Consumnes River Watershed - DWR WR Protest July 1998 Application 30677

CSPA

Cosumnes River

Water Rights Protest

Subject: Consumnes River Watershed - WR Protest

Date: Tue, 21 Jul 1998 17:30:18 +0000

From: BOB BAIOCCHI <cspa@psln.com>

Organization: CSPA

To: email to CSPA Board and interested parties

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE

P.O. BOX 357

QUINCY, CA 95971

Robert J. Been, WRC Engineer July 20, 1998

Division of Water Rights

P.O. Box 2000

Sacramento, CA 95812-2000

Re: Application 30677, Ben Brown Ranches, Applicant, Unnamed stream

tributary to Laguna Creek thence Consumnes River thence Bay Delta

Estuary thence Pacific Ocean; Formal Protest by California Sportfishing

Protection Alliance; Response to Letter of June 23, 1998 from the

Division of Water Rights Regarding Protest by the California

Sportfishing Protection Alliance against Application 30677

Dear Mr. Been:

The California Sportfishing Protection Alliance (CSPA) has received and

reviewed your letter of June 23, 1998 regarding the CSPA protest against

Application 30677. In your letter you advised the CSPA in the event we

did not respond to your letter by 30 days, the Division would dismiss

the CSPA protest and proceed toward issuance of a water right for

Application 30677. You also advised the CSPA that the applicant has

addressed the CSPA concerns. The applicant has not addressed the CSPA

concerns. The following are the comments of the CSPA:

1. We reference the Division of Water Rights written comments of June

23, 1998. The deadline date for the CSPA submitting written comments to

the Division of Water Rights is July 23, 1998 with respect to your

required deadline date.

2. As an enclosure to your letter of June 23, 1998, you included two (2)

written responses to the Division of Water Rights concerning Application

30677 from the applicant's agent. Namely, Mr. Tim K. Smith of TKS

Consulting, Ltd, agent for the applicant.

3. The written response to the Division of Water Rights by the

applicant's agent of May 5, 1998 is not in accordance with the

California Code of Regulations, Title 23 (Answer to Protest). The

applicant's agent did not specifically provide the CSPA with a timely

written answer to the CSPA protest. In the event the Division is playing

by the rules, the Division should have advised the applicant's agent to

send a timely copy of the applicant's answer concerning the CSPA protest

to the CSPA's agent. However, apparently on behalf of the applicant, Mr.

Toy of the Division of Water Rights faxed to me a copy of the letters

from the agent of the applicant.

4. Based on written statements by the applicant's agent of May 5, 1998,

the applicant's agent claims that the subject unnamed tributary to

Laguna Creek has no fishery nor does Laguna Creek.

This statement by the applicant's agent is heresay. In the applicant's

statement of May 5, 1998, the applicant's agent provided no documented

evidence, other than heresay, that the unnamed stream and Laguna Creek

do not sustain aquatic life. Most certainly the Consumnes River sustain

aquatic life, but the applicant's agent stayed away from mentioning the

Consumnes River.

The applicant should be required by the Division to provide biological

evidence that the unnamed tributary and Laguna Creek do not sustain

aquatic species and their habitat, including riparian habitat, and other

public trust resources and assets.

5. The applicant's agent made allegations in his statement to the

Division of Water Rights that the seasonal drainage runs water only

during the highest winter runoff periods when water temperatures are low

and flow volumes are at their peak, and consequently, no threat is posed

to any seasonal fishery sustaining flow by capture of water from the

subject seasonal drainage.

The applicant's water right application is for all water years types.

That includes below normal, dry, critically dry and drought conditions,

including wet, above normal, and normal water year types.

To support the agent claims, the applicant's agent provides no evidence

to the CSPA and the Division of Water Rights that the applicant will

divert water during the highest winter runoff based on all water year

types. The diversion season for Application 30677 is from November 1 to

April 30, nor did the agent of the applicant provide any evidence that

the highest flow occurs during the months of November or March or

April. The applicant should be required by the Division of Water Rights

to submit the evidence supporting its agent's claims that the highest

flow are available during the proposed diversion season from November 1

to April 30 during all water year types.

To support the agent claims, the applicant's agent provides no water

temperatures records and data (evidence) to the CSPA and the Division of

Water Rights for the unnamed tributary and Laguna Creek, and also for

the Consumnes River, that water temperatures are low and flow volumes

are their peak when the applicant is diverting water during all water

year types. The applicant should be required by the Division of Water

Rights to submit the evidence supporting its agent's claims for all

water year types.

6. The agent claims that there has never been daily flow below the point

of the proposed diversion for the majority of the year.

However, the applicant's agent did not provide any hydrology analysis

to the CSPA and the Division of Water Rights that supports the agent's

claims that there has never been daily flow below the point of the

proposed diversion for the majority of the year or whether there are no

flows in Laguna Creek the majority of the year. Reduction in streamflows

in the unnamed tributary would have a cumulative reduction to flows in

Laguna Creek, and also the Consumnes River.

