Water District’s continued operation of Twitchell Dam in violation of California Fish 6 and Game Code Section 5937 threatens the existence of Southern California Steelhead in the Santa 7 Maria River system. 8 70. The Water District’s continued failure to maintain sufficient water flows below the Dam 9 to keep fish stocks in good condition will cause great and irreparable harm to Environmental Petitioners. 10 Pecuniary compensation is not available under Fish and Game Code Section 5937, and in any event 11 would not afford adequate relief. 12 71. In contrast, an order compelling water releases of sufficient size and with appropriate 13 timing to provide flows for fish migration will cause minimal impact to the Water District, as the water 14 released would total approximately four percent of the total volume of water retained in the reservoir on 15 an annual basis. 16 72. The facts and the law relating to this action are not subject to reasonable dispute, and it 17 appears from this Petition that the Environmental Petitioners are reasonably entitled to the relief 18 demanded. 19 73. Environmental Petitioners have no plain, speedy, or adequate remedy in the ordinary

20 course of law because the Water District will continue to violate Fish and Game Code Section 5937 21 unless compelled to comply by the Court. 22 74. Thus an actual controversy between Environmental Petitioners and the Water District 23 exists concerning the Water District’s operation of Twitchell Dam and compliance with Fish and Game 24 Code Section 5937. 25 WHEREFORE, Environmental Petitioners pray for the relief set forth below.

26 PRAYER FOR RELIEF 27 75. Environmental Petitioners pray that this Court issue a Writ of Mandate, requiring 28 14 Verified Petition for Writ of Mandate

1 Respondents to modify operations at Twitchell Dam to keep Steelhead in good condition: 2 a. Flows. 3 i. When daily flows in the lower Sisquoc River (USGS Garey gauge) in 4 December through April average 350 to 550 cfs and have been at or above these levels for two or more 5 previous days, flow releases from Twitchell Dam are triggered, ensuring that Santa Maria River flows at 6 the critical passage reach would be sustained at or above 250 cfs for a total of at least three (3) days. 7 During these times, daily releases or bypass of 100 to 300 cfs from Twitchell Dam to supplement Santa 8 Maria River flows are required, unless insufficient water is stored in Twitchell Reservoir to 9 accommodate these flows. Adequate flows in the critical passage reach shall be verified either by direct 10 measurements in the critical passage reach or approximated by a combined flow of at least 600 cfs from 11 the Sisquoc and Cuyama Rivers; 12 ii. Flow releases to support Steelhead passage shall not occur, or shall stop 13 once started, if (1) discharges fall below 150 cfs in the lower Sisquoc River (rendering the lower Sisquoc 14 impassable to Steelhead) or twelve (12) or more consecutive days of flow adequate for adult Steelhead 15 passage have been achieved during the current water year; 16 b. Hydrological and geomorphological monitoring. 17 i. Automated gaging of the Santa Maria River at the Highway 1 bridge (site 18 of discontinued USGS gage 11141000); and assurance of continued gaging at the Sisquoc River near 19 Garey (USGS gage 11140000) and the Cuyama River below Twitchell Dam (Santa Maria Valley Water

20 Conservation District gage or equivalent); 21 ii. Field monitoring of flows in the critical passage reach (i.e., in the vicinity 22 of the Highway 1 bridge and Bonita School Road bridge) during all periods in which any flow 23 augmentation from Twitchell Dam is occurring, with the objectives of (1) determining the magnitude of 24 flow losses between the two tributary gages (on the Sisquoc and Cuyama rivers) and the mainstem gage 25 at Highway 1; and (2) updating the stage–discharge rating curve at the Highway 1 gage whenever flows 26 >350 cfs have occurred, a rating curve that is anticipated to change frequently given the easily 27 mobilized riverbed substrate; 28 15 Verified Petition for Writ of Mandate

