CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
P.O. BOX 357
QUINCY, CALIFORNIA 95971
Mr. Ed Dito, Chief November 15, 1996
Application and Petition Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Public Trust Complaint; California Sportfishing Protection Alliance and Santa Barbara Urban Creeks Council; McCoy Creek and Glenn Anne Creek; Santa Barbara County
Dear Mr. Dito:
On November 4, 1996 the California Sportfishing Protection Alliance (hereinafter known as "CSPA" and the Santa Barbara Urban Creeks Council (hereinafter known as "SBUCC") filed a Public Trust Complaint against University Exchange Corporation's Change Petition. That complaint was filed with you representing the Division of Water Rights.
We have reviewed the Petition For Change filed by the Petitioner [University Exchange Corporation] with the Division of Water Rights, dated September 29, 1995. We find the Petition For Change filed on September 29, 1996, failed to have sufficient information and data as required, and was deficient and should not have been accepted and noticed by the Division of Water Rights as follows:
1. In the "Petition For Change Environmental Information" under "Fish and Wildlife Concerns" at pages 4 and 5, the information and data which should have been included in the environmental information was not included. Without this information and data the Division's Environmental and Hearing Units cannot determine whether the Petition For Change will have potential direct, indirect, and cumulative impacts to fish and wildlife resources, and other public trust resources of the affected streams.
The Environmental Information document contains a "note". That "note" states that: "Items 9-17 will be submitted as soon as formal review has been completed by Fish & Game representatives."
(a) Under Fish and Wildlife Concerns in the Petitioner's Environmental Information Document, at Item No. 11, the following is stated:
Question by Division - "According to the DFG representative, will your CHANGES require a Streambed Alteration Agreement?"
Petitioner's Answer - "F&G comments to follow".
(b) Under Fish and Wildlife Concerns in the Petitioner's Environmental Information Document, at Item No. 12, the following is stated:
Question by Division - "According to the DFG representative, do any resident or migratory game or non-game fish species occur in the affected stream?"
Question by Division - "If so, what species?"
Question by Division - "What season of the year do they occur in the stream?"
Petitioner's Answer - NO ANSWER.
(c) Under Fish and Wildlife Concerns in the Petitioner's Environmental Information Document, at Item No. 13, the following is stated:
Question by Division - "According to the DFG representative, do any plants or animals which are (1) federally identified as candidate, threatened or endangered; (2) state listed as rare, threatened or endangered; or listed by the DFG Natural Diversity Data Base, occur in the project area?"
Question by Division - "Will they be impacted by the CHANGES?"
Question by Division - "If so, identify the species and explain how they will be impacted:"
Petitioner's Answer - NO ANSWER.
(d) Under Fish and Wildlife Concerns in the Petitioner's Environmental Information Document, at Item No. 14, the following is stated:
Question by Division - "Does the DFG representative expect that your CHANGES will have an adverse effect on any resident or migratory fish populations, any wildlife populations, or any rare or endangered plant or animal species?"
Question by Division - "If so, explain."
Petitioner's Answer - NO ANSWER.
(e) Under Fish and Wildlife Concerns in the Petitioner's Environmental Information Document, at Item No. 15, the following is stated:
Question by Division - "What measures relating to your CHANGES have been proposed by the DFG representative to protect fish, wildlife or endangered or rare species:"
Petitioner's Answer - NO ANSWER.
(f) Under Fish and Wildlife Concerns in the Petitioner's Environmental Information Document, at Item No. 16, the following is stated:
Question by Division - "Will you make changes in your project as recommended by DFG?"
Question by Division - "If so, explain."
Petitioner's Answer - NO ANSWER.
(g) Disregard Item No. 17 - No wildlife enhancement has been proposed by the petitioner.
(h) Under Fish and Wildlife Concerns in the Petitioner's Environmental Information Document, at Item No. 18, the following is stated:
Question by Division - "Existing Storage or Diversions - If you currently have an interest in any other appropriate water project in the same watershed as this project, answer the following additional questions for each project:"
Question by Division - "Does the project have fish and wildlife protection requirements?" "If so, list the permit number and specific protection requirements for each project:"
Petitioner's Answer - THE PETITIONER ALLEGES NOT APPLICABLE!.