The Division of Water Rights should require the applicant to prepare a

hydrology analysis that shows the daily. monthly, and annual flows

during all water year types for the unnamed tributary and Laguna Creek.

7. The agent stated that "The storage pond itself is and has been full

of water since the cessation of mining some 2 years ago".

It appears the applicant is storing the state's water at the storage

pond without the expressed authority (water right permit) of the State

Water Resources Control Board. The unauthorized use and storage of the

state's water is a violation of the California Water Code, and is a

trepass.

In the event the applicant does not have a valid legal water right to

store water at the storage pond, the Division of Water Rights must take

enforcement action against the applicant pursuant to Sections 1052 et

seq., 1825 and 1831 et seq. of the California Water Code, because it is

unlawful.

In the event the applicant does not have a valid water right to store

water at the pond, the applicant should be required by the Division of

Water Rights to release said unauthorized water from the storage pond

into the unnamed tributary pursuant to state law, provided said water

will not affect water quality. In the event the water in the storage

pond is not of sufficient quality and will adversely affect the waters

of the state, the applicant should be required to pump the water from

the storage pond and transport by truck to another safe disposal site.

8. The applicant claims that all environmental issues have been

addressed under a 1995-1996 CEQA document prepared and approved by

Sacramento County Department of Environmental Review, and the California

Department of Water Resources.

The Sacramento County Department of Environmental Review does not have

the authority to approve water right application 30677, including any

terms and conditions to protect the public trust resources affected by

the Application 30677.

The California Department of Water Resources does not have the

authority to approve water right application 30677, including any terms

and conditions to protect the public trust resources affected by the

Application 30677.

The CSPA was not contacted or consulted by the applicant or its agent

regarding the application, and the CSPA protest. The CSPA did not

receive a copy of the CEQA document from the applicant that allegedly

claims that it satisfies the responsibilities and duties of the SWRCB

under the California Environmental Quality Act and its Guidelines for

Application 30677. It should be noted that the applicant requested a

waiver from the Division of Water Rights concerning the CEQA process for

Application 30677.

Did the CEQA document disclose, evaluate, and mitigate the cumulative

impacts to the natural resources of Laguna Creek and the anadromous

fisheries of the Consumnes River from the proposed project, other

projects, and future projects?

Did the CEQA document disclose, evaluate, and mitigate the cumulative

impacts to water quality standards in the Bay Delta Estuary and the

resulting effects to the Central Valley Project and the State Water

Project resulting from replacing water into the Bay Delta Estuary to

meet water quality standards when the Delta is in balance and the

applicant is diverting water during all water year types?

The CSPA is requesting the applicant and the Division of Water Rights

to disclose and answer these questions.

9. The applicant proposes to divert water from a tributary to the

Consumnes River. The Consumnes River flows into the Bay Delta Estuary.

The application proposes to divert water during all water years types.

There are water quality requirements adopted by the SWRCB for the

protection of the Bay Delta Estuary. When the Bay Delta Estuary is in

balance, the proposed application would affect water flowing into the

Bay Delta Estuary to meet the Bay Delta Estuary water quality

requirements. Consequently, when the Bay Delta Estuary is in balance,

and when the applicant diverts water, either the U.S. Bureau of

Reclamation and/or the California Department of Water Resources, or

other water users [on-going water rights hearing], will need to replace

the water diverted from the Consumnes River watershed by the applicant.

The Division of Water Rights should not approve the application until

it is stipulated in writing by the U.S. Bureau of Reclamation and the

California Department of Water Resources that they will replace water

diverted under Application 30677, and Applications 30626 and 5646X03

[Deer Creek Hills, Applicant].

10. In the CSPA's protest the CSPA requested the Division of Water

Rights to provide for public access to the storage pond for the purposes

of fishing pursuant to Section 781, California Code of Regulations,

Title 23. The agent for the applicant stated that there are no fish in

the unnamed tributary. Then the applicant's agent states that the

applicant will not provide and allow public access to their storage

pond. The agent for the applicant further stated that if this does come

an issue, if there are fish in the clay pond storage pond, the applicant

will eliminate the fish. However, this is not the wish of the applicant.

The destruction, killing or transporting of fish is a violation of

State of California Fish and Game Code as intended by the applicant.

Should there be fish in the storage pond, the applicant is required by

state law to allow public access to the waters of the pond for the

purposes of fishing.

11. Rather then the Division of Water Rights investigating this water

right application and the allegations made by the applicant's agent, it

unreasonably advised the CSPA that it will dismiss the CSPA protest. The

due process of the CSPA and compliance of state law would not be served

in the event the Division of Water Rights decides to dismiss the CSPA

protest.

12. In the "comments" portion of the agent's response to the Division of

Water Rights of May 5, 1998, the agent made a number of unfounded wild

claims.

