DWR WR Permits 17360 and 17361 Gato Creek, Dec 1999

Subject: Gato Creek - Water Rights - Santa Barbara - The Battle Goes On
Date: Wed, 01 Dec 1999 13:14:45 +0000
From: BOB BAIOCCHI <cspa@psln.com>
Organization: CSPA
To: large CSPA email distribution

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
P.O. BOX 357
QUINCY, CA 95971

Mr. Jim Canaday December 1, 1999
Environmental Specialist
Environmental Unit
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000

Re: Gato Creek, Tributary to the Pacific Ocean; Edwards Reservoir; Water
Right Permits 17360 and 17361; Petition for Change; Santa Barbara
County; Formal Protest by California Sportfishing Protection Alliance.

Dear Mr. Canaday:

Thank you for forwarding to me a copy of a letter dated November 12,
1999 from Mr. Sickafoose of Penfield & Smith to you concerning the field
meeting of June 17, 1999 and the California Sportfishing Protection
Alliance's (CSPA) protest in the above mentioned matter. The following
are the comments of the CSPA:

1. On September 8, 1999, Mr. Trautwein advised the permittee and its
consultant in a letter that they should work directly with UCC and the
CSPA "to achieve resolution of this issue". Since September 8, 1999, Bob
Baiocchi, Consultant for the CSPA, has not received a telephone call or
a letter from Mr. Sickafoose "to achieve resolution of this issue".
Further, Mr. Sickafoose did not forward to me nor to the other
protestant in this matter [SBUCC] a copy of his letter to you dated
November 12, 1999.

2. In Mr. Sickafoose's letter to you of November 12, 1999, he stated
that "The primary goal of our field meeting was to receive an indication
from the Protestants that the Fish and Game draft Agreement was
satisfactory or if not, specific reasons based on factual evidence why
the agreement is not satisfactory". (Emphasis Added)

Mr. Sickafoose is an engineer and is not an environmental consultant to
the best of my knowledge. Consequently, any environmental material
provided to the Division of Water Rights and State Water Resources
Control Board as a result of this letter should be endorsed and
supported by a professional biologist.

3. The draft Agreement of October 21, 1997 between the Department of
Fish and Game and the permittee spells out the minimum bypass flow
requirements at the permittee's diversion point on Gato Creek as
follows:

"a" "From May 1 through October 31 the minimum bypass flow shall be 50
gallons per minute or the natural flow of Gato Creek, whichever is
less."

"b" "From November 1 through April 30 the minimum bypass flow shall be
50 gallons per minute on a monthly average basis, but shall never be
less on an instantaneous basis than 25 gallons per minute or the full
natural flow of Gato Creek, whichever is less."

See page one (1) of the letter of October 21, 1997 from Clifford W.
Schulz, Attorney, representing the permittee, to the California
Department of Fish and Game concerning the Draft Modification of Minimum
Flow Requirements and said draft Agreement.

The following are the CSPA comments concerning the above shown minimum
flow conditions in said draft Agreement:

(a) On the basis of the language in said draft Agreement, the permittee
could divert and use the entire natural flow of Gato Creek annually,
except for the meager amount of minimum flows to be bypassed by the
permittee as shown above.

(b) The 50 gpm of flow as shown in the draft Agreement does not flow to
the Pacific Ocean, and in fact disappears into the underflow of Gato
Creek about 300 to 400 feet below the permittee's point of diversion.
This was witnessed at the field meeting of June 17, 1999.

(c) We have not reviewed any scientific hydrology study (evidence)
prepared by the permittee's consultant which shows the daily, monthly,
and annual natural flows in the Gato Creek watershed. The CSPA believes
it would be reasonable for the permittee's consultant to forward to the
CSPA the scientific hydrology study that was prepared by the permittee
to determine the daily, monthly, and annual flows in the Gato Creek
watershed, including the amount of water presently diverted, stored, and
used by the permittee, and also proposed to be diverted, stored, and
used by the permittee following the approval of the change petition.

In the event a scientific hydrology study was not prepared by the
permittee, the petition for change should be delayed until the permittee
provides the SWRCB and the CSPA with a specific scientific hydrology
study for the Gato Creek watershed.

