CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
P.O. BOX 357
QUINCY, CALIFORNIA 95971
Mr. Ed Dito, Chief November 4, 1996
Application and Petition Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Change Petition; University Exchange Corporation; Application 26813; Water Right Permit 20041; McCoy Creek tributary to Glen Annie Creek and Glenn Annie Creek tributary to Tecolotito Creek thence Goleta Slough thence Pacific Ocean; Santa Barbara County; Public Trust Complaint by California Sportfishing Protection Alliance and Santa Barbara Urban Creeks Council.
Dear Mr. Dito:
Treat this letter as a formal public trust complaint as follows:
1. The names of the joint complainants are the California Sportfishing Protection Alliance (hereinafter known as "CSPA:) and Santa Barbara Urban Creeks Council (hereinafter known as "SBUCC"). The mailing address of the CSPA is P.O. Box 357, Quincy, California 95971. The agent for the CSPA is Bob Baiocchi, Consultant, CSPA, at the same address. The telephone and fax numbers of the agent is shown below. The name of the agent for the SBUCC is Brian Trautwein. The mailing address of the agent is 5771 Leeds Lane, Goleta, CA 93117. The telephone number of the agent for SBUCC is 805-964-3105.
2. The CSPA has standing with the SWRCB regarding water right matters involving environmental issues throughout the state. The CSPA has filed numerous formal complaint and numerous formal protests with the SWRCB.
3. The SBUCC also has standing with the SWRCB on water right matters and environmental issues in Santa Barbara County.
4. The nature, background, and issues of the co-complaint, including relief requested follows.
SWRCB Public Notice of August 15, 1996 - Petitions
5. On August 15, 1996, the Division of Water Rights submitted its monthly public notice regarding Notice of Petitions Requesting Changes or Extension of Time in their Water Right Permits or Licenses.
6. The deadline date for filing formal protests on any petition change noticed on August 15, 1996 was September 15, 1996 (30 days). The CSPA is filing this complaint because the deadline date has passed.
Change Petition - Application 26813 - Water Right Permit 20041 - Background Information
7. On August 15, 1996, a change petition was noticed by the Division regarding Application 26813 and Water Right Permit 20041. The petitioner is the University Exchange Corporation. The agent for the petitioner is: Robert W. Mendenhall, Vice President, P.O. Box 2507, Goleta, CA 93118.
8. Under Water Right Permit 20041 the petitioner diverts and stores water from McCoy Creek tributary to Glen Annie Creek and Glenn Annie Creek tributary to Tecolotito Creek thence Goleta Slough thence Pacific Ocean. The Permit was issued by the SWRCB on March 27, 1987.
9. Under Permit 20041, the direct diversion rate is 0.77 cfs. The season of diversion is January 1 to December 31.
10. Under Permit 20041, the storage season is from December 31 to May 1 provided the combined rates of direct diversion and diversion to offstream storage does not exceed: (a) 1,200 gallons per minute at Weir No. 1; (b) 1,500 gallons per minute at Weir No. 2; and 500 gallons per minute at Weir No.3.
11. Under Permit 20041, the storage amount is 324 acre-feet in offstream storage (140 acre-feet in Reservoir No. 1; 92 acre-feet in Reservoir No. 2; and 92 acre-feet in Reservoir No. 3).
12. Under Permit 20041, the purposes of use are: municipal, storage, and irrigation.
13. Under Permit 20081, the places of use under municipal is 11.2 acres; and for irrigation and stockwatering 145 acres. (Our Emphasis)
14. Under Permit 20081, the maximum annual use is 490 acre-feet of water by combined direct diversion and diversion to offstream storage. (Our Emphasis)
15. This project has changed substantially since Permit 20041 was issued by the SWRCB in March of 1987. (Our Emphasis)
16. Municipal use of water is no longer a portion of the project. Petitioner no longer has any plans to construct the lower POD on Glenn Annie Creek or the remaining two (No. 2 and No. 3) reservoirs. Currently, 400.61 acres of avocadoes and lemon trees are being irrigated. (Our Emphasis)
17. Term No. 16 of Permit 20041 requires that bypass flows are made to protect downstream landowners claim of prior vested rights.
