CSPA
Cosumnes River
Public Trust Protest
Subject: Consumnes
Date: Mon, 06 Apr 1998 15:47:12 +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
Ben Brown Ranches, Inc., Applicant
Application No. 30677
Application to Appropriate Water
Unnamed Stream Tributary to Laguna Creek thence Consumnes River thence
Bay Delta
Public Trust Protest
by the California Sportfishing Protection Alliance
We have reviewed the Division of Water Right's public notice of March
20, 1998 regarding Application 30677. We reference the public notice of
March 20, 1998.
DESCRIPTION OF PROJECT
Application 30677
We have reviewed the description of the project in the Division's
notice of March 20, 1998. The applicant seeks a right to collect 51
acre-feet of water within an existing pit-type reservoir (aka Muddox
Pit) located adjacent to the north bank of the unnamed stream. The
reservoir was created from a guarry operation that excavated a pit with
a maximum depth of seven feet and a surface area of 6.51 acres. Water
usage is for stock watering and wildlife enhancement at the reservoir,
and also dust control for roads. Fire protection will also be the
purposes of use. The applicant has requested to divert water from
November 1 through April 30.
CSPA PUBLIC TRUST PROTEST
This protest is based on environmental grounds as shown below.
STATEMENT OF FACTS AND REASONS FOR PUBLIC TRUST PROTEST
1. The Consumnes River sustains chinook salmon and steelhead trout
resources such as spawning and rearing habitat, including resident
fisheries and their habitat, and aquatic resources and their habitat.
2. The Consumnes River Steelhead Trout were recently listed as
threatened for protection by the U.S. National Marine Fisheries Service
under the 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 in
the Consumnes River watershed resulting from this application, other
pending water right applications, including existing water right permits
and licenses, and other diversions such as riparian. The recommendations
from the U.S. National Marine Fisheries Service should be incorporated
into the terms and conditions of the permit for Application 30677, if
the permit is approved by the SWRCB.
3. Consumnes River Chinook Salmon are being proposed for listing by the
U.S. National Marine Fisheries Service under the protection 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 chinook salmon and their habitat in
the Consumnes River watershed resulting from this application, other
pending water right applications, including existing water right permits
and licenses, and other diversions such as riparian. The recommendations
from the U.S. National Marine Fisheries Service should be incorporated
into the terms and conditions of the permit for Application 30677, if
the permit is approved by the SWRCB.
4. The Cosumnes River is a tributary to the Mokelumne River. The
Mokelumne River sustains chinook salmon, threatened steelhead trout,
American Shad, striped bass, other fish species, and aquatic resources.
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 threatened steelhead trout and
chinook salmon and their habitat in the Consumnes River and Mokelumne
River watersheds resulting from this application, other pending water
right applications, including existing water right permits and licenses,
and other diversions such as riparian. The recommendations from the U.S.
National Marine Fisheries Service should be incorporated into the terms
and conditions of the permit for Application 30677, if the permit is
approved by the SWRCB.
5. The Mokelumne River is a tributary to the Bay Delta Estuary. The Bay
Delta Estuary sustains numerous fish and aquatic species such as
endangered winter-run chinook salmon, endangered Delta smelt, including
defacto endangered spring-run chinook salmon, and threatened steehead
trout. Consumnes River chinook salmon and steelhead, and Mokelumne River
chinook salmon and steelhead trout, migrate through the Bay Delta to the
Pacific Ocean, and also to their spawning and rearing areas in the
Consumnes and Mokelumne rivers.
Though small, the proposed diversion would reduce flows into the
Bay-Delta Estuary, and has the potential to cause cumulative impacts in
conjunction with other pending water right applications and existing
diversions from tributaries to the Bay-Delta Estuary.
6. The proposed permit should contain mandatory daily streamflow
requirements below the point of diversion under Application 30677 for
fish species, aquatic resources, and other beneficial uses of the
state's water in the unnamed tributary and Laguna Creek pursuant to
Section 782, California Code of Regulations, Title 23, and other
applicable statues and regulations.
7. Water quality in the unnamed tributary to be affected by the project
should be sufficient below the point of diversion under Application
30677 to maintain and keep in good condition at all times fish and
aquatic species pursuant to state and federal water quality statutes and
regulations.
8. The Division's notice did not describe whether the applicant is
proposing to divert the underflow or the surface flow of the unnamed
tributary. In the event the applicant is proposing to divert the surface
flows of the unnamed tributary, the applicant may need to screen the
diversion to prevent harm to fish and aquatic species. The Division
should clarify whether the applicant proposes to divert the surface
flows or the underflow.
In the event fish species occur in the unnamed tributary and a fish
screen is not required, or the applicant will or has planted fish in the
reservoir, the CSPA believes the applicant should be required by the
Division to provide public access to the reservoir for the purposes of
fishing pursuant to Section 781, California Code of Regulations, Title
23.
9. The applicant should be required by the SWRCB to install and maintain
measuring devices which measures the amount of water in storage in the
reservoir; the amount of water diverted from storage for use; and also
the amount of water bypassed below the point of diversion in the unnamed
tributary in the event the applicant proposes to divert surface flows.
10. The SWRCB should determine whether the unnamed stream tributary and
Laguna Creek are utilized by steelhead trout and chinook salmon during
all water year types.
11. The SWRCB should determine whether fish exist above and below the
point of diversion, and whether a fish screen should be installed and
maintained by the applicant.
12. The Division of Water Rights' public notice for Application 30677
did not disclose the name of the lead agency, and the name of the
responsible agency, pursuant to CEQA and its Guidelines. Advise the CSPA
regarding the names of the lead and responsible agencies under CEQA and
its Guidelines.
The Division's water right process is directly connected to the
environment process which includes CEQA and its Guidelines. The water
right application notice did not disclose and provide any environmental
information concerning the environments to be affected by the water
right application. The CEQA document for the proposed project should
include that environmental information which gives protestants the
opportunity to bring up new information which was not included and
disclosed in the Division's notice.
The CSPA Public Trust Protest is Based on the Following:
13. 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, in which are
agreeable to the CSPA.
2. Before the protest is dismissed, provide me with a copy of the draft
CEQA document for our review and comment.
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 6, 1998
cc: Whalen Toy, Application Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Jerry Johns, Asst. Chief
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Ben Brown Ranches, Inc., Applicant
c/o Tim Smith
P.O. Box 1326
Hines, OR 97738
Jim Bybee, Supervisor
Chris Mobley, Fisheries Biologist
U.S. National Marine Fisheries Service
777 Sonoma Avenue
Santa Rosa, CA 95404
Mike Sherwood, Esquire
Earthjustice Legal Defense Fund
180 Montgomery Street, Suite 1725
San Francisco, CA 94104-4209
Interested Parties
For further information contact Bob Baiocchi at either 530-836-1115 or
at e-mail address: cspa@psln.com