CSPA
Carmel River
Rancho San Carlos Partnership, apps Nos. 30149, 30150 and 30420
Subject: Carmel River - Steelhead
Date: Mon, 06 Apr 1998 00:17:34 +0000
From: BOB BAIOCCHI <cspa@psln.com>
Organization: CSPA
To: CSPA Board of Directors via email
State of California
Before the State Water Resources Control Board
Rancho San Carlos Partnership, Applicant
Application Nos. 30149, 30150 and 30420
Applications to Appropriate Water
Carmel River Watershed thence Pacific Ocean
Public Trust Protest
by the California Sportfishing Protection Alliance
We have reviewed the Division of Water Right's public notice of March
27, 1998 regarding Applications 30149. 30150 and 30420. We reference the
public notice of March 27, 1998.
DESCRIPTION OF PROJECT
Applications 30149. 30150 and 30420
We have reviewed the description of the project in the Division's
notice of March 27, 1998. Rancho San Carlos Partnership (applicant) has
filed three applications within the Carmel River watershed. The
applicant seeks a right to continue to divert up to 2.0 cfs of water,
not to exceed 188.0 acre-feet per annum by pumping from three (3)
existing wells from the Carmel River underflow from January 1 to
December 31. The water will be used for irrigation purposes. The
applications have been deemed Category 2 by the Division of Water Rights
in said notice.
CSPA PUBLIC TRUST PROTEST
This protest is based on environmental grounds. The steelhead trout of
the Carmel River and its tributaries have been adversely impacted by
authorized (legal) and unauthorized (illegal) diversions of the state's
water in the Carmel River watershed. California red-legged frogs also
have the potential to be adversely impacted by the subject applications
because of the cumulative effects from all diversions in the Camel River
watershed.
STATEMENT OF FACTS AND REASONS FOR PUBLIC TRUST PROTEST
1. The diversions of water from the Carmel River Watershed is highly
controversial among the public because of the adverse effects to Carmel
River steelhead and their habitat, and also because of the need to use
and divert water during all water year types.
2. On July 6, 1995, the State Water Resources Control Board (SWRCB)
adopted Decision 1632 (D-1632) regarding the New Los Padres Project by
the Monterey Peninsula Water Management District. That project was voted
down by voters in the area. In D-1632, the SWRCB determined that water
is only available for appropriation within the Carmel River Watershed
from January 1 to April 30 of each year, with the exception of uses
identified in Table 13 of D-1632. Said applications have been deemed
Category 2 by the Division of Water Rights. Category 2 are applications
seeking to divert an amount of water less than or equal to the amount
allowed pursuant to Table 13 of D-1632.
3. The California Sportfishing Protection Alliance (CSPA) was a party of
record at the hearing concerning D-1632. The CSPA has filed numerous
protests against water right applications following the adoption of
D-1632 by the SWRCB.
4. The Carmel River Watershed sustains steelhead trout and their
habitat. Carmel River steelhead trout have been listed by the U.S.
National Marine Fisheries Service as threatened under the protection and
provisions of the federal Endangered Species Act.
The applicant and the Division of Water Rights should consult with the
U.S. National Marine Fisheries Service to determine the direct,
indirect, and cumulative effects to steelhead trout and their habitat
(all life stages) in the Carmel River Watershed resulting from these
applications, other pending water right applications, including existing
water right permits and licenses. The recommendations from the U.S.
National Marine Fisheries Service should be incorporated into the terms
and conditions of the permits for Applications 30149, 30150, and 30420,
if the permits are approved by the SWRCB.
5. The proposed permits should contain mandatory daily streamflow
requirements below all three points of diversion under Applications
30149, 30150, and 30420 to protect steelhead trout, aquatic resources,
fish species, and other beneficial uses of the state's water pursuant to
Section 782, California Code of Regulations, Title 23, and other
applicable statues and regulations.
6. Carmel River Steelhead were listed as threatened recently for
protection under the provisions of the federal Endangered Species Act
following the adoption of D-1632. D-1632 did not treat steelhead trout
as federally "threatened" because the species was not protected at that
time under federal statutes. Consequently, D-1632 should be amended to
include specific terms and conditions that protect steelhead trout and
their habitat from being jeopardized pursuant to the provisions of the
federal Endangered Species Act.
Applications 30149, 30150, and 30420, and other applications in Table
13, should be held in abeyance until D-1632 has been amended to include
specific terms and conditions that protect steelhead trout and their
habitat from being jeopardized pursuant to the provisions of the federal
Endangered Species Act.