(i) Permit 20041 does not have fish and wildlife protection measures. The CSPA and SBUCC filed the public trust complaint to have the Division order fish and wildlife protection measures in Permit 20041 as a result of the Change Petition.
We reference Petition For Change Environmental Information; Application 26813; Permit 20041; Certified by Danny G. Wynn, P.E.; September 29, 1995; at pages 4 & 5.
2. We are requesting you forward to me a copy of information and data submitted by the petitioner to the Division for items 9-17. We are also requesting whether the environmental information and data for items 9-17 was submitted by the petitioner prior to August 15, 1996. It should be noted that the subject change petition was noticed by the Division on August 15, 1996.
3. In the "Petition For Change Environmental Information" under "Description Of Changes To Project" at page 1, the following is stated by the petitioner's agent:
"2. Modification of the creek bypass requirements to allow a positive bypass of creek flow in an amount of about 25 GPM at Weir No. 1. The original bypass requirement of 60 GPM will be maintained at the lower weir."
Please provide the following information:
(a) Weir No. 1 - Was the minimum daily bypass flow of 25 GPM based on the results of scientific instreamflow studies? If so, please forward a copy of those studies.
(b) In the event the minimum daily bypass flow of 25 GPM was not based on scientific instreamflow studies, how will the Division determine that the 25 GPM will provide sufficient water at all times to protect public trust resources in the downstream areas to the Pacific Ocean in accordance with Section 782; CCR; Title 23?
(c) We do know the daily minimum streamflow requirements below Weir #1 and the lower weir were developed to protect downstream water rights and not public trust resources.
(d) The petitioner has stated that: "Modification of the creek bypass requirements to allow a positive bypass of creek flow in an amount of about 25 GPM at Weir No. 1." (Our Emphasis)
(e) We need to be advised from the Division what does "about 25 GPM" mean.
(f) Lower Weir - Was the minimum daily bypass flow of 60 GPM based on the results of scientific instreamflow studies? If so, please forward a copy of those studies.
(g) In the event the minimum daily bypass flow of 60 GPM was not based on scientific instreamflow studies, how will the Division determine that the 60 GPM will provide sufficient water at all times to protect public trust resources in the downstream areas to the Pacific Ocean in accordance with Section 782; CCR; Title 23?
Pursuant to Section 782; CCR; Title 23; we are requesting the petitioner is required by the Division to conduct scientific instreamflow studies to determine the daily amount of water necessary to protect the public trust resources below both weirs at all times. i.e. Steelhead Trout [all life stages]; Red Legged Frog; Western Pond Turtle; Two-Striped Garter Snakes, Aquatic Species; etc.
4. In the "Petition For Change Environmental Information" under "Environmental Setting" at page 3, the following is stated by the petitioner's agent:
The Division's Question - "What changes in the project site and surrounding area will occur or are likely to occur because of the CHANGES and operation of your project"?.
The Petitioner's Answer - "Approximately 208 Ac. of brush will be removed as a part of future orchard development. Trees will be planted. Irrigation pipelines and systems will be installed."
Please provide the following information:
(a) The Division's public notice of August 15, 1996, did not disclose that 208 acres of brush would be removed as a result of the Change Petition.
(b) The removal of 208 acres of "brush" has the potential to cause direct, indirect, and cumulative impacts to: wildlife species and their habitat; water quality; fishery and aquatic species and their habitat; threatened and endangered species and their habitat; and other public trust resources. Also the "brush" may be riparian habitat.
(c) The petitioner's environmental information is not a CEQA document. Under CEQA and its Guidelines, the Division is the lead agency and is responsible for the preparation of a CEQA document. The CEQA document should disclose, evaluate, and mitigate the potential direct, indirect, and cumulative impacts to: wildlife species and their habitat; water quality; fishery and aquatic species and their habitat; threatened and endangered species and their habitat; and other public trust resources; as a result of the removal of 208 acres of "brush" and the installation of pipelines and the irrigation system.