The CSPA protest is not a "Boiler Plate" protest as claimed by the

agent. Over the course of the past several years, the CSPA has amended

its formal protests to fit the specific needs of the staff of the

Division of Water Rights. The CSPA recommends the agent for the

applicant discuss this matter with other staff members of the Division

of Water Rights. i.e. Jerry Johns, Steve Herrera. However, the CSPA

would be more than happy to commence submitting the former formal

protests which clearly spell out state statutes and the duties and

responsibilities of the SWRCB to protect the public trust resources and

assets.

It is true the CSPA has not visited the site for the proposed diversion

because it is on private property.

It is true the CSPA has not read Use Permit 94-R2B-UPB-0364 because

neither the Division of Water Rights or the applicant have provided the

CSPA with a copy of the Use Permit.

The agent for the applicant, from his office in Oregon, claims it is

his opinion that the CSPA protest is a "blanket harassment of water

rights applications common procedure for environmental groups".

The CSPA has filed hundreds of formal protests and formal complaints

over the past several years with the Division of Water Rights. When

deemed necessary, hearing were held by the SWRCB. The CSPA, when filing

protests and complaints, has followed procedures pursuant to State of

California law and regulations. i.e. The CSPA submit and reference all

protests and complaints filed by the CSPA, including hearings held by

the SWRCB.

The CSPA files protests not to harass applicants, put to compel the

Division of Water Rights and the SWRCB to order terms and conditions

that protect the environments of California rivers and streams.

Environment means water quantity, water quality, fisheries and their

habitat (all life stages), invertebrate and other aquatic species and

their habitat (all life stages), riparian habitat (all plant species),

wildlife species and their habitat (all life stages), and other public

trust resources and assets.

13. The agent for the applicant claims the CSPA is harassing the

applicant. This is unfounded and not true. On December 17, 1997, the

CSPA filed a formal protest against Applications 30626 and 5646X03 by

Deer Creek Hills. Deer Creek Hills proposes to divert water affecting

the quantity of water flowing into the Cosumnes River. The CSPA has

invested time and money into a restoration project in the Consumnes

River to protect the public trust anadromous fisheries. The CSPA's

concern regarding the applicant's application and the Deer Creek Hills

applications is the cumulative impacts to water quantity flowing into

the Consumnes River, and the resulting cumulative impacts to habitat for

Consumnes River chinook salmon and steelhead trout, and other public

trust resources, from reduced flows flowing into the Consumnes River

from proposed diversions, existing diversions, and future diversions.

The agent for the applicant claims the CEQA document prepared by the

City of Sacramento satisfies the CEQA requirements for the applicant's

water right application. The City of Sacramento's CEQA document was

prepared in 1995-1996 according to the agent. The applications for Deer

Creek Hills was noticed by the SWRCB in late 1997. Because the Deer

Creek Hills filing is new information following the 1995-1996 CEQA

document by the City of Sacramento, a new CEQA must be prepared which

discloses, evaluates, and mitigates the cumulative impacts to water

quantity flowing into the Consumnes River, and the resulting cumulative

impacts to habitat for Consumnes River chinook salmon and steelhead

trout, and other public trust resources, from all applications,

including existing projects, and future projects. We refer you to CEQA

and its Guidelines.

14. The site of the proposed diversion was used for mining activities.

The CSPA reserve the right to raise a claim of water quality impacts

resulting from past mining activities affecting the waters of the State

of California in conjunction with the proposed diversion and use of the

state's water by the applicant.

15. Chinook salmon and steelhead trout may migrate from the Consumnes

River into either Laguna Creek and the unnamed tributary during wet

water years for spawning and rearing purposes. Steelhead of the

Consumnes River have been listed as threatened by the U.S. National

Marine Fisheries Service under the provisions of the federal Endangered

Species Act. Consumnes River fall-run chinook salmon may be listed in

the short-term future under the provision of the federal Endangered

Species Act.

Steelhead trout of the Central Valley were recently listed by the U.S.

National Marine Fisheries Service as threatened in 1997. The CEQA

document prepared by the City of Sacramento was prepared in 1995-1996 or

before steelhead were listed. The listing of steelhead as threatened

under the provisions of the federal Endangered Species Act is also new

information. Consequently, a new CEQA document should be prepared that

discloses, evaluates and mitigates all potential cumulative impacts to

steelhead and their habitat (all life stages) in the Consumnes River,

including potentially in the Laguna Creek watershed, resulting from

Application 30677.

Thank you for the opportunity to respond to the applicant's response of

May 5, 1998 and December 12, 1997. A written response would be

appreciated when the Division of Water Rights has gathered the necessary

information and data to process Application 30677 as requested in this

response.

Respectfully Submitted

________________________________________

Robert J. Baiocchi, Consultant

For: California Sportfishing Protection Alliance

P.O. Box 357

Quincy, CA 95971

Bus Tel: 530-836-1115; Fax: 530-836-2062

cc: Mr. James Crenshaw, President