Mr. Edward Anton, Chief November 4, 1991
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Mr. Mike Falkenstein, Chief
Environmental Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Navarro River; WR Application Nos. 29635, 29679, 29680, 29868, 29869, 29870, 29910 and 29911; Comments by California Sportfishing Protection Alliance
Dear Gentlemen:
This is in response to your recent letter of October 29, 1991 regarding the above mentioned water right applications affecting the public trust anadromous fisheries, aquatic, riparian and wildlife resources of the Navarro River. Please see attachment.
Thank you for advising me that the State Water Board will require an environmental impact report on the cumulative impacts from one (1) pending water right application on the Navarro River. It was stated in Mr. Anton's letter of October 29, 1991, that 13 applications are pending that range in size from 1,500 acre-feet to 6 acre-feet of water. It was further stated that you have notified the largest and senior of the pending applications that one (1) EIR will be required that examines the cumulative impacts of their diversion in relation to other pending applications.
We disagree with your staff's conclusion that only one (1) EIR should be prepared to examine the cumulative impacts of the largest and senior application and the cumulative impacts from that project in relationship to other pending applications.
Each application is a separate "project". Each separate "project" has the potential to cause adverse direct and indirect impacts to the environment, including cumulative impacts. The Board's staff has concluded that all of the projects collectively have the potential to cause adverse cumulative impacts to the Navarro River. Consequently in accordance with the CEQA Guidelines, EIRs for each project should be prepared by the applicants. (see Guidelines, section 15065, subd. (c); see also section 21083. )
As set forth in section IV(A), supra, the CEQA Guidelines define "project" to mean " the whole of an action" that may result in either a direct and indirect physical change in the environment. (Guidelines, section 15378. subd. (a).) Each "project" must be fully analyzed in a single environmental review document. Thus, in performing its analysis, an agency generally may not split a project into two or more segments.
The lead agency typically determines whether to prepare an EIR after completing the initial study; however, the initial study can be dispensed with where it is clear from the agency's "preliminary review" that a project is one requiring an EIR (Guidelines, sections 15060, subd. (c), 15063, subd. (b), 15081.)
As stated beforehand, the largest and senior applicant will be required to prepare an EIR that examines the cumulative impacts of their water diversion in relation to the other pending application. However, existing water diversions in the Navarro River in conjunction with all of the pending 13 water right applications must also be evaluated under the CEQA requirements.
A draft EIR must discuss "cumulative impacts" when they are significant. (CEQA Guidelines, section 15130, subd. (a).) These are defined as "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts." (CEQA Guidelines, section 15355; see also section 21083, subd. (b).) "Individual effects may be changes resulting from a single project or a number of separate projects." (CEQA Guidelines, section 15355, subd. (a).) "The cumulative impacts from several projects is the change in the environment which results from the incremental impact of the project when added to the closely related past, present, and reasonably foreseeable probable future projects. Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." (CEQA Guidelines, section 153, subd. (b).)
A legally adequate "cumulative impact analysis" thus is an analysis of a particular project viewed over time and in foreseeable probable future projects whose impacts might compound or interrelate with those of the project at hand. Such an analysis "assesses cumulative damage as a whole greater that the sum of its parts". [ Environmental Protection Information center v. Johnson (1985) 170 Cal. App. 3d 604, 625 (216 Cal. Rptr. 502, 515). ] Such an analysis is necessary because " [t]he full environmental impact of a proposed...action cannot be gauged in a vacuum. " ( Whitman v. Board of Supervisors (2d Dist. 1979) 88 Cal. App. 3d 397, 408 [151 443 F. Supp. 866, 872], quoting Akers v. Resor (W.D. Tenn. 1978) 443 F. Supp. 1355, 1360. ] " [A]n agency may not....[treat] a project as an isolated ' single shot' venture in the face of persuasive evidence that it is about one of several substantially similar operations....To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster. " (Whitman, supra, 88 Cal. App. ed at 408 [151 Cal. Rptr. 866, 872], quoting Natural Resources Defense Council v. Callaway (2d Cir. 1975) 524 F. 2d. 79, 88 ].
The Board could prepare a "Master Environmental Assessment" for the Navarro River Basin. When a agency anticipates that certain general environmental information may