5. In the "Petition For Change Environmental Information" under "Item No. 6" at page 3, the following is stated by the petitioner's agent:
The Division's Question - "Have any archeological reports been prepared on this project, or will you be preparing an archeological report to satisfy another public agency because of the CHANGES"?
The Petitioner's Answer - The petitioner's agent stated that: "Archeological reports were prepared for the original EIR. No additional work is proposed."
Please provide the following information:
(a) The petitioner's agent alleges that "no additional work is proposed". However, the petitioner's agent stated that "Approximately 208 Ac. of brush will be removed as a part of future orchard development. Trees will be planted. Irrigation pipelines and systems will be installed".
Because of the removal of 208 acres of "brush" and the installation of pipelines and the irrigation system, clearly there should be prepared a archeological report. That report should be included in the CEQA document for the Change Petition and the subject project.
6. Under the petitioner's Petition for Extension of Time, we have the following comments and questions:
(a) The petitioner requested from the Division a 10 year extension of time to complete construction work and/or beneficial use of the water. However, under Item No. 5, the petitioner failed to disclose information and data regarding" "How much water has been used?, acre-feet/year? cfs?
(b) We believe the Change Petition should not have been noticed without the petitioner expressly certifying and disclosing the specific amount of water used.
The petition for extension of time is deficient without this information and data on the amount of water used. The Division's public notice of the Change Petition did include some information regarding the amount of water used. That amount was 490 acre-feet. We do not know where the Division obtained that information and data regarding the maximum annual use. Please forward copies of the daily diversion rate and seasonal use of water submitted by the petitioner to the Division, since the permit was issued.
(c) It appears the petitioner has already put the 490 acre-feet of water under Permit 20041 to use. How can the Division accept a petition for extension of time when the petitioner has already put the water to use (490 acre-feet).
(d) Based on what provision of the California Water Code, can the petitioner apply for more water than is authorized under a Change Petition? Please explain.
7. We have reviewed "Memorandum to Files; Application 26813; Compliance Inspection Pursuant to Permit 20041 (Application 26813) - McCoy Creek in Santa Barbara; Charles Rich, Senior Water Resources Control Engineer; Division of Water Rights, State Water Resources Control Board; May 24, 1995".
Location of POD at Page 3
(a) The Compliance Memo under Location of POD at page 3 states as follows:
"Only one offstream storage reservoir has been constructed. The reservoir has a capacity of 65 acre-feet." "Plans to develop the other two reservoirs have been abandoned."
Maximum Diversion Amounts at Pages 3 and 4
(b) The Compliance Memo under Maximum Diversion Amounts at pages 3 and 4 states as follows:
"If the place of use is expanded, the permittee will need to pay careful attention to the amount of water diverted in order to comply with the requirements of this term." (Our Emphasis)
"The permittee will also need to monitor the rate of diversion." (Emphasis Added)
"As can be seen from this table [Potential Direct Diversion Rate (cfs) - based on total surface diversion of 490 acre-feet] - a significant potential exists for unauthorized direct diversion - unless the permittee closely monitors the rate of diversion. A good rule of thumb is that total diversion from points #1 and #2 for any 30-day period should not exceed 45.7 ac-ft plus the amount of water placed into long-term storage. For example, if reservoir storage increased by 15 ac-ft over a 30-day period, total diversion from the streams should be limited to 60.7 ac-ft." (Emphasis Added)
Relief Requested by CSPA and SBUCC: To prevent unauthorized use and theft of the state's water, the permittee should be required by the Division of Water Rights to install and maintain fulltime measuring devices at Points of Diversion #1 and #2 to document and record the daily amount of water diverted from the streams to the offstream reservoir and other locations.
Complete Construction at Page 5
(c) The Compliance Memo under Complete Construction at page 5 states as follows:
"All construction work has been completed. Repair of the pipeline from POD #1 which was damaged during the past winter's record rainfall will be undertaken this year [1995]."
