CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
P.O. BOX 357
QUINCY, CALIFORNIA 95971
Charles Rich, Chief September 4, 1996
Application and Petition Unit #2
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Water Right Permit 17360 (Application 24985) and Water Right Application 30289; Change Petition of April 3, 1996; Unnamed Tributary to Gato Creek and also Gato Creek; Response to Division of Water Rights letter of August 15, 1996; California Sportfishing Protection Alliance, Protestant and Complainant.
Dear Chief Rich:
This is in response to your letter of August 15, 1996 regarding a petition to change the place of use by Doheny et al., Water Right Permit 17360; and also an additional Petition to Change Water Right Permit 17360 filed on April 3, 1996 by Doheny et al. Please see attached letter of August 15, 1996.
We reference letter of August 15, 1996 to Santa Barbara Urban Creeks Council, California Sportfishing Protection Alliance, and two offices of the California Department of Fish and Game; from Charles Rich, Chief, Application and Petition Unit #2, Division of Water Rights, State Water Resources Control Board.
The following are the comments of the California Sportfishing Protection Alliance (hereinafter known as "CSPA") regarding the comments in your letter of August 15, 1996, and additional new information and comments:
1. On December 13, 1993 the CSPA filed a public trust protest on environmental grounds against a petition to change the place of use by Doheny et al.
2. On April 14, 1994, the Division decided to treat protests filed against said change petition as public trust complaints against Water Right Permit 17360. The California Department of Fish and Game, Santa Barbara Urban Creeks Council, and the CSPA are part of that complaint. However, said protests by the parties against the change petition were not accepted by the Division of Water Rights because of treating the protests as public trust complaints.
The CSPA's protest against the original change petition was dated December 13, 1993. The treating of the CSPA protest as a complaint was made by the Division of Water Rights on April 14, 1994 without any consultation with the CSPA. Two (2) years and four months have passed since the Division decided and determined to treat all of the protests against the change petition as public trust complaints. Since April 14, 1994, the permittee has been allowed by the SWRCB to operation the storage facilities and diversion works, and use the state's water without being affected by the protests and the complaints.
We would appreciate a detailed status report from your offices regarding the status of the public trust complaints at this place in time. When will the Division's investigation report of the complaints be completed and submitted for public review? When will the Division refer the complaints to hearing?
3. On April 3, 1996 Doheny et al. filed an additional change petition with the SWRCB. To date that petition has not been noticed by the SWRCB for public review and protests.
In your letter of August 15, 1996, you stated that circulation of a public notice for the proposed petition change of April 3, 1996 is not required pursuant to Section 795 of the CCR; Title 23. You provided two reasons why to exempt the Change Petition of April 3, 1996 from being noticed to the public, and also noticed to local, state, and federal agencies. We object and disagree with your decision to exempt the Change Petition of April 3, 1996 from public notice for the following reasons.
(a) The Division's exemption of providing public notice of said change petition violates the due process rights of the public (and the CSPA and other interested parties), and may very well violate the consultation process under the federal and state Endangered Species Act. Processing a water right change petition without public review and the opportunity for interested parties with standing on the Gate Creek watershed to submit formal protests simply violates the due process rights of the public and those parties. We believe full public disclosure is part of the SWRCB's water right process.
We are requesting the Division of Water Rights provide full public notice of the Change Petition of April 3, 1996 filed by Doheny et al. so that the public and interested parties such as the CSPA, and also the local, state and federal agencies have the opportunity to file formal protests. We do not believe that Section 725 of CCR, Title 23, was intended to exclude the public and interested local, state, and federal agencies from filing protests on a change petition in a watershed is that is highly controversial.
(b) You stated that the Division's staff believe that approval of the proposed change would not result in any change to present diversion practices nor should there be an impairment to streamflow below the permittee's point of diversion beyond that already authorized by Permit 17360. We disagree with your conclusion.
To begin with the existing diversion practices by the permittee are highly controversial with the public (SBUCC and CSPA) and a state agency (DFG).