Holding Applications 30149, 30150, and 30420 under abeyance will not
injure the applicant because the SWRCB is allowing the applicant to
divert water without water right permits.
7. In September of last year existing diversions in the Carmel River
Watershed caused steelhead trout to be killed and harmed. That clearly
shows that D-1632 needs to be amended because D-1632 is not protecting
Carmel River Steelhead nor is the staff of the SWRCB monitoring flow
conditions in the river to prevent the taking, killing, and harming of
steelhead trout (all life stages).
The staff of the SWRCB and the U.S. National Marine Fisheries Service,
and other federal and state trustee agencies, should monitor daily flow
conditions in the Carmel River Watershed to prevent the taking, killing,
and harming of threatened steelhead trout. Should another steelhead kill
occur, all diversions in the Carmel River should cease diverting water
until the flows in the river have been changed and increased to prevent
the further taking, killing, and harming of Carmel River Steelhead (all
life stages).
8. Water quality in Carmel River to be affected by the applications
should be sufficient below all points of diversion under Applications
30149, 30150, and 30420 to maintain and keep in good condition at all
times steelhead trout (all life stages), and aquatic resources, in the
Carmel River Watershed pursuant to state and federal water quality
statutes and regulations.
9. The Carmel River Watershed sustains California red-legged frogs and
their habitat. Carmel River California red-legged frogs have been listed
by the U.S. Fish and Wildlife Service as threatened under the protection
and provisions of the federal Endangered Species Act.
The applicant and the Division of Water Rights should consult with the
U.S. Fish and Wildlife Service to determine the direct, indirect, and
cumulative effects to Carmel River California red-legged frogs and their
habitat in the Carmel River Watershed resulting from these applications,
other pending water right applications, including existing water right
permits and licenses. The recommendations from the U.S. Fish and
Wildlife Service should be incorporated into the terms and conditions of
the permits for Applications 30149, 30150, and 30420, if the permits are
approved by the SWRCB.
10. The applicant should be required by the SWRCB to install and
maintain measuring devices which measures the amount of surface water
bypassed below all points of diversion to insure that surface flows are
available and sufficient to protect Carmel River Steelhead and
California red-legged frogs and their habitat.
The CSPA Public Trust Protest is Based on the Following:
11. The CSPA public trust protest is based on: (a) Common Law Public
Trust Doctrine; (b) California Water Code; (c) Article X, Section 2 of
the California Constitution; (d) California Environmental Quality Act
and its Guidelines; (e) federal Clean Water Act; (f) federal Endangered
Species Act; and (g) state laws and regulations.
Under what conditions may this public trust protest be disregarded and
dismissed?
1. None at this time, subject to the above conditions, and new
information.
Respectfully Submitted
______________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-836-1115 - Fax: 916-836-2062
e-mail cspa@psln.com
April 5, 1998
cc: Mr. Robert Been, Application Unit
Steve Herrera, Supevisor, Environmental Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Rancho San Carlos Partnership, Applicant
c/o Ms. Anne Schneider, Esquire
2015 H Street
Sacramento, CA 95814-3109
Mr. James Lecky, Chief
Protected Species
U.S. National Marine Fisheries Service
501 West Ocean Blvd. Suite 4200
Long Beach, CA 90802-4213
Mr. Wayne White, State Supervisor
U.S. Fish and Wildlife Service
3310 El Camino Avenue, Suite 130
Sacramento, CA 95821-6340
Diane Noda, Field Supervisor
U.S. Fish and Wildlife Service
Ventura Fish and Wildlife Office
2493 Portola Road, Suite B
Ventura, CA 93003
Mr. Jim Bybee, Supervisor
Chris Mobley, Fisheries Biologist
U.S. National Marine Fisheries Service
777 Sonoma Avenue
Santa Rosa, CA 95404
Mr. Mike Sherwood, Esquire
Earthjustice Legal Defense Fund
180 Montgomery Street, Suite 1725
San Francisco, CA 94104-4209
Mr. Mike Jackson, Esquire
P.O. Drawer 207
Quincy, CA 95971
Dr. Roy Thomas
Carmel River Steelhead Association
26535 Carmel Rancho Blvd.
Carmel, CA 93923
Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Avenue
Interested Parties
For further information contact Bob Baiocchi at either 530-836-1115 or
at e-mail address: cspa@psln.com