Relief Requested by CSPA and SBUCC: We are requesting from the Division a copy of the CEQA document prepared by the permittee for repairing the damaged pipeline, including the Division's approval of the repair work. In the event, streambed work activities were conducted by the permittee, we are requesting a copy of the Streambed Alteration Agreement between the permittee and the DFG.
Complete Use at Page 5
(d) The Compliance Memo under Complete Use at page 5 states as follows:
"Significant use of the water has already occurred. However, some of this use has occurred on land which is not within the authorized place of use."
Relief Requested by CSPA and SBUCC: We are requesting from the Division the following information: (1) How much land (acres) outside of the authorized place of use was used by the permittee since issuance of Permit 20041; (2) Is the unauthorized land which is outside of the place of use greater than 145 acres? It should be noted that the petitioner certified that only 145 acres of land was being used in the petitioner's petition for extension of time.
Term #16: Bypass Requirements at Page 6
(e) The Compliance Memo under Term #16: Bypass Requirements at page 6 states as follows:
"I am not aware of any evidence of non-compliance with this term. However, because all of the necessary measuring devices are not in place, there isn't any evidence of compliance either." (Our Emphasis)
"Monitoring for compliance is very difficult. A minimum of two measuring devices and data recorders at each POD will be necessary to determine compliance with this term. Installation and maintenance of those devices will be quite difficult and costly." (Emphasis Added)
"A more practical alternative would be to install an open outlet near the bottom of each diversion structure so that a minimum flow will always be bypassed before any diversion can be made. If the outlet is properly screened and kept free of debris by ranch personnel, minimum flows would be guaranteed at all times. Under this scenario, recording devices might not be necessary. There would also be some environmental benefit to this method, as the channel below the upper POD would always have water unless the stream were to go dry." (Emphasis Added)
Under Term #16, the bypass flow requirements are to satisfy downstream water rights. However, we have recommended instreamflow studies are conducted to determine the daily amount of water to be bypassed at all times from POD #1 and #2 to protect the public trust resources affected by the diversions in each stream.
Relief Requested by CSPA and SBUCC: To prevent non-compliance of the daily bypass flow requirement, and to assure to the public that the daily bypass requirements are met at all times, the permittee should be required by the Division of Water Rights to install and maintain fulltime measuring devices below Points of Diversion #1 and #2 to document and record the daily amount of water bypassed to satisfy downstream water rights, and also satisfy and benefit downstream public trust resources in each stream.
Term #17: Measuring Devices at Pages 6 and 7
(f) The Compliance Memo under Measuring Devices at pages 6 and 7 states as follows:
"Bypass measuring devices were not observed during the inspection."
"A measurement plan, which could be approved by the Division Chief, should address how the following quantities would be measured and the information recorded: (1) bypass at POD #1; (2) total diversion from POD #1; (3) bypass at POD #2; (4) total diversion from POD #2; (5) the quantity of water held in the reservoir; and (6) the quantity of water pumped from the 3 Sierra wells and the Jacuzzi well."
Relief Requested by CSPA and SBUCC: As shown above we have requested fulltime measuring devices. As stated by the Division in the Change Petition Notice, there are multi refills of the reservoir. Considering the reservoir capacity is 65 acre-feet Of water, it appears the permittee refills the reservoir 5 plus times. To prevent the unauthorized use and theft of the state's water, the permittee should be required by the Division to install a fulltime measuring device at the reservoir to determine the daily amount of water in storage at the reservoir at all times.
(g) According to the the Change Petition noticed by the Division, the permittee has the right to directly divert 0.77 cfs from January 1 to December 31 annually; and the permittee has the right to divert to storage 324 acre-feet of water to offstream storage from December 31 to May 31. The capacity of the offstream reservoir is 65 acre-feet of water.
Relief Requested by the CSPA and SBUCC: The Division should: (1) restrict diversion to offstream storage between December 1 to May 1; (2) restict the direct diversion rate to 0.77 cfs; and (3) restrict the storage to 65 acre-feet of water.