1 iii. Field monitoring of the channel geometry and wetted width/depth in the 2 critical passage reach during all periods in which any flow augmentation from Twitchell Dam is 3 occurring, with the objective of determining the discharge(s) at which sufficient wetted widths and 4 depths are achieved in at least one continuous channel throughout the critical passage reach to meet the 5 passage criteria of the Stillwater report (i.e., 10 feet minimum width, 0.5 feet minimum depth for 6 downstream juvenile passage and 0.7 feet minimum depth for upstream adult passage); 7 76. Field observation of the sandbar at the mouth of the Santa Maria River within 24 hours of 8 achieving 350 cfs at the Highway 1 bridge to determine whether breaching of the sandbar is occurring 9 within this timeframe. 10 c. Biological monitoring. Deployment of a Dual-frequency Identification Sonar 11 (“DIDSON”) camera in constrained reaches below the critical passage reach, and the marking of 12 juveniles with PIT tags, which allow individual identification, in the upper Sisquoc River. Using these 13 methods, the Water District shall conduct a detailed study of the survivorship, growth, movement, and 14 population sizes of Steelhead in the upper Sisquoc River to assess the effects of flows and Dam releases 15 on Steelhead populations. Following CDFW California Coastal Salmonid Population Monitoring 16 program protocols (Adams et al. 2011), these monitoring efforts shall be complemented by redd, 17 juvenile, and adult surveys that determine the numbers and distribution of nests, adults, and juveniles in 18 the upper Sisquoc River system, as well as fish tagging and recapture efforts to provide measurements of 19 fish growth, survivorship, movement, and population size (Johnson et al. 2007); 20 d. Annual Review, Adaptive Management. Using the results of the hydrological, 21 geomorphological, and biological monitoring, generation by the Water District on or before July 15th of 22 each year of a written review of the condition of Southern California Steelhead in the Santa Maria River 23 system, whether the operation of Twitchell Dam is ensuring that fish stocks are in good condition, and 24 proposals to adjust operations of Twitchell Dam to ensure compliance with Fish and Game Code Section 25 5937; 26 77. Petitioners seek injunctive relief, if necessary; 27 78. Petitioners further seek an award of reasonable fees and costs for bringing suit for the 28 16 Verified Petition for Writ of Mandate

1 Water District’s violations of State law as provided under Code of Civil Procedure section 1021.5; and 2 79. Any such other relief as the Court deems just and proper. 3 4 Dated: April 24, 2017 Respectfully Submitted,

5 6 7 8 Daniel Cooper 9 LAWYERS FOR CLEAN WATER, INC. Attorneys for Petitioner 10

11 12

13 Margaret Hall 14 ENVIRONMENTAL DEFENSE CENTER Attorneys for Petitioner Los Padres ForestWatch 15 16 17 18 19

20 21 22 23 24 25 26 27

28 17 Verified Petition for Writ of Mandate

1 VERIFICATION 2 I, the undersigned, declare: 3 I am the Executive Director of San Luis Obispo Coastkeeper, a Petitioner in this action. I have 4 read the foregoing petition and know its contents. The facts alleged in the above petition are within my 5 own knowledge and I know these facts to be true. 6 I declare under penalty of perjury that the foregoing is true and correct. This declaration was 7 executed on April 24, 2017, in San Luis Obispo, California.

8 9 10 11

12 Gordon Hensley 13 Executive Director San Luis Obispo Coastkeeper 14

15 16 I, the undersigned, declare: 17 I am the Executive Director of Los Padres ForestWatch, a Petitioner in this action. I have read 18 the foregoing petition and know its contents. The facts alleged in the above petition are within my own 19 knowledge and I know these facts to be true.

20 I declare under penalty of perjury that the foregoing is true and correct. This declaration was 21 executed on April 24, 2017, in Santa Barbara, California. 22 23 24

25 Jeff Kuyper Executive Director 26 Los Padres ForestWatch 27

28 18 Verified Petition for Writ of Mandate