(d) Southern steelhead in coastal rivers and streams in certain areas of
Southern California have been listed as endangered under the protection
of the provisions of the federal Endangered Species Act. Gato Creek has
been recommended by the U.S. National Marine Fisheries Service as
critical habitat for endangered southern steelhead species. Information
from local sources indicates that the Gato Creek watershed sustained
steelhead prior to the construction of the permittee's dam.

Gato Creek did sustain southern steelhead and rainbow trout. Source of
information: Historical Research; Ed Henke.

The CSPA believe that the permittee should consult with the U.S.
National Marine Fisheries Service to determine the flows and other
protection measures that are necessary to prevent jeopardy and harm to
endangered southern steelhead (all life stages) should the endangered
species migrate into the Gato Creek during wet water years.

(e) We have not reviewed any scientific instreamflow fish, aquatic, and
riparian habitat study (methodology) (evidence) prepared by the
permittee's consultant which shows that the riparian habitat and
corridor, fishery resources, which includes endangered southern
steelhead, and aquatic resources such as federally listed California
Red-Legged Frogs and California Newt species (state special species of
concern), below the permittee's point of diversion and also directly
below the dam, will be protected at all times as a result of the minimum
flows to be bypassed as shown above in the draft Agreement.

The CSPA believes it would be reasonable for the permittee's consultant
to forward to the CSPA the instreamflow study that was prepared by the
permittee's consultant which factually (evidence) shows that the
riparian habitat and corridor, fishery resources (all life stages),
which includes endangered southern steelhead (all life stages), and
aquatic resources (all life stages) such as federally listed California
Red-Legged Frogs (all life stages) and California Newt species (all life
stages) (state special species of concern), below the permittee's point
of diversion and also below the dam on the unnamed tributary, will be
protected at all times as a result of the minimum flows to be bypassed
as shown above in the Agreement.

In the event a scientific instreamflow habitat study was not prepared
by the permittee, the petition for change should be delayed until the
permittee provides the SWRCB and the CSPA with a specific scientific
instreamflow habitat study for the Gato Creek watershed which
biologically and factually justifies the minimum flows in said draft
Agreement for all species of fish and aquatic and their habitat (all
life stages).
(f) We have not reviewed any fish and aquatic species surveys prepared
by the permittee's consultant which identifies the specific fish and
aquatic species in the Gato Creek watershed, both above and below the
points of diversion and storage, including the reservoir. The CSPA
believes it would be reasonable for the permittee's consultant to
forward to the CSPA professional surveys conducted by the permittee's
consultant to determine the fish and aquatic species in the Gato Creek
watershed.

In the event scientific fishery and aquatic surveys were not conducted
by the permittee, the petition for change should be delayed until the
permittee provides the SWRCB and the CSPA with the scientific fishery
and aquatic surveys for the Gato Creek watershed.

(g) It is our understanding that there may be federally listed Tidewater
Goby species that use the Gato Creek lagoon. The lack of fresh water
flowing into the lagoon may have adverse impacts to these listed
species. Also endangered southern steelhead may use the Gato Creek
lagoon as a natal rearing area. The lack of fresh water flowing into the
Gato Creek lagoon resulting from the existing and proposed project water
uses has the potential to effect southern steelhead smolting in the
lagoon. The permittee's consultant should forward studies conducted by
the permittee which studied the direct, indirect, and cumulative impacts
to listed Tidewater Goby species and also endangered southern steelhead
species in the Gato Creek lagoon that could result from storage,
diversions, and existing and proposed operations of the project by the
permittee.

In the event studies have not been prepared, the permittee should be
required to conduct said studies of the Gato Creek lagoon and said
species in the Gato Creek lagoon as shown above.

(h) The minimum bypass flows as shown above are not shown as mandatory
daily (24 hour period) flow requirements. Any minimum flows adopted and
placed into the terms and conditions of the permits by the SWRCB should
be shown as mandatory daily minimum bypass requirements. (Our Emphsis)

4. The draft Agreement between the Department of Fish and Game and the
permittee spells out the manner in which minimum bypass flows should be
measured as follows:

"2." "Except for the November 1 through April 30 monthly average bypass
flow, the bypass flows shall be measured through use of a V-notch weir
of the type and rating shown on the attached table and drawing. It shall
be installed by permittee in a location and in a manner mutually
satisfactory to permittee and the Department of Fish and Game. The
November 1 through April 30 monthly average bypass will be based on the
Gato Creek Model, which is based on daily stream gauge reading for
nearby San Jose Creek."