18. According to the SWRCB public notice of August 15, 1996, the Petition for Change request the following:
(a) Deletion of municipal use of water as an authorized use of water;
(b) Deletion of the lower point of diversion (Weir 3) on Glen Annie Creek and Reservoirs Nos. 2 and 3 from Permit 20041;
(c) An increase in the authorized places of use under Permit 20041 by 443.79 acres for a total irrigated acreage of 588.79 acres. (formerly 145 acres of irrigated land) (Our Emphasis)
(d) The total water demand for the project, including the proposed petition changes, will be appropriately 883 acre-feet per annum. (formerly 490 acre-feet of water) (Our Emphasis)
(e) The Petition Change request changes in bypass flow requirements under Term 16.
19. The Petition Change also request an extension of time, until the year 2005, to allow the petitioner to demonstrate full beneficial use of the water.
20. We submit and reference Public Notice of August 15, 1996; Notice of Petitions; at pages 3, 4 and 5, under Application 26813 and Permit 20041; University Exchange Corporation. (See Attachment)
The CSPA and SBUCC Public Trust Co-Complaint
21. The Change Petition, if approved by the SWRCB or its staff, would authorize 393 acre-feet of "new" additional water to be appropriated by the permittee.
The Change Petition, if approved by the SWRCB or its staff, would authorize 443.79 acres of "new" land to be irrigated by the permittee.
Because of 393 acre-feet of "new" additional water to be appropriated by the permittee, and also because of 443.9 acres of "new" land to be irrigated by the permittee, the Division should have required the permittee to file a "new" water right application.
After notice of an application to appropriate water has been given, changes in point of diversion, place of use, or purpose of use as stated in the application, permit, or license may be allowed only upon petition and provided that the petitioner establishes that the proposed change will neither in effect initiate a new right nor injure any other appropriate or lawful user of water. (Our Emphasis) We reference Section 791 (Petition); CCR; Title 23.
Relief Requested: We are requesting the Division to required the permittee to file a "new" water right application with the SWRCB for the appropriations of 393 acre-feet of "new" water.
22. Change petitions are subject to the California Environmental Quality Act and its Guidelines. The proposed "new" project is not exempt from CEQA and its Guidelines. We do not know whether the Division's Petition Unit engaged the Division's Environmental Unit concerning evaluating the potential direct, indirect, and cumulative impacts to the human environment and the public trust resources of the affected streams as a result of the proposed appropriation of 393 acre-feet of "new" water; and an increase of 443.79 acres of "new" land" under the subject change petition.
In the words of the Division, "This project has changed substantially since Permit 20041 was issued by the SWRCB in March of 1987." (Our Emphasis)
Relief Requested: We are requesting a CEQA document is prepared for the proposed "new" project as shown in the change petition noticed by the Division. We request the opportunity to recommend to the Division what environmental issues should be disclosed, evaluated, and mitigated in the CEQA document, including being allowed to comment on the CEQA document.
23. Based on information in the public notice for the subject change petition, it strongly appears the permittee was diverting and storing the state's water unlawfully. (Unauthorized use of the state's water) because the permittee is currently irrigating 400.61 acres of avocadoes and lemon trees. (Our Emphasis)
If that is the case, the Division's Petition Unit should have conducted an investigation and ordered the permittee to cease diverting the state's water and order fines for the unauthorized use and theft of the state's water.
Relief Requested: In the event the permittee has been diverting and storing the state's water unlawfully, we are requesting the Division to require the permittee to cease diverting the state's water, and enforce Section 1052 of the California Water Code. i.e. a fine of $500 per day.
Relief Requested: We also would appreciate information regarding how a staff member of the Division has the authority to allow the unauthorized use of the state's water. Please cite state statute and regulation which allows a staff member of the SWRCB to avoid preventing the unlawful diversion of the state's water.
24. The bypass flow requirements in the change petition are expressly to protect downstream landowners with vested rights. Consequently, there are no bypass flow requirements in Permit 20041 or in the change petition which requires bypass flow requirements to protect the public trust resources of McCoy Creek, Glenn Annie Creek and Tecolotito Creek.
