Gato Creek comments to DWR SWRCB Oct96

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE

P.O. BOX 357

QUINCY, CALIFORNIA 95971

Mr. Charles Rich, Chief October 2, 1996

Application and Petition Unit #2

Division of Water Rights

P.O. Box 2000

Sacramento, CA 95812-2000

Re: Gato Creek Watershed; Change Petitions; Water Right Permit 17360 (Application 24985); Response by the California Sportfishing Protection Alliance to Letter of September 25, 1996 From Agent of Petitioner.

Dear Chief Rich:

We have reviewed the letter of comment of September 25, 1996, to you from Clifford Schulz representing the petitioner, regarding change petitions and the public trust complaints (DFG, SBUCC, and CSPA). We reference said letter.

The following are the comments of the California Sportfishing Protection Alliance (hereinafter know as "CSPA"):

1. The petitioner's agent missed the major issue in the CSPA letter of September 4, 1996 to the Division of Water Rights.

The CSPA requested the change petitions be noticed by the Division of Water Rights for public review and formal protests. The CSPA's, SBUCC's and DFG's protests against the original petition were dismissed and treated as public trust complaints. We are again requesting the change petition is noticed by the Division of Water Rights for public review so that the CSPA can file a formal protest against the amended change petition so that our due process rights are not violated. However, we submit the following requests:

(a) We are requesting the Division of Water Rights to hold the original change petition in abeyance until the Public Trust Complaints are resolved; and until the Petitioner completes the field studies and surveys.

(b) We are requesting the Division of Water Rights to hold the amended change petition in abeyance until the Public Trust Complaints are resolved; and until the Petitioner completes the field studies and surveys.

2. The petitioner's agent alleges that the CSPA and the Santa Barbara Urban Creek Council (SBUCC) "have seriously confused what is happening as as a result of the pending public trust complaints and what is proposed by the two pending change petitions".

We reference letter of September 25, 1996, from Clifford W, Schulz of Kronick, Moskovitz, Tiedemann & Girard to Chief Charles Rich, Application and Petition Unit #2, Division of Water Rights; at page 1.

3. The Petitioner's agent in the letter of September 25, 1996, stated the following:

"CALSPA first suggests that nothing has been done with respect to their public trust complaint even though more than two years have passed. Nothing could be further from the truth."

The Petitioner's agent goes on to speak to field studies and other research which have been on-going for several years.

The CSPA has been kept in the dark by the Petitioner and his agents regarding field studies and research which have been on-going for several years in the Gato Creek watershed.

The CSPA has never received from the Petitioner's agent a status report regarding the on-going field studies and research. Nor has the Petitioner's agent forwarded to the CSPA annual reports, or reports, or any material at all related to the on-going field studies and research.

The CSPA also has never received from the Division of Water Rights a status report regarding the the on-going field studies and research. Nor has the Division of Water Rights forwarded to the CSPA annual reports, reports, or any material at all related to the field studies and research.

The CSPA request the Division of Water Rights to require the Petitioner (and his agents) to forward to the CSPA copies of the following material:

(a) The name and address of the Petitioner's biologists who have, and who are, conducting the field studies and research on the Gato Creek watershed;

(b) A copy of the work plan developed by the Petitioner's biologists and approved by the Department of Fish and Game regarding on-going field studies and surveys;

(c) A copy of the results of field studies and research conducted by the Petitioner's biologists for the passed several years for the Gato Creek watershed;

(d) A copy of recent annual reports, recent reports, and any recent material prepared by the Petitioner's biologists regarding the on-going field studies and research.

4. The Petitioner's agent speaks for the Department of Fish and Game. In his letter of September 25, 1996, the Petitioner's agent stated as follows:

"The only reason that neither Mr. Doheny, the permit holder, nor Fish and Game has not presented the State Board with their formal recommendations for modification of downstream flow requirements is because Fish and Game has not completed the analysis needed to make such a final recommendation."

In order to complete the analysis and make final recommendations it is clear that field studies and surveys have to be completed.

(a) The Petitioner's letter of September 25, 1996, was not forwarded to the Department of Fish and Game based on the parties that were copied the letter. Only CSPA and SBUCC were shown on the copy list. As an attachment to this letter we are providing the Department of Fish and Game with a copy of that letter.

(b) We are requesting the Division of Water Rights confirm allegations made by the Petitioner's agent on behalf of the Department of Fish and Game in the agent's letter of September 25, 1996.