There is also the potential that the present practices of the project under Water Right Permit 17360 is violating the federal Endangered Species Act. i.e. red-legged frog species and their habitat and other protected species and their habitat. Consequently, for the Division to exempt the Change Petition from public review and protests would violate the federal ESA in the event any threatened and endangered species and their habitat are located in the watershed, and could be affected by the existing project and subject change petition.
The timing of streamflow in the Gato Creek watershed will be affected because of changes in the direct diversion rate and also the storage diversion rate. The season for direct diversions will also be altered and affected. The changes to the timing of streamflow and season of direct diversion changes as a result of the amended Change Petition in the Gato Creek watershed has the potential to cause direct, indirect, and cumulative impacts to the public trust resources below the points of diversion.
Consequently, the Change Petition of April 3, 1996 and the amendment thereof, should be noticed by the Division of Water Rights for public review, and agency review, by the Division.
4. The Division of Water Rights requires the preparation of CEQA documents for water right applications and petition changes. In many cases the Environmental Unit of the Division prepares the CEQA documents. I have reviewed a number of Draft CEQA documents prepared by the Division's Environmental Unit. Draft CEQA documents are submitted for public review when an interest party request a copy of that draft document. We have a standing request with the Division to review and comment on all CEQA documents prepared by the Division.
We believe the Division of Water Rights should require the preparation of a CEQA document for the Change Petition of April 3, 1996 and amendments thereof. We are requesting a copy of that draft CEQA document for our review and comment.
In the CSPA protest of December 13, 1996, we spelled out the mandates of CEQA and its Guidelines. We recommend you read and review the CSPA protest. We recommend you include the Division's Environmental Unit in any and all decisions you might make with the CEQA requirements for the proposed Change Petition.
5. New Information: The U.S. National Marine Fisheries Service is proposing to list steelhead trout as endangered along coastal streams in southern California. The Gato Creek watershed is a coastal stream.
In the CSPA protest of December 13, 1993, we claimed that the Gato Creek watershed did sustain steelhead trout species and their habitat.
It is our understanding the the USNMFS requires an informal conference when a species is about to be listed. We recommend the Division and the Petitioner initiate the informal conference with the USNMFS regarding the Change Petition.
6. The Division of Water Rights should consult with Jerry Mensch, Water Rights, Environmental Services, Department of Fish and Game, Sacramento Office, and obtain an opinion from the DFG to determine whether Gato Creek did sustain steelhead trout and their habitat, and also whether the Gato Creek watershed has the potential to sustain southern steelhead trout species and their habitat provided adequate daily streamflows flow down Gato Creek below the permittee's points of diversion.
In the event steelhead trout have the potential to migrate into Gato Creek, the CEQA document for the Change Petition of April 3, 1996, should treat steelhead trout and their habitat as endangered because of the proposed listing.
This is another good legal reason to provide public notice of the Change Petition of April 3, 1996.
7. Red-legged frog species and their habitat may exist in the Gato Creek watershed. The Division of Water Rights should consult with Jerry Mensch, Water Rights, Environmental Services, Department of Fish and Game, Sacramento Office, and obtain an opinion from the DFG to determine whether the Gato Creek watershed sustain red-legged frog species and their habitat.
The red-legged frog species were recently listed for protection under the federal ESA.
In the event red-legged frog species and their habitat exist in the Gato Creek watershed, the CEQA document for the change petition of April 3, 1996, should evaluate the direct, indirect, and cumulative impacts to this species from the existing project, and also the Change Petition.
The Division of Water Rights and the petitioner need to consult with the federal agency responsible for protecting the red-legged frog species and their habitat in the event this species exist in the Gato Creek watershed.
8. The Division stated in its August 15, 1996 letter that before the Division modifies the bypass (flow) (environmental) requirements below the permittee's point of diversion, that evidence which justifies such an action must be developed.
That statement raises an interesting question. Did the Division and/or the SWRCB have the biological evidence to justify a bypass flow requirement of 50 gallons per minute when it approved that bypass flow requirement for Gato Creek for Water Right 17360?