The permittee uses water from 3 Sierra wells and the Jacuzzi well according to the Division.
Relief Requested by CSPA and SBUCC: Fulltime measuring devices should be required by the Division and installed and maintained by the permittee at the three (3) Sierra wells and the also Jacuzzi well to document and record the amount of water diverted for the proposed project in conjunction with surface flow diversions.
The permittee may be diverting the underflow of the affected streams at the three (3) Sierra wells and the Jacuzzi well. Diverting the underflow requires a water right permit from the SWRCB.
Relief Requested by the CSPA and the SBUCC: We are requesting the Division investigate and determine whether the permittee is diverting the underflow of the affected streams at the three (3) Sierra wells and the Jacuzzi well.
Relief Requested by CSPA and SBUCC: The permittee should be required to submit a Measuring Plan which assures the public of full compliance of the terms and conditions in the water right permit, and also prevents the unauthorized use and theft of the state's water.
(h) Fish may be entrained in the diversion pipes and diverted to the offstream reservoir. The diversion pipe on McCoy Creek is about 18 inches in diameter. We do not know the diameter of the diversion pipe on Glen Annie Creek. Also, the Division's public notice of the Change Petition did not disclose the size of the two pipes.
Relief Requested by CSPA and SBUCC: The permit should be amended to require a mandatory minimum pool at the reservoir to keep fish and other aquatic species in good condition at all times. The SBUCC request the opportunity to inspect the reservoir to determine whether or not the reservoir sustains fish and aquatic species.
Relief Requested by CSPA and SBUCC: Pursuant to Section 781; CCR; Title 23; the permit should be amended to require the permittee to allow public access to the offstream reservoir for the purpose of fishing. The SBUCC request the opportunity to inspect the reservoir to determine whether or not the reservoir sustains fish species.
Term #22: Comply with Santa Barbara Co. Erosion Control Measures at Page 7 and 8
(h) The Compliance Memo under Santa Barbara Co. Erosion Control Measures at pages 7 and 8 states as follows:
"Significant quantities of silt were observed in the creeks. However, in view of the recent heavy storms and landslides in the upper canyons, this is something that could be expected and is beyond the control of the permittee." (Our Emphasis)
Silt can adversely affect aquatic species and their habitat, including fish species and their habitat. Silt deposited below POD #1 and #2 in the streams can be controlled by the permittee by the SWRCB requiring flushing flows.
Relief Requested by CSPA and SBUCC: The permit should be amended to require a natural flushing flow requirement to flush silt below POD #1 and #2 to the Pacific Ocean. We recommend to the Division that the permittee hire a certfied engineer to determine the number of days of natural flows to flush sediment below the points of diversion to the Pacific Ocean.
8. The petitioner's stream diversion structure at POD #2 on Glen Annie Creek is a barrier to anadromous fish such as steelhead. The structure is between 4 to five feet in height. Steelhead may frequent Glen Annie Creek and have the potential to migrate upstream to the diversion on McCoy Creek, provided a fish ladder is installed and maintained by the permittee at POD #2 on Glen Annie Creek. It is our understanding that there is a natural barrier (waterfall) at POD #1 on McCoy Creek. Consequently, it does not appear steelhead could migrate above the natural waterfall unless a fish ladder was installed and maintained.
Relief Requested by CSPA and SBUCC: The permit should be amended to require the permittee to install a fish ladder at the diversion structure at POD #2 in the event steelhead are observed in Glen Annie Creek and Tecolotito Creek. The permit should include a steelhead monitoring program during the term of the extension of time (10 years). The monitoring program should be conducted by a fisheries biologist hired by the permittee and annual surveys should be conducted to determine whether steelhead have migrated into Tecolotito Creek and Glen Annie Creek.
Water Availabilty Analysis
9. The CSPA and SBUCC request a copy of the water availability analysis prepared by the Division for Permit 20041 and the Change Petition.
That concludes the additional comments and relief requested by the CSPA and the SBUCC regarding the joint Public Trust Complaint.