5. The Petitioner's agent also made the following statement in the agent's letter of September 25, 1996:

"In the meanwhile, through an informal agreement with Fish and Game, Mr. Doheny has doubled the minimum bypass flows at the Gato Creek diversion facility from those required by his water right permit. We, thereof, take strong exception to CALSPA's uninformed statements that nothing is being done in the arena and the implication that Mr. Doheny has not made good faith effort to address concerns by Fish and Game and the complainants, including CALSPA."

We are requesting the Division of Water Rights to require the Petitioner (and his agents) to provide the CSPA with the following information and material:

(a) A copy of the informal written agreement reached between the Petitioner and the Department of Fish and Game;

(b) If no such written agreement exist, a write-up from the Petitioner and the Department of Fish and Game regarding their verbal agreement (terms and condition) which were agreed to by both parties;

(c) A written statement from the Petitioner's agent regarding what constitutes the doubling of the daily minimum streamflows and whether the doubled daily minimum streamflows are mandatory (How much water in cfs);

(d) Copies of any written letters and memos between the Petitioner and the Department of Fish and Game which provides evidence that the daily minimum streamflows were doubled and agreed to by the Department of Fish and Game;

(e) A written statement by the Petitioner's agent which shows cause why the CSPA was not advised formally by the Petitioner regarding the doubling of the daily minimum streamflows in the Gato Creek watershed; and why the CSPA was not given a copy of the informal agreement;

(f) Evidence from the Petitioner's agent that shows that the minimum daily streamflows in the Gato Creek watershed were maintained at all times by the Petitioner;

(g) A statement from the Petitioner's agent which shows how the Petitioner measures daily minimum streamflows below the Petitioner's dam and diversion on the Gato Creek watershed.

6. The Petitioner's agent made the following statement to the Division of Water Rights:

"With respect to the pending petition for a change in place of use, we are confused by the CALSPA letter. The change in place of use petition has been carefully explained on numerous occasions".

(a) The CSPA was not invited by the Division of Water Rights to participate in any meetings and/or teleconference calls between Chief Charles Rich of the Division of Water Rights and the Petitioner's agent regarding the amended petition change. Consequently, the CSPA was not advised of the amended change petition as agreed to by Chief Rich of the Division of Water Rights and the Petitioner's agent until the CSPA received a copy of the Division of Water Rights letter of August 15, 1996. Consequently. we were not advised of the amended change petition on "numerous occasions" as alleged by the Petitioner's agent.

7. Further on this matter, the Petitioner's agent made the following statement to the Division of Water Rights:

"It constitutes [amended change petition] a simple shift on the location of an orchard from one spot on the Doheny property to another -- with no increase in the total acreage allowed to be irrigated. In fact, the total acreage within the authorized place of use was reduced through the change request. We fail to understand why CALSPA continues to raise this issue, when over two years the State Board properly treated its protest as a public trust complaint which is being handled as described above."

We are requesting the Division of Water Rights require the Petitioner's agent to provide the CSPA with the following information and data:

(a) A copy of the original change petition application filed by the Petitioner and its agents with the State Water Resources Control Board;

(b) A copy of the amended change petition application filed by the Petitioner and its agent with the State Water Resources Control Board;

(c) A written statement by the Petitioner's agent that shows what the petitioner proposes to do with the lands which are being deleted from use based on the Petitioner's agent statement ("It constitutes [amended change petition] a simple shift on the location of an orchard from one spot on the Doheny property to another -- with no increase in the total acreage allowed to be irrigated").

(d) The method of transplanting the orchard from one location to another "spot".

(e) The proposed purpose of use and the amount of water used at the location where the orchard is located, but will be changed to another "spot".

(f) A written statement from the Petitioner's agent which shows that the total acreage within the place of use was reduced by the amendment to the change petition. We need to know the specific reduction to the existing and proposed acreage under the amendment to the change petition.

(g) A written statement from the Petitioner's agent regarding the status of Application 30289. It should be noted that Application 30289 was not noticed by the Division of Water Rights for formal protests.

8. The Petitioner's agent made the following statement to the Division of Water Rights:

"With respect to the newer change petition to modify the characterization of diversions to reflect the State Board's first in first rule for reservoir operation accounting, we believe that your August 15, 1996, letter explanation was very clear. The change will not impact in any manner whatsoever, the pattern of diversions or the quality of water diverted pursuant to Mr. Doheny's the water right permit -- a pattern that has been occurring for more than 10 years. The change will not affect, in any way, the volume of bypass flows which now exist in lower Gato Creek or the availability of water to increase bypass flows in the future, if that is the outcome of the ongoing public trust complaint process. The change, as you corrected concluded in your earlier letter, is an accounting change that will have no impact on the physical world as it now exist in and around Gato Creek."