In the Change Petition, there is a proposed amendment to Term 16. That proposed amendment requires a positive flow device at Weir No. 1 which limits the bypass flows. Limiting the bypass flow without knowing the necessary amount of water needed to protect the public trust resources is unreasonable and not in compliance with Section 782; CCR; Title 23; and Fish and Game Code 5937.
Relief Requested: We are requesting the Division to require daily bypass flow requirements to protect the public trust resources in the stream environments between the permittee's diversions to the Pacific Ocean. In determining the necessary environmental bypass flow requirements, the permittee should be required to conduct instreamflow studies in consultation with the Department of Fish and Game, and other state and federal agencies.
Relief Requested: In the interim period, we are requesting the Division to require the permittee to bypass .385 cfs of water from each weir to protect the downstream public trust resources. That bypass flow requirement is consistent with the Public Trust Doctrine which requires that the beneficial uses of the state's waters are balanced.
25. In the Change Petition, there is another proposed amendment to Term 16. At Weir No. 1, because of the positive flow device of 25 gallons per minute or the natural flow, no additional measuring devices or records need to be kept of the bypass at this location. At Weir No. 2, 60 gallons per minute whenever diversion is occurring. (Our Emphasis)
The information in the Change Petition for Weir No. 2 did not disclose whether there is a measuring device below the weir and whether records are being kept to record the amount of water being bypassed below the weir.
Bypass valves can plug up for various reasons. Measuring devices are important in that the data shows how much water is being bypassed at all times. Records are important so that the Division can monitor the records and determine whether the bypass flow requirements are being met at all times, and how much water is bypassed below the weirs.
Relief Requested: We are requesting the Division to require that measuring devices are installed and maintained below both weirs. We are also requesting that records are kept for both measuring devices.
26. The information in the Change Petition did not disclose whether the diversions at both weirs have measuring devices to record the amount of water diverted from the streams for direct diversion and also to storage. Measuring devices are very important in showing the amount of water diverted, stored, and beneficially used; and measuring devices also provide the Division with data which shows whether the unauthorized use of the state's water is being made by permittees.
Relief Requested: In the event the diversions from both weirs do not have measuring devices, we are requesting the Division to require the installation and maintenance of recording devices at both diversions. We are also requesting that records are kept for both measuring devices.
27. The information in the Change Petition discloses that multi refills can be made to the offstream reservoir by the permittee; and that the total water demand for the project, including the proposed changes, will be approximately 883 acre-feet of water per annum. However, the information in the Change Petition did not disclose whether the offstream reservoir has a measuring devices to determine the total amount of water stored per annum and the season of storage.
Relief Requested: We are requesting the Division to require the permittee to install and maintain a measuring device at the offstream reservoir to record the amount of water used for storage. We are also requesting the Division to require the permittee to maintain records of storage and season of storage.
28. Steelhead have been observed in Tecolotito Creek in the 1970's. (communication with Brian Trautwein, SBUCC) This watershed may still sustain steelhead.
The Change Petition did not disclose whether native California fishes and other aquatic resources exist in the streams, above and below the points of diversion.
The Change Petition did not disclose whether the diversions at both weirs are screened to prevent fish and aquatic species from being entrained and harmed.
Relief Requested: We are requesting the Division to investigate and determine whether fish screens should be installed and maintained at the diversions.
The Change Petition did not disclose whether the offstream reservoir has a mandatory minimum pool to protect fish, aquatic species, and other public trust resources such as wildlife, native vegetation, etc.
The Change Petition did not disclose whether the permittee has planted fish in the offstream reservoir for private recreational purposes.
Relief Requested: We are requesting the Division to require a minimum pool for the offstream reservoir in the event fish and aquatic species exist in the reservoir.
Relief Requested: In the event fish species exist in the offstream reservoir, pursuant to Section 781; CCR; Title 23; we are requesting the Division to require the permittee to accord to the public for the purposes of fishing, access to the offstream reservoir.
The Change Petition did not disclose whether red-legged frogs and their habitat exist in the watersheds affected by Permit 20041 and the Change Petition.
