I found this on the City website dealing with creek determination:
http://www.oaklandnet.com/government/ceda/revised/planningzoning/ZoningSection/zoning-forms/basicAPPLICATION.pdf (City of Oakland Basic Application for Development Review)
After looking at this some more I have decided this is more of the game the City and DeSilva are playing with not getting any permits from anywhere. (Including the City). The Creek Ordinance requires DeSilva to get a permit for the work being done in the creek. The Creek Ordinance would kick in with the permit, and that requires consultation with Fish and Game. DeSilva is violating the Creek Ordinance, and the City knows it. What would a court do? Probably require a permit. This is a political nightmare for the City and DeSilva. The City claims to support protection of creeks and yet they are allowing illegal activity to take place. The creek protection community could easily be called out to protest the City's conduct. What do you think?