(a) We are requesting the Division of Water Rights to provide the CSPA with the statutory requirements concerning "the State Board's first in first rule for reservoir operation accounting".

(b) The CSPA request from the Division of Water Rights in what specific section of the California Water Code "the State Board's first in first rule for reservoir operation accounting" applies and is mandated.

(c) The CSPA request from the Division of Water Rights in what specific section of the California Code of Regulations, Title 23, "the State Board's first in first rule for reservoir operation accounting" applies and is mandated.

(d) The CSPA request from the Division of Water Rights whether "the State Board's first in first rule for reservoir operation accounting" prevails over the California Environmental Quality Act and its Guidelines.

(e) The CSPA request from the Division of Water Rights whether "the State Board's first in first rule for reservoir operation accounting" prevails over the Public Trust Doctrine, Section 5937 of the California Fish and Game, and Section 782; CCR; Title 23.

(f) The CSPA request from the Division of Water Rights whether "the State Board's first in first rule for reservoir operation accounting" was adopted by the SWRCB in accordance with public hearings.

(g) We are requesting from the Division of Water Rights whether the Petitioner's historic operations violated any terms and conditions in its water right permit after it was issued by the SWRCB. We are requesting the Division of Water Rights to cite the specific violations of the terms and conditions of the water right permit requirements.

(h) It is our understanding the Petitioner proposes to use the reservoir under Permit 17360 (Application 24985) and the amended change petition for recreation.

In accordance with Section 781, CCR; Title 23; we are requesting the Division of Water Rights to allow public access for the purpose of fishing to that reservoir. We reference Section 781, CCR; Title 23.

9. The Petitioner's agent made the following statement:

"But for the Urban Creeks Council to contend that the adoption of this accounting methodology should be applied retroactively to modify (and in this case reduce) previously approved water right diversions is, quite frankly, outrageous." (Emphasis Added)

What is outrageous is that the State Water Board forgot to protect the public trust resources and assets of the Gato Creek watershed when it approved the Petitioner's water right permit.

10. The Petitioner's agent made the following statement:

"We inform the State Board, CALSPA and the Urban Creeks Council that Mr. Doheny is committed to working with Fish and Game in its effort to determine what changes, if any, need to be made in the operation of his project to protect downstream aquatic resources. When studies are completed and reviewed we hope that we will be able to present a joint request with Fish and Game for amendments to the terms and conditions of the water right permits to improve downstream conditions. In the meanwhile, processing the pending change petitions will not compromise this effort in any way."

We want to make it very clear to the Petitioner and his agent that any agreement between the Department of Fish and Game and the Petitioner at the conclusion of the field studies should include the CSPA.

(a) We are requesting the Petitioner and its agent provide the CSPA with a copy of any draft agreement between the DFG and the Petitioner.

We also want to make it very clear to the Division of Water Rights that processing the amended change petition without public notice (and opportunity for protests) and without the preparation of a CEQA document, is outrageous; unreasonable; not in the public interest; violates the due process rights of the CSPA, and other interested parties; and would also violate the California Environmental Quality Act and its Guidelines.

11. In its August 15, 1996 letter to CSPA, SBUCC, and the DFG, the following was stated by the Division of Water Rights:

"Division staff intend to proceed with the processing of the petition. This will include development of monitoring terms to ensure accountability of all diversions and compliance with the requirements of the California Environmental Quality Act." (Emphasis Added)

We disagree with the conclusion made by the Division of Water Rights that the proposed monitoring will comply with the California Environmental Quality Act and its Guidelines.

A CEQA document would disclose and evaluate the effects to the human environment of the Gato Creek watershed. As a result of the environmental evaluations, mitigation measures would be developed, and then monitoring would follow. Consequently, the Division of Water Rights letter of August 15, 1996, regarding CEQA and its Guidelines is in error of the law.

The State Board is mandated to comply with the California Environmental Quality Act and its Guidelines, and prepare a CEQA document before it issues water right applications and change petitions as follows:

The duty to evaluate adverse environmental impacts does not depend upon a showing by the public [CSPA - SBUCC], or even other public agencies (DFG), that there will be impacts. The project proponent [Doheny] must present substantial evidence from which a reasoned conclusion may be reached that there will not be significant adverse impacts. We reference Laurel Heights, supra 47 Cal 3d. at 405-406. The duty to provide evidence rests with the SWRCB, and not with the public [CSPA]. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 304-305 Section 21002, Section 21080.5(d)(2)(l).