Please provide this writer with a copy of the scientific study and finding approved by the SWRCB that determined that a 50 gallon per minute bypass flow requirement will protect fish, aquatic species, water quality, riparian habitat, and other public trust resources in Gato Creek below the points of diversion.
We know of no biological evidence that justifies the existing bypass flow requirement that a release of water of 50 gallons per minute will keep fish in good condition at all times below the permittee's dam(s) in the Gato Creek watershed under Water Rights Permit 17360 and the proposed Change Petition, and also protect public trust resources in the Gato Creek watershed.
We are requesting the permittee be required by the CDFG and the SWRCB to release water from both dams that keep fish in good condition at all times pursuant to California Fish and Game 5937 and Section 782 of CCR; Title 23 for the Petitioner's Change Petition.
9. You stated that the permittee has hired a fishery biologist to conduct studies to determine the amounts of water necessary to be bypassed from the permittee's point of diversion (to keep fish in good condition at all times).
In conjunction with a fishery flow study, we believe that the permittee's should be required by the Division to conduct a detailed hydrology analysis of the Gato Creek Watershed (impaired flows and unimpaired flows). We believe the Division needs to have the daily and monthly flow information and data which shows the amount of water in the watershed, and the amount of water diverted and stored by the permittee before it reviews "evidence" to determine the amount of water necessary to protect public trust resources below the points of diversion.
10. The amended Change Petition of April 3, 1996, as detailed in your letter of August 15, 1996, was not very clear with changes to Water Right Permit 17360 and the proposed Change Petition. We have questions regarding the Change Petition and Water Right Permit 17360 which should be answered by the Division. Those questions are as follows:
(a) The Division's letter of August 15, 1996 did not provide a description of the project under the proposed Change Petition. That letter refers to one (1) point of diversion and refers to an off-stream reservoir.
The permittee has two (2) points of diversion on the Gato Creek watershed. The major dam that forms the 644 acre-foot reservoir is an on-stream reservoir located on a unnamed tributary to Gato Creek. That dam is 120 feet high. The other point of diversion is located on Gato Creek. That diversion is a diversion dam which diverts water to the large reservoir.
Your description of the proposed changes to the Change Petition should disclose and describe the rate and the amount of water diverted from the on-stream dam and reservoir on the unnamed tributary to Gato Creek; and the rate of diversion and the amount of water diverted from the diversion dam on Gato Creek. The Division should also disclose the bypass flow requirements from both dams. Please provide that information and data to the CSPA and other interested parties.
(b) The Original Change Petition, which was noticed by the Division in 1993, requested a change to the irrigated place of use to be 322.5 acres. Also the records for 1993 for the Original Change Petition show that the stored water and the directly diverted water were used to irrigate 192 acres of avocados trees; and also the water is piped for 250 cows and 5 horses. (Our Emphasis)
Your letter of August 15, 1996, did not disclose and describe whether the Change Petition of April 3, 1996 and amendment thereof, request an increase from 192 acres to 322.5 acres, nor did it provide any information on the amount of land to be used at the places of use for the water diverted and stored.
We are requesting that the Division provide the CSPA and other parties with the information and data which shows the total amount of acres to be irrigated as a result of the Change Petition of April 3, 1996 and amendment thereof, including the amount of water to be used for cows and horses (stockwatering), and the amount of water to be used for domestic purposes.
(c) The Division's notice in 1993 did not disclose and describe whether the 250 cows and 5 horses graze near or in the Gato Creek watershed. Consequently, there is a potential water quality problem in the event the cows and horses are allowed to graze near or in the stream without adequate fencing to protect water quality.
Please have the petitioner provide you and your staff with this important water quality information. This potential water quality issue should be disclosed and evaluated in the CEQA document for the proposed Petition Change. Note, full disclosure is required by CEQA regarding the potential effects to the environment of the Gato Creek watershed. We reference CEQA and its Guidelines.
(d) Will the 6,000 gallons per day by direct diversion from April 1 to December 31 of each year for irrigation purposes be deleted from Water Right Permit 17360 as a result of the proposed Change Petition, as amended?
