Subject: Gato Creek - DFG
Date: Wed, 25 Feb 1998 20:09:21 +0000
From: BOB BAIOCCHI <cspa@psln.com>
Organization: CSPA
To: CSPA email mailing list
February 23, 1998
Mr. Charles Rich, Chief
Application and Petition Unit #2
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Mr. Jim Canaday
Environmental Unit
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Re: In the Matter of Water Right Permit No. 17360; Application 24985;
Gato Creek, Tributary to Pacific Ocean, Santa Barbara County; Petition
for Change; Formal Protests by Santa Barbara Urban Creeks Council and
the California Sportfishing Protection Alliance; And Public Trust
Complaints by Santa Barbara Urban Creeks Council and the California
Sportfishing Protection Alliance; Response to Letter of February 8, 1998
from the Applicant's Agent to the Staff of the Division of Water Rights.
Dear Gentlemen:
This is in response to the joint agreement of October 21, 1997 between
the California Department of Fish and Game (CDFG), and Clifford W.
Schulz representing Tim Doheny, the permittee, regarding the modified
minimum streamflow requirements and other terms and conditions in said
joint Petitioner - CDFG agreement. I am the consultant for the SBUCC and
the CSPA in this matter.
The following are comments of the SBUCC and the CSPA regarding the
terms and conditions of the joint agreement of October 17, 1997:
1. The terms and conditions of the joint agreement of October 21, 1997
do not satisfy the protests and complaints filed by SBUCC and the CSPA
with the State Water Resources Control Board (SWRCB).
2. The Gato Creek Watershed sustains California red-legged frogs which
are protected under the federal Endangered Species Act.
Pursuant to the federal Endangered Species Act, the petitioner should
be required by the SWRCB to consult with the U.S. Fish and Wildlife
Service to determine whether or not the terms and conditions of the
joint agreement of October 21, 1997 do not jeopardize California
red-legged frogs and their habitat in the Gato Creek Watershed. The
written biological opinion by the U.S. Fish and Wildlife Service
concerning the effects to California red-legged frogs as a result of the
joint agreement, and also as a result of the existing and future
operation of the project should be based on scientific studies prepared
by the applicant, and not heresay.
In the event scientific studies were not conducted by the applicant,
the SWRCB and the USFWS should require the petitioner to conduct
biological studies to determine the potential adverse direct, indirect,
and cumulative impacts to California red-legged frogs and their habitat
resulting from the terms and conditions of the joint agreement, and
resulting from the operations of the project in the short and long term
future.
3. The Gato Creek Watershed may sustain southern steelhead trout.
Southern steelhead have been listed as endangered and are protected
under the provisions of the federal Endangered Species Act. Southern
steelhead trout may migrate into the Gato Creek Watershed when migration
flows are available.
The permittee's diversion dam on Gato Creek is not laddered, and
consequently is a barrier to the upstream migration of south steelhead.
The permittee's major dam on the tributary to Gato Creek is not
laddered, and consequently is a barrier to upstream migration of south
steelhead in the event southern steelhead migrate up the tributary from
Gato Creek. The minimum flow requirement in the joint agreement below
the major dam on the tributary to Gato Creek would dewater about 1,000
feet of streambed below the dam, and would render the streambed
unavailable for spawning southern steelhead, other fish species, and
insect species and their habitat. California Fish and Game Code 5937
requires dam owners to release sufficient amounts of water from the dam
to keep fish in good condition at all times, and not release water from
a pipe 1,000 feet below the dam.
Pursuant to the federal Endangered Species Act, the applicant should be
required by the SWRCB to consult with the U.S. National Marine Fisheries
Service to determine whether or not the terms and conditions of the
joint agreement of October 21, 1997 do not jeopardize southern steelhead
trout [all life stages] and their habitat in the Gato Creek Watershed.
The written biological opinion by the U.S. National Marine Fisheries
Service concerning the effects to southern steelhead trout as a result
of the joint agreement and future operation of the project should be
based on scientific studies prepared by the applicant, and not heresay.
In the event scientific studies were not conducted by the applicant to
determine whether or not southern steehead migrate into the Gato Creek
Watershed, the SWRCB should require the applicant to conduct studies to
determine the potential adverse direct, indirect, and cumulative impacts
to southern steelhead trout [all life stages] and their habitat in the
Gato Creek Watershed resulting from the terms and conditions of the
joint agreement and also resulting from the operation of the project in
the short and long term future.
4. The SBUCC was the original complainant after discovering the
diversion of 100% of the streamflow of Gato Creek and its unnamed
tributary by the petitioner in direct violation of California Fish and
Game Code 5937. The SBUCC reported the lack of any bypass flows to the
CDFG, and filed a public trust complaint with the SWRCB.
The SBUCC and the CSPA were not invited to the joint meeting of May 14,
1997 which led to the development of the terms and conditions of the
joint agreement. This was unreasonable since the SBUCC and the CSPA were
protestants, and also had pending complaints before the SWRCB. This show
a lack of good faith and cooperation on the part of the petitioner and
its agents. i.e. due process rights.