The burden is not shifted at the administrative level to those [CSPA - SBUCC DFG] challenging projects to present evidence of adverse impacts before the agency [SWRCB] can be required to assess whether such impacts exists. The failure to assemble adequate information for a meaningfully environmental review cannot be used to justify a finding of no significant impact. We reference Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at 311-312; Christward Ministry v. Superior Court (1986) 184 CalApp.ed. 180, 197 and Laurel Heights, supra, 47 Cal.ed at 405. Otherwise, the agency [SWRCB] would be allowed to avoid an attack on the adequacy of the information simply by not requiring the submission of such information. We reference Kings County, supra, 221 Cal.App.ed at 723.

We are requesting the Division of Water Right prepare a CEQA document for the amended change petitions.

12. The Division of Water Rights in its letter of August 15, 1996 stated the following:

"However, before the Division modifies the bypass requirements, evidence which justifies such an action must be developed. Since these bypass requirements were established as a result of the original environmental review process for Permit 17360 and the proposed changes would not appear to contribute any additional impacts, we believe that any change orders issued pursuant to the pending petitions do not need to address the bypass issue."

We are seriously troubled with the above statement by the Division of Water Rights. The bypass streamflow requirement issue was the heart of the CSPA protest on the original change petition. It still is the heart of the proposed amendment change petition as far as the CSPA is concerned.

The Division of Water Rights wants it both ways. On one hand the Division claims that evidence is required to justify any modification to the bypass flow, while on the other hand, the Division claims that the proposed changes would not appear to contribute any additional impacts and any change orders issued pursuant to the pending petitions do not need to address the bypass issue. We believe the the bypass flow issue must be disclosed, evaluate, and mitigated in a CEQA document; and that the Division findings regarding the bypass flow issue must be supported by evidence before the approval of the amended change petition.

The CSPA request from the Division of Water Rights the following records:

(a) A copy of the original CEQA document prepared for Permit 17360;

(b) A copy of the studies, evidence, and findings made by the Division that justifies the bypass flow in Water Right Permit 17360 (Application 24985).

The agreed (Division - Petitioner) to amended change petition would allow the Petitioner to divert as follows: "The combined rate of direct diversion and diversion to offstream storage would not exceed the existing maximum rate of diversion to offstream storage, or 4.14 cfs."

While the public trust resources and environment of Gato Creek gets a bypass flow of a few gallons of water, the diverter is allowed 4.14 cfs.

We submit and recommend to the Division regarding the amended change petition that the Petitioner should release from his dam and diversion a minimum bypass flow of 4.14 cfs at all times during the period of direct diversion and storage to protect the downstream beneficial use of the state's water, including any steelhead trout (all life stages) which may migrate into Gato Creek. As evidence we submit and reference the Public Trust Doctrine which requires that the beneficial uses of the state's water are balanced.

We are requesting the Division of Water Rights to require the Petitioner to conduct instreamflow studies which evaluates the bypass flow in Permit 17360; the doubling of the bypass flow; and the CSPA recommended bypass flow of 4.14 cfs.

13. We are requesting from the Division of Water Rights and the Petitioner's agents information, data, and copies of documents, memos, material, fields, research documents, etc. as requested above so that we are not "confused".

14. We are requesting from the Division of Water Rights a status report regarding the Public Trust Complaints. Who from the Division of Water Rights is working on the complaints, when did the investigation commence, and when will the written investigative report be completed?

Respectfully Submitted

_______________________________________

Robert J. Baiocchi, Consultant

For: California Sportfishing Protection Alliance

P.O. Box 357

Quincy, CA 95971

Bus Tel: 916-836-1115 or 916-283-1007 (Law Office); Fax: 916-283-4999

Attachments: All Parties

Certificate of Service

Charles A, Rich, Chief

Application and Petition Unit #2

Division of Water Rights

P.O. Box 2000

Sacramento, CA 95812-2000

Jim Canaday

Environmental Unit

Division of Water Rights

P.O. Box 2000

Sacramento, CA 95812-2000

Jerry Mensch, Water Rights

Environmental Services

Department of Fish and Game

1416 Ninth Street

Sacramento, CA 95812-2000

Kenneth Wilson

Maurice Cardenas

Department of Fish and Game, Region 5

530 East Montecito Street, Room 104

Santa Barbara, CA 93103

Brian Trautwein, Executive Director

Santa Barbara Urban Creeks Council

5771 Leeds Lane

Goleta, CA 93117

Mike Jackson, Esquire

P.O. Drawer 207

Quincy, CA 95971

Jim Crenshaw, President, CSPA

1248 East Oak Avenue, Suite D

Woodland, CA 95695

Clifford Schulz, Esquire

Petitioner's Agent

Kronick, Moskovitz, Tiedemann & Girard

400 Capitol Mall

Sacramento, CA 95814

Interested Parties