Respectfully Submitted
________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
and Santa Barbara Urban Creeks Council
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-836-1115 or 916-1007 or 916-283-3767; Fax: 916-283-5017 or 916-283-4999
References
1. August 3, 1994; COMPLIANT Letter from Terence S. Hunt, Santa Barbara Urban Creeks Council to Edward Anton, Chief, Division of Water Rights;
2. September 20, 1994; Letter from Charles Rich, Senior Water Resources Control Engineer, Division of Water Rights, to Terence S. Hurt, Santa Barbara Urban Creeks Council;
3. September 20, 1994; KISS UP Letter from Charles Rich, Senior Water Resources Control Engineer, Division of Water Rights, to Danny G. Wynn, P.E., Chief Engineer, Penfield & Smith;
4. April 30, 1995; Letter from Terence Hurt, Santa Barbara Urban Creeks Council, to Robert Mendenhall, University Exchange Corporation, with copy to Charles Rich, Division of Water Rights;
5. May 24, 1995; Compliance Inspection Pursuant to Permit 20041 (Application 26813) - McCoy Creek in Santa Barbara County; Files (Application 26813); Charles Rich, Senior Water Resources Control Engineer, Hearing Unit, Division of Water Rights;
6. May 30, 1995; KISS UP Letter from Charles Rich, Senior Water Resources Control Engineer, Division of Water Rights, to Robert W. Mendenhall, Vice President, University Exchange Corporation; with copy to Terence S. Hurt, Santa Barbara Urban Creeks Council;
7. September 29, 1995; Letter from Danny G. Wynn, Chief Engineer, Penfield & Smith (representing University Exchange Corporation), to State Water Resources Control Board (attn: Charles Rich, Division of Water Rights);
8. September 29, 1995; Petition for Change and Petition for Extension of Time, by University Exchange Corporation, Certfied by Robert Mendenhall, Vice President, University Exchange Corporation;
9. September 29, 1995; Petition For Change; Environmental Information; Certified by Danny G. Wynn, P.E.
10. September 29, 1995; Petition for Change and Petition for Extension of Time, by University Exchange Corporation, Certfied by Robert Mendenhall, Vice President, University Exchange Corporation;
11. August 15, 1995; RECOMMENDATION TO PERMITTEE Letter from Charles Rich, Senior Water Resources Control Engineer, Division of Water Rights, to Robert W. Mendenhall, Vice President, University Exchange Corporation; with copy to Terence S. Hurt, Santa Barbara Urban Creeks Council;
12. August 15, 1996; Public Notice; Division of Water Rights and State Water Resources Control Board; Petition for Changes and also Petition for Extension of Time; Application 26813; Water Right Permit 20041; Issued March 27, 1987; University Exchange Corporation;
13. September 8, 1996; Letter from Brian G. Trautwein, Executive Director, Santa Barbara Urban Creeks Council, to Robert W. Mendenhall, Vice President, University Exchange Corporation;
14. November 4, 1996; Joint Public Trust Complaint; California Sportfishing Protection Alliance and Santa Barabara Urban Creeks Council; Application 26813; Water Right Permit 20041; McCoy Creek and Glen Annie Creek.
cc: Brian Trautwein, Executive Director
Santa Barbara Urban Creeks Council, Complainant
5771 Leeds Lane
Goleta, CA 93117
Jim Crenshaw, President
California Sportfishing Protection Alliance, Complainant
1248 East Oak Avenue
Woodland, CA 95695
Jim Canaday, Environmental Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Ross Swenerton, Environmental Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Wayne White, State Supervisor
c/o Joel Medlin, Field Supervisor
U.S. Fish and Wildlife Service
3310 El Camino Avenue
Sacramento, CA 95821-6340
James Lecky, Chief
Protected Species - Management Division
U.S. National Marine Fisheries Service
501 West Ocean Blvd, Suite 4200
Long Beach, CA 90802-4213
Jerry Mensch, Environmental Services
Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
Robert Mendenhall, Vice President
University Exchange Corporation
P.O. Box 2507
Goleta, CA 93118
Interested Parties