CSPA
Arroyo Grande Creek Steelhead
CSPA Complaint, Feb 1994
Mr. Mark Stretars February 24, 1994
Complaint Unit
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Arroyo Grande Creek; Lopez Dam; San Luis Obispo County Flood Control and Water Conservation District; Permit 12814 (Application 18375); Complaint by William L'Hommedieu; Comments by California Sportfishing Protection Alliance.
Dear Mr. Stretars:
Mr. William L'Hommedieu forwarded to me a copy of your letter to him dated February 10, 1994 regarding his complaint against the San Luis Obispo County Flood Control and Water Conservation District.
William L'Hommedieu's Complaint stated that the San Luis Obispo County Flood Control and Water Conservation District was not maintaining water at all times from the Lopez Dam in Arroyo Grande Creek to protect the public trust resources. He apparently felt that all water right permits issued by the State Water Board have mandatory flow conditions to protect the state's public trust fishery resources. It is a matter of record that some water right permits issued by the State Water Board do not have mandatory flow requirements to protect the public trust fishery resources.
In your February 10, 1994 letter to William L'Hommedieu, you advised him that Permit 12814 issued by the State Water Board authorizes storage and use of water for the Lopez Reservoir Project, but the permit does not contain a mandatory term which requires the permittee to maintain at all times a release of water to protect the public trust fishery resources in Arroyo Grande Creek below the dam to the Pacific Ocean. The failure of the State Water Board not to have a mandatory flow requirement from Lopez Dam in Permit 12814 is a violation of Fish and Game Code 5937 of the California Fish and Game Code.
You advised William L'Hommedieu that his belief that insufficient water is being released downstream from Lopez Dam to protect the public trust resources in Arroyo Grande Creek must be substantiated with evidence such as an IFIM analysis which substantiates the needs of the public trust resources and identifies the impacts to the fishery that are caused by the diversion. You further stated that without such evidence the Division has no basis to take any action on his complaint.
We disagree with your conclusions for the following reasons:
1. The State Water Board has the authority to modify permits. There is a basis for the State Water Board and the Complaint Unit of the Division to take an action on said complaint because San Luis Obispo County Flood Control and Water Conservation District's Permit is in violation of Fish and Game Code 5937.
William L'Hommedieu recently advised me that there is two (2) plus miles of streambed, dry as a bone, directly below the dam. The only time water is released from the dam is to provide water for downstream irrigation users.
2. Arroyo Grande Creek did sustain a run of southern steelhead trout. Southern steelhead trout are a public trust resource and a public trust asset. Fish belong to the people of the state. Because of water development projects in coastal streams in the Central Coast Region, southern steelhead trout populations have been adversely and significantly reduced to a point of extinction. This species of anadromous fish may soon be listed for protection under the federal Endangered Species Act.
Southern steelhead trout need water to survive such as adult migration flows, spawning and rearing flows, and downstream migration flows to get the young fish and some of the adult fish to the Pacific Ocean. California Fish and Game Code 5937 requires a dam owner to release water from the dam at all times to keep the fish in good condition. Permit 12814 does not contain a term which mandates that water is released at all times from Lopez Dam to keep the steelhead trout in good condition. The State Water Board violated Fish and Game Code 5937 when it failed to require the District to release water at all times from the Lopez Dam to keep the southern steelhead trout in good condition.
3. You placed the burden of proof on William L'Hommedieu to fund an IFIM study to substantiate the needs of the public trust resources and identify the impacts to the fishery that are caused by the diversion in Arroyo Grande Creek. We disagree with your conclusion and we believe your conclusion is very unreasonable.
William L'Hommedieu has brought to the Division's attention that water is not being released at all times to protect the public trust resources affected by the District's Lopez Dam. The responsibility of funding the IFIM study is that of the San Luis Obispo County Flood Control and Water Conservation District. The State Water Board responsibility is to require the District to prepare said study. The San Luis Obispo County Flood Control and Water Conservation District holds Permit 12814. The State Water Board has a duty to enforce state law and protect the public trust resources. It is clear the State Water Board when it approved Permit 12814 forgot about water for fish, and consequently violated state law.
We believe at the least you should have requested comments and recommendations from the Department of Fish and Game regarding William L'Hommedieu's complaint and the needs of the fishery resources in Arroyo Grande Creek. You copied your letter to the San Luis Obispo County Flood Control and Water Conservation District, but you did not copy your letter to the Department of Fish and Game. We believe the Department of Fish and Game should have been advised by the Complaint Unit of William L'Hommedieu's complaint and the needs of the fishery resources in Arroyo Grande Creek.
4. In your letter of February 10, 1994, you advised William L'Hommedieu that a new water right application was submitted by the San Luis Obispo County Flood Control and Water Conservation District to cover their direct diversion use from Arroyo Grande Creek. You advised him that his name would be added to the mailing list for this application and that he would be notified regarding any action on this application in the future. (Emphasis Added)
Based on your description of the water right application, we have a question. Is the San Luis Obispo County Flood Control and Water Conservation District's diversion of water by direct diversion from Arroyo Grande Creek the authorized or unauthorized use of the state's water? If the diversion is unauthorized, what action has the Complaint Unit taken to have the District cease diverting the water until it has obtained an approved water right permit?
Please add the name of the California Sportfishing Protection Alliance to the mailing list for the San Luis Obispo County Flood Control and Water Conservation District's water right application. Please provide the CSPA with a copy of the notice of said application so that we can file a protest.
We request the Complaint Unit to take actions on William L'Hommedieu's complaint and commence an investigation of said complaint because Permit 12814 and the District's operates of the Lopez Project is in violation of state law. Until an IFIM study is completed, we recommend and urge the District is required by the State Water Board and the Division of Water Rights to release 50% of the inflow into Lopez Reservoir from Lopez Dam into Arroyo Grande Creek from Lopez Dam to the Pacific Ocean to protect the public trust fish and aquatic resources below the dam.
We believe to delay enforcing state law until an IFIM study may be initiated and completed is in contravention of Fish and Game Code 5937 and other state laws.
A written response is requested.
_______________________________________
Robert J. Baiocchi
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-283-3767 (Quincy Office), 916-836-0338 (Home Office) and 916-283-1007 (law office)
Fax: 916-283-5017
cc: John Turner, Chief
Environmental Services
Department of Fish and Game
William L'Hommedieu
Jim Crenshaw, President
California Sportfishing Protection Alliance
Mike Jackson, Counsel
California Sportfishing Protection Alliance
Tom Gregory
California Sportfishing Protection Alliance
Lewis Moeller
Complaint Unit
Division of Water Rights
Steve Herrera
Environmental Unit
Division of Water Rights
Interested Parties
For further information contact Bob Baiocchi at either 530-836-1115 or
at e-mail address: cspa@psln.com