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Ms. Carol Whitreaide Ms. Kerry Sullivan April 6, 1992 Page Two Trust Doctrine, the lands must be used for public trust purposes of statewide benefit which includes waterborne commerce and water-dependent uses such as navigation and for commerce by means of navigation; protection of fisheries; water-dependent recreation, such as fishing, picnicking. boatin& sailing, rafting, canoeing, and water-skiing; A25 public accem to the waterways; open space; and the protection and preservation of wildlife acid its habitat, as well as aquatic and other sensitive resources. In addition to rights based upon ownership, the public generally has a right to navigate and exercise the incidents of navigation over any area covered by water which is capable of being physically navigated by oar or motor propelled small craft. The DEIR should include a de=iption of the above-described public trust uses and public navigational rights which attach to these waterways. The DEIR contains no discussion of the requirements of Government Code Section 66478.5 and how the project applicant proposes to comply with it. Although there is a brief discussion of Government Code Section 66478.4, the two sections are independent requirements of the Subdivision Map Act and both must b- addressed. In limited ciraimstancm a local agency, upon appropriate findings, may determine that an applicant need not provide access through the subdivision to the waterway. Under Section 66478.8 that access must be "otherwise available within a reasonable distance from the subdivision". Under the holding in Kern uivcr P�,hlir Access Committee v. City of Bajorsfif�d (1985) 170 CA 3d 1205, the findings allowed by Section 66478.8 do not A26 ARIIC to the provisions of Section 664785. Therefore, the applicants must provide access along the waterway out of their fee lands. Access through the subdivision to the waterway easement may only be waived if the provisions of Section 66478.8 are met. Tae factors listed 4.1-12 are relevant only to the "reasonableness" of the access proposed. Because the river bank is densely populated by the riparian forest, the biological sensitivity of the site may well limit the amount of access that is reasonable. The access to and along the Mokelumne may be dedicated and yet left dormant in the context of the Conservation Easement. No access, including that by project residents, should be allowed consistent with the resource values nor should the golf course intrude into the riparian area subject to the Conservation Easement. However, in the event of changod circumstances, such-as lora of trees along the bank due to natural events, there may be a time when public access would be reasonable. In order to preserve the public mess potential, the Conservation Easement should include provisions for public access at thti time when said access does not adversely affect the biological sensitivity. This prvviaion should include a performance standarfor biological ty d a comprzheasive public access p enwould Ctiodaccess, no not loss of riparian habitat, consistency with a habitat conservation plan and a funded maintenance and operations program. III-28 -�,� C?:CT 7cicrl/-"0