The SBUCC and the CSPA were not provided with a copy of the draft joint
agreement for their review and comment. This was unreasonable since the
SBUCC and the CSPA were the original protestants, and also had pending
complaints before the SWRCB. This show a lack of good faith and
cooperation on the part of the petitioner and its agents. i.e. due
process rights. (My Emphasis)
The SBUCC and the CSPA have not received the results of any biological
and hydrological studies conducted by the petitioner to support the
terms and conditions in the joint agreement.
The SBUCC requested copies of studies prepared for the subject change
petition from one of the petitioner's consultants in the local area. The
SBUCC was denied copies of the studies, and was advised that the SBUCC
would not receive copies of said studies because they were private. This
was unreasonable since the SBUCC and the CSPA were protestants, and also
had pending complaints before the SWRCB. This show a lack of good faith
and cooperation on the part of the Petitioner. i.e. due process rights
and public information rights.
The CSPA was never forwarded any copies of any studies at all conducted
by the petitioner, CDFG, or the staff of the SWRCB, for the subject
change petition and for the joint agreement.
5. Determining the amount of water that flows daily and annually in any
given watershed for the purposes of water development and ecosystem
protection is essential in order to determine whether there is
sufficient water for water development, and also for the protection of
the environment.
Section 1260(k) of the California Water Code requires that sufficient
information is provided to demonstrate a reasonable likelihood that
unappropriated water is available for appropriation. In addition,
Section 1375(d) of the California Water Code states that, prior to
issuance of a permit, and in this case a change petition, the SWRCB must
determine that water is available for appropriation.
The SBUCC and the CSPA have not received or reviewed any hydrology
studies or any water available analysis prepared by the petitioner to
determine that water is available for appropriation in the Gato Creek
Watershed.
Without the hydrology information and data, and also the water
availability analysis, the SBUCC and the CSPA, the public, and the staff
of the SWRCB, cannot determine the amount of water to be put to
beneficial use by the petitioner, and also the amount of water to be put
to beneficial use for the protection of the ecosystem of the Gato Creek
Watershed.
In the event the petitioner has not conducted hydrology studies and has
not conducted a water availability analysis, for the Gato Creek
Watershed, the SBUCC and the CSPA request the staff of the SWRCB to
require the petitioner to conduct hydrology studies, and also conduct a
water available analysis for the Gato Creek Watershed, in order to
determine whether water is available for appropriation, the amount of
water to be put to beneficial use by the petitioner, and the amount of
water to be put to beneficial use for the protection of the ecosystem of
the Gato Creek Watershed.
In the event hydrology studies, and also a water availability analysis,
for the Gato Creek Watershed were conducted by the petitioner, the SBUCC
and the CSPA are requesting copies of said studies and analysis for our
review and comment.
6. The SWRCB commonly requires that instreamflow studies are conducted
to determine the amount to be put to beneficial use for fish and the
environment.
The SBUCC and the CSPA have not received and reviewed any biological
information and data from the petitioner and the CDFG resulting from
instreamflow studies conducted on the Gato Creek Watershed that supports
and justifies the minimum bypass flow requirements in the joint
agreement.
In the event biological instreamflow studies were not conducted by the
petitioner and reviewed by the CDFG to support and justify the minimum
bypass flow requirements in the joint agreement, the petitioner should
be required by the SWRCB to conduct said biological instreamflow
studies.
In the event said studies were conducted, the SBUCC and the CSPA
request copies of said studies for their review and comment.
7. Change petitions are subject to the California Environmental Quality
Act and its Guidelines. The SWRCB is the lead agency under CEQA and its
Guidelines for said Change Petition. Consequently, the SWRCB is
responsible for the preparation of a CEQA document for said Change
Petition.
The terms and conditions in the joint agreement need to be disclosed
and evaluated in a CEQA document in order to determine whether or not
the agreed upon minimum bypass flow requirements and the operation of
the project in the short and long term will have potential adverse
direct, indirect, and cumulative impacts, including growth inducing
impacts, to the environment and public trust resources of the Gato Creek
Watershed.
As stated beforehand, the Gato Creek Watershed sustains California
red-legged frog populations and their habitat. The agreed upon minimum
bypass flow requirements will not protect California red-legged frog
populations and their habitat in the Gato Creek Watershed [dewatered
section of the tributary to Gato Creek below the major dam based on the
joint agreement], and the joint agreement flows have the potential to
jeopardize their habitat resulting from direct, indirect, and cumulative
impacts from the agreed upon bypass flow requirements and also resulting
from the operation of the project in the short and long term future.
Consequently, a CEQA document must be prepared by the SWRCB to
determine and mitigate the potential direct, indirect, and cumulative
impacts to California red-legged frog populations and their habitat
resulting from the agreed upon minimum bypass flow requirements, and
also the operation of the project in the short and long term future.
8. The joint agreement provides no mandatory minimum pool requirement to
protect fish and aquatic species i>