State of California
Before the State Water Resources Control Board
Deer Creek Hills, L.L.C., Applicant
Applications Nos. 30626 and 5646X03 et al.
Application to Appropriate Water
Cosumnes River Tributary to Mokelumne River thence Bay Delta thence Pacific Ocean
Public Trust Protest
by the California Sportfishing Protection Alliance
We have reviewed the State Water Resources Control Board's public notice of November 21, 1997 regarding Applications 30626 and 5646X03. We reference the public notice of November 21, 1997.
DESCRIPTION OF PROJECT
Applications 30626 and 5646X03
We have reviewed the description of the project in the Division's notice of November 21, 1997. The applicant proposes to provide water for the project by diverting from the Cosumnes River at a rate not to exceed 10 cfs. The water will be diverted from the Cosumnes River at Granlees Dam during the period of November 1 to June 30 only when bypass flows in excess of 228 cfs occur in the Cosumnes River. Up to 1,230 are-feet of water per year may be diverted directly to use and up to 4,800 acre-feet per year may be diverted to offstream storage and/or underground storage. The total amount of water diverted for the source will not exceed 4,800 acre-feet per year. The water will be used for municipal and domestic purposes, including enhancement of fish and wildlife.
The proposed Deer Creek Hills Project is located immediately adjacent to, and north of Rancho Murieta in Sacramento County. The developers of the project propose to develop 2,999 homes, an 18 hole golf course, a 14 acre shopping center and a 20 acre medical care facility on 1,892 area of land.
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 Cosumnes 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 Central Valley Regional steelhead are being proposed for listing by the U.S. National Marine Fisheries Service in the short term future. The Cosumnes River is part of the Central Valley Region.
3. The Cosumnes River is a tributary to the Mokelumne River. The Mokelumne River sustains chinook salmon, steelhead trout, American Shad, striped bass, other fish species, and aquatic resources.
4. The Central Valley Regional steelhead are being proposed for listing by the U.S. National Marine Fisheries Service in the short term future. Mokelumne River is part of the Central Valley Region.
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. Cosumnes River chinook salmon and steelhead, and Mokelumne River chinook salmon and steelhead, migrate through the Bay Delta to the Pacific Ocean and also to their spawning and rearing areas in the Cosumnes and Mokelumne rivers.
6. The project bypass flow requirement of 228 cfs may not be adequate to sustain all life stages of chinook salmon and steelhead trout in the Cosumnes River. We do not know whether the 228 cfs was based on scientific studies because we have not reviewed the EIR for the project. However, in the event the bypass flow of 228 cfs was not based on scientific studies, the applicant should be required to conduct studies to determine the amount of water necessary to sustain chinook salmon and steelhead trout (all life stages).
In the event the SWRCB approves the application, the applicant should be required by the SWRCB to monitor chinook salmon and steelhead spawning and rearing areas in the Cosumnes River, including migration flows for adults and juvenile fish, for at least six years to determine whether the bypass flow is adequate to maintain these species.
7. The diversion of 10 cfs for the project from the Cosumnes River as result of the project would reduce flows in the Mokelumne River with the potential for resulting cumulative impacts to chinook salmon, steelhead trout, other fish species, and aquatic species in the Mokelumne River.
The SWRCB has not made a decision concerning the mandatory daily flow requirements for the public trust resources of the Lower Mokelumne River as a result of the CSPA and Committee to Save the Mokelumne complaint against EBMUD, and the hearing in 1992.
The mandatory daily flow requirements to protect the public trust resources of the Lower Mokelumne River is also before the Federal Energy Regulatory Commission at this time.
The SWRCB should delay the approved of the application until the SWRCB and the FERC make a decision on the daily mandatory flow requirements for the public resources of the lower Mokelumne River because any fish and environmental flows being released by EBMUD into the river will be reduced 10 cfs during the diversion season as a result of the application.
8. As stated beforehand, the diversion of 10 cfs for the project from the Cosumnes River as result of the project would reduce flows in the Mokelumne River. Reductions in flows in the Mokelumne River as a result of the project will also reduce flows into the Bay Delta Estuary.
The Bay Delta Accord determines the amount of water flowing to the Pacific Ocean from the Bay Delta Estuary to protect water quality and fishery resources. Both the U.S. Bureau of Reclamation and the Department of Water Resources work collectively together to meet the water quality flow standards for the Bay Delta Estuary. Consequently, either the USBR and/or the DWR would have to make up the water reduced by the application.
The CVPIA requires that 800,000 acre-feet of water be provided by the USBR to restore the fisheries of the Bay Delta Estuary and its tributaries. The application would effect the amount of water which is needed by the USBR to satisfy the CVPIA requirements.
We believe the applicant should be required by the SWRCB to reach written agreement with the USBR and DWR concerning the cost to the applicant for the USBR and DWR making up the water that will be diverted for the project.
9. The applicant should be required to screen the diversion to prevent harm and injury to anadromous and resident fish species. We recommend a state of the arts fish screen.
10. The applicant should be required to install and maintain fulltime gauging devices which measures the amount of water diverted from the river; and also the amount of water in storage.
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.
2. We are requesting the applicant to forward to me a copy of the EIR which was prepared by Sacramento County. We are requesting the opportunity to amend this formal protest based on our review of the EIR.
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
December 17, 1997
cc: Hugh Smith, Application Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Deer Creek Hills, LLC, Applicant
c/o C.T. Way, CH2M Hill
2585 Natomas Park Circle, Suite 600
Sacramento, CA 95833-2937
Interested Parties