(e) Are there fulltime measuring devices below the points of diversion in Gato Creek (diversion dam) and the unnamed tributary to Gato Creek (major 120 foot high dam) to measure the amount of water bypassed at all times to protect public trust resources below the dams? If not, how will the Division be able to measure the amount of water bypassed so that the permittee is complying with the bypass flow requirement?
Please provide the CSPA with answers to the above questions.
(f) Is there a fulltime measuring device in the existing on-stream reservoir to determine the daily and monthly amount of water stored? If not, how will the Division be able to measure the amount of water in storage to determine whether the permittee is storing more water than authorized (amount and season)?
Please provide the CSPA with answers to the above questions.
(g) Is there fulltime measuring devices in the diversion works (pipes, ditches, etc.) from the existing on-stream reservoir to determine the amount of water diverted? If not, how will the Division determine whether the permittee is diverting more water than authorized?
Please provide the CSPA with answers to the above questions.
(h) Has the permittee diverted unauthorized water as a result of the diversion and storage practices? i.e. direct diversion and storage.
Please provide the CSPA with an answer to the above question.
11. The Change Petition was filed by the permittee on April 3, 1996. The Change Petition was recently amended by you and the permittee's attorney. The amended Change Petition has not been notices. There are many change petitions and water rights applications, which have be noticed, pending before the Division at this time which are ahead of the proposed amended change petition and have priority by date.
We recommend and urge the Division not to provide special treatment to any petitioner and his attorney, and that the playing field should be level for all applicants and petitioners, and that all change petitions and water right applications with priority of date should be processed by the Division before the amended Change Petition of April 3, 1996.
12. We are formally requesting you and your staff to stop processing the amended Change Petition, and provide public notice and the opportunity for protests from interested parties. We are also requesting the Division to prepare and/or have prepared a CEQA document for the amended Change Petition because of the potential direct, indirect, and cumulative to public trust resources as noted in this letter.
13. In the event this letter of comments is ignored by the Division, please forward a copy of the approved change petition, the amendments to Water Right Permit 17360, the draft and final CEQA document for the Change Petition, including all required CEQA filings, and copies of the Division's and Petitioner's consultation letters with the DFG, USNMFS, and the U.S. Fish and Wildlife Service, and responses to the consultation letters from those agencies.
14. As the matter now standings, based on your letter of August 15, 1996, we plan to file a petition of reconsideration with the SWRCB.
15. Pursuant to the California Public Information Act, we are requesting copies of the following documents from the Division regarding the Change Petition:
(a) A copy of the Petitioner's Change Petition of April 3, 1996;
(b) A copy of the Petitioner's amended Change Petition of April 3, 1996; and
(c) A copy of Water Right Permit 17360, which includes the terms and conditions in the permit.
A written response is appreciated.
Respectfully Submitted
________________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-836-1115 (Home Office), 916-283-1007 (Law Office) or 916-283-3767 (Quincy Office); Fax: 916283-4999 (Law Office)
Attachment: All Parties
Certificate of Service
Charles Rich, Chief
Application and Petition Unit #2
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
(Original)
Jerry Mensch, Water Rights
Environmental Services
Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
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
John Buse, Esquire
Santa Barbara Environmental Defense Center
c/o 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
Steve Volker, Esquire
Sierra Club Legal Defense Fund
180 Montgomery Street, Suite 1400
San Francisco, CA 94104
Timothy M. Doheny, et al.
Permittee and Petitioner
c/o Ronald Sickafoose, P.E.
Penfield & Smith
P.O. Box 98
Santa Barbara, CA 93102
Clifford Schulz, Esquire
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall
Sacramento, CA 95814
Interested 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
Steve Herrera, Asst. Supervisor
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
Timothy M. Doheny, et al., Petitioner
c/o Ronald Sickafoose, P.E.
Penfield and Smith
P.O. Box 98
Santa Barbara, CA 93102
Clifford Schulz, Esquire
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall
Sacramento, CA 95814
Interested Parties