Relief Requested: The Division should consult with the U.S. Fish and Wildlife Service to determine whether red-legged frogs exist in the watershed, and also to determine the measures to protect these species. Red-legged frog species are protected under the federal ESA.
Relief Requested: Potential adverse direct, indirect, and cumulative impacts to red-legged frogs and their habitat should be disclosed, evaluated, and mitigated in the recommended CEQA document.
Relief Requested: We are requesting the Division to investigate all of the above mentioned environmental issues; and disclose, evaluate, and mitigate the potential direct, indirect, and cumulative impacts to the public trust resources in a CEQA document.
Relief Requested: In the event steelhead do occur in the Tecolotito Creek Watershed, the Division should consult with the U.S. National Marine Fisheries Service to determine the amount of water that would be needed to protect these species (all life stages) in the downstream areas because steelhead are being proposed for listing under the protection of the federal ESA.
29. The Change Petition did not disclose whether the Division conducted a water availability analysis to determine the amount of water available and the season of availability for appropriation in McCoy Creek and Glen Annie Creek.
Relief Requested: In the event the Division did not prepare this water analysis, we need to understanding and know how the Division's staff determined that water was available, and that the the permittee could divert and use the 393 acre-feet of "new" water.
Relief Requested: Please forward a copy of the water availability analysis. In the event a water availability analysis was not prepared, we are requesting the Division to prepare this document in conjunction with the "new" water right application.
Basis of Public Trust Complaint
30. This public trust complaint is based on: (a) Public Trust Doctrine; (b) California Water Code; (c) California Environmental Quality Act and its Guidelines; (d) California Fish and Game Code 5937, and other applicable sections; (e) Section 782; CCR; Title 23, and other applicable sections; (f) Federal Endangered Species Act; and (g) other applicable federal and state statutes and regulations.
Service to Petitioner
31. The petitioner is being forward a copy of this complaint by first class mail.
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 916-283-3767; Fax: 916-283-5017
Certificate of Service
Ed Dito, Chief
Application and Petition Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
(Original)
Steve Herrera
Environmental Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Attn: CEQA - Environmental Issues
Jim Canaday
Environmental Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Attn: CEQA - Environmental Issues
James Lecky, Chief
Protected Species
Management Division
U.S. National Marine Fisheries Service
501 West Ocean Blvd, Suite 4200
Long Beach, CA 90802- 4213
Attn: Steelhead Listing - ESA
Jerry Mensch, Water Rights
Environmental Services
Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95812-2000
Attn: Water Rights - Fish and Wildlife Resources
Maurice Cardenas
Department of Fish and Game, Region 5
530 East Montecito Street, Room 104
Santa Barbara, CA 93103
Attn: Fish and Wildlife Resources
Brian Trautwein, Executive Director
Santa Barbara Urban Creeks Council, Co-Complainant
5771 Leeds Lane
Goleta, CA 93117
Wayne White, State Supervisor
c/o Joel Medlin, Field Supervisor
U.S. Fish and Wildlife Service
3310 El Camino Avenue, Suite 130
Sacramento, CA 95821-6340
Attn: Steelhead - ESA
Mike Sherwood, Esquire
Sierra Club Legal Defense Fund
180 Montgomery Street, Suite 1400
San Francisco, CA 94104
Attn: Endangered Species Act - Steelhead
Steve Volker, Esquire
Sierra Club Legal Defense Fund
180 Montgomery Street, Suite 1400
San Francisco, CA 94104
Attn: SWRCB Water Rights
Richard Roos-Collins, Esquire
Natural Heritage Institute
114 Sansome Street, Suite 1200
San Francisco, CA 94104
Attn: SWRCB Water Rights
Jim Crenshaw, President, CSPA
1248 East Oak Avenue, Suite D
Woodland, CA 95695
Bill Jennings, Chairman
California Sportfishing Protection Alliance
3536 Rainier Avenue
Stockton, CA 95204
Ray Cole, CSPA Board
2874 Calariva Drive
Stockton, CA 95204
Mike Jackson, Esquire
P.O. Drawer 207
Quincy, CA 95971
Jim Edmondson, Executive Director
California Trout
9770 Sombra Terrace
Shadow Hills, CA 91040
Interested Parties