"3." "The bypass flow at the Gato Creek diversion shall be measured
weekly on the same day of the week during the months of May through
October, inclusive, so that the adjustments in releases into Gato Creek
in Paragraph 5 of this letter can be made."

"4." The flow passing through the dam which runs into the unnamed
tributary to Gato Creek shall be measured weekly on the same day that
the Gato Creek diversion bypass flow is measured."

"5." "On any measuring date during the months of May through October,
inclusive, that the sum of the bypass flow at the Gato Creek diversion
plus the flow passing through the dam into the unnamed tributary is less
than 50 gpm, permittee shall release into Gato Creek at the "delivery
pipeline crossing" the lesser of (a) the amount necessary to bring the
total releases and bypasses to 50 gpm, or (b) 25 gpm minus the measured
flow passing through the dam."

See page one (1) and two (2) of the letter of October 21, 1997 from
Clifford W. Schulz, Attorney, representing the permittee, to the
California Department of Fish and Game, concerning the draft
Modification of Minimum Flow Requirements and Said Agreement.

The following are the CSPA comments concerning the above shown
measuring conditions for the minimum bypass flows in said draft
Agreement:

(a) The CSPA can not agree to the terms and condition of the draft
Agreement for measuring flows in Gato Creek and the unnamed tributary of
Gato Creek.

(b) Debris and silt can plug the V-notch weir which would render the
measuring of the flows useless at the weir and could allow the permittee
not to met the minimum bypass flow requirements at the risk of adversely
affecting the downstream public trust resources, which would not be
reasonable and in the public interest.

(c) Measuring the minimum bypass flows one a week is unreasonable and
could allow for non-compliance of the minimum bypass flow requirement
during the other six (6) days, putting at risk the downstream public
trust resources.

(d) Using a daily stream gauge reading at nearby San Jose Creek from
November 1 through April 30 for a measuring device is not reasonable
because it is a different watershed and has different flow circumstances
(runoff, upstream diversions, etc.).

(e) The SWRCB routinely, and in many cases, requires full time measuring
devices below dams and diversions which document the flows below points
of storage and diversion to ensure compliance with mandatory daily
minimum streamflow requirements.

(f) Dam owners in California are required to release water from their
dams at all times to keep fish that exist or are planted in good
condition below the dam. We reference California Fish and Game Code
5937. Consequently, it would reasonable to include a fulltime measuring
device below the reservoir dam on the unnamed tributary, and also below
the point of diversion on Gato Creek,to document the daily amount of
water bypassed from the dam and diversion.

(g) The permittee should be required, if they have not yet been, by the
SWRCB to install and maintain a fulltime measuring device that measures
the amount of water diverted from the Gato Creek watershed and also from
the reservoir by the permittee for project uses.

Further, there should be a mandatory daily minimum bypass flow
requirement below the dam in the unnamed tributary that keeps fish
species (all life stages) and their habitat, aquatic species (all life
stages) and their habitat, and any riparian habitat that exists below
the dam in good condition at all times.

Consequently, the permittee should be required by the SWRCB to install
and maintain for the life of the project, fulltime gauging devices below
the point of diversion on Gato Creek, and also below the dam on the
unnamed tributary, where the minimum bypass flows are required to be
maintained and/or should be maintained. Also, the fulltime gauging
devices would document the daily, monthly, and annual flows in Gato
Creek below the point of diversion and also below the dam on the unnamed
tributary. The fulltime gauges would also assist the Division of Water
Rights in monitoring compliance of the minimum flow requirements, and
also take actions against the permittee in the event of non-compliance
(evidence) by the permittee.

5. The draft Agreement between the Department of Fish and Game and the
permittee spells out the manner in which minimum bypass flows will be
applied in dry year conditions as well as in other water year conditions
as follows:

"6" In no year shall permittee be required to release more water from
the combination of the flows passing through the dam and the release at
the pipeline crossing than permittee stored in the reservoir during the
immediate past storage season. Should permittee believe, in any dry
year, that this provision will control releases, permittee shall notify
Fish and Game and will work with Fish and Game to provide releases at
such times and flow rates and may best protect riparian conditions below
the release point."

See page two (2) of the letter of October 21, 1997 from Clifford W.
Schulz, Attorney, representing the permittee, to the California
Department of Fish and Game concerning the Draft Modification of Minimum
Flow Requirements and said draft Agreement.

(a) The CSPA cannot agree to this term and condition of the draft
Agreement as follows:

(b) There may be federally listed threatened and endangered species and
their habitat in the Gato Creek watershed which could be affected by the
minimum bypass flow requirements, and these requirements may not be
adequate to protect these species and their habitat. i.e. endangered
southern steelhead; listed Red-Legged Frogs, and California Newt
(species of special concern).

(c) The Department of Fish and Game does not have any authority under
the federal Endangered Species Act to regulate federally protected
species and their habitat pursuant to the provisions of the federal
Endangered Species Act.

(d) The Department of Fish and Game does not have any authority to
regulate the terms and conditions of water right permits or to determine
whether minimum streamflow requirements should be reduced to satisfy the
permittee. That water right authority lies with the State Water
Resources Control Board, subject to formal public notice (due process)
and hearing. Consequently, the CSPA believes, in the event the permittee
requests to modify any and all mandatory conditions in its water right
permits in the future, the permittee should be required by the SWRCB to
file a petition with the SWRCB, subject to formal protests and a
hearing, if necessary.

(e) This provision of the draft Agreement solely addresses riparian
conditions below the release point, but fails to address federally
listed species, other fish species and federally listed aquatic species,
and other aquatic species in Gato Creek, and also below the dam in the
unnamed tributary to Gato Creek.

The CSPA request evidence (studies) from the permittee's consultant
that the Gato Creek watershed, and also below the point of diversion in
Gato Creek, and also below the dam in the unnamed tributary, does not
sustain any fish and aquatic species at all.
(f) This provision conflicts with federal and state law. Also, there is
no provision in the draft Agreement between the DFG and the permittee
that states the agreement must be in full compliance with state and
federal law.

(g) The CSPA request a written report prepared by the permittee's
consultant concerning the potential effects to federal and state
threatened and endangered species and their habitat in the Gato Creek
watershed, which includes consultation with the federal and state
agencies, which includes the necessary protection measures to protect
federal and state threatened and endangered species.

We request the permittee's consultant forward to the CSPA specific
formal and informal consultation letters between the responsible federal
agencies and the permittee.

6. The draft Agreement between the Department of Fish and Game and the
permittee spells out the installation of a measuring device which
measures the amount of water released from the pipeline into Gato Creek
as follows:

"7." "Permittee shall construct and maintain an outlet from the
delivery pipeline into Gato Creek and shall install a measuring device
reasonably satisfactory to Fish and Game which shall measure the amount
of water released from the pipeline into Gato Creek."

(a) We disagree with this provision of the draft Agreement as follows:

(b) The pipeline is a garden hose which is subject to damage by fire and
by animals. The pipeline should be redesigned by an engineer as a
pipeline (metal) which prevents damage from outside forces.

(c) The mandatory daily minimum flow should be released from the dam and
not from the pipeline. Releasing the water from the pipeline would
adversely affect about 1/4 of a mile of fish and aquatic habitat.

(d) State law requires the dam owner (the permittee) to release water at
all times from the dam to keep fish in good condition at all times. i.e.
California Fish and Game Code 5937. This provision of the draft
Agreement conflicts with state law.

(e) The authority to determine the location and type of measuring device
is that of the SWRCB and not the Department of Fish and Game.

(f) The measuring devices should be a fulltime measuring devices that
measures flows on a daily basis (24 hour basis) and should be located
directly below the dam.

7. The draft Agreement between the Department of Fish and Game and the
permittee spells out the installation of a pressure gauge at the
reservoir outlet to measure changes in reservoir storage as follows:

"8." "Permittee shall install and maintain a pressure gauge at the
outlet of the reservoir to measures changes in reservoir storage. The
gauge shall be read periodically as required to provide information on
total storage and water stored during the current water year. The gauge
shall be read whenever the Gato Creek diversion meter is read so that
diversions from the unnamed tributary can be calculated."

(a) The CSPA agrees and disagrees with this provision as follows:

(b) Of course a gauge at the reservoir should be installed and
maintained for the life of the project to measure changes in reservoir
storage.

(c) However, reservoir changes should be measured daily to accurately
record the reservoir changes for the life of the project and not simply
for the current water year or periodically and whenever the permittee
desires. (Our Emphasis) Also, measuring the storage daily would also
provide the Board and the public with the amount of water lost from
evaporation at the reservoir.

(d) It is our understanding the permittee stocks game fish into the
reservoir for private angling and private recreational benefits. Other
fish and aquatic species that frequent the Gato Creek watershed are most
likely diverted and entrained in the reservoir from upstream sources.
The SWRCB should require the permittee to maintain a mandatory minimum
pool requirement to maintain said fishery and aquatic resources and the
environmental integrity of said reservoir.

8. The draft Agreement between the Department of Fish and Game and the
permittee spells out the reporting procedures as follows:

"9." "Permittee shall maintain an annual operating report which sets
forth all weekly and other measurements made to comply with the terms of
its permit. The reported data shall include monthly diversion volumes
from Gato Creek and the unnamed tributary and all bypass flows.
Permittee shall annually provide Fish and Game with a copy of such
report available for inspection. Upon reasonable notice, permittee shall
provide Fish and Game with access to the Gato Creek diversion, the
reservoir, and the release points so that Fish and Game may monitor
compliance with the terms agreed to herein."

See page three (3) of the letter of October 21, 1997 from Clifford W.
Schulz, Attorney, representing the permittee, to the California
Department of Fish and Game concerning the Draft Modification of Minimum
Flow Requirements and said draft Agreement.

(a) The CSPA disagrees with this provision as follows:

(b) The annual operating report should be submitted to the Division of
Water Rights because the SWRCB has the authority to regulate said water
right permits and not the Department of Fish and Game.

(c) Said annual report must include daily diversion volumes and also
daily mandatory minimum flows below the points of diversion and storage.

(d) It is highly unlikely the Department of Fish and Game will inspect
the project weekly for compliance of the terms and conditions of said
Agreement.

9. The draft Agreement was apparently agreed to by Ronald D. Remple,
Chief, Environmental Services, of the Department of Fish and Game.

10. One of the main issues in the CSPA protest was that the permittee
should be required to allow public access to Edwards Reservoir for
public angling purposes pursuant to Section 781, CCR, Title 23. Public
access is mandatory under Section 781.

The Agreement between DFG and the permittee did not address this issue.
This is an unresolved issue which should be resolved pursuant to state
regulations.

11. It is my understanding that the petitioner proposes a development
project on the permittee's property. There is a potential that water
quality in the Gato Creek watershed could be effected by said
development and construction activities.

The agreement between the California Department of Fish and Game and
the petitioner does not provide any water quality protection measures
for the Gato Creek watershed to protect the beneficial uses of the
state's water. The permittee proposes construction and development
activities in the Gato Creek watershed which has the potential to have
adverse impacts to the beneficial uses of the state's water.

The Division of Water Rights should develop a water quality condition
that protects the beneficial use of the state's water in the Gato Creek
watershed resulting from any activities by the permittee.

The CSPA request the permittee's consultant (engineer) to answer this
letter. Thank you for allowing the CSPA the opportunity in answering the
permittee's consultant's letter of November 12, 1999.

This matter should not be set for hearing by the SWRCB and/or the
Division of Water Rights until the permittee has prepared and submitted
to the CSPA, subject to responses by the CSPA, all of the environment
studies requested by the CSPA in this submittal.

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. Ronald N. Sickafoose
Principal Engineer
Penfield & Smith
101 East Victoria Street
P.O. Box 98
Santa Barbara, CA 93102

Mr. Brian Trautwein, Environmental Analyst
Environmental Defense Center
906 Garden Street, Suite 2
Santa Barbara, CA 93101

Mr. Ed Harris, Director
Santa Barbara Urban Creeks Council
751 Olive Avenue
Carpinteria, CA 93013

Mr. Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Avenue
Woodland, CA 95695

Mr. Ronald Remple, Deputy Director
Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814

Mr. Anthony Spina, Staff
U.S. National Marine Fisheries Service
501 West Ocean Blvd., Suite 4200
Long Beach, CA 90802-4213

Ms. Korie Johnson, Staff
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

Mr. Diane Noda, Field Supervisor
U.S. Fish and Wildlife Service
Ventura Fish and Wildlife Office
2493 Portola Road, Suite B
Ventura, CA 93003

Interested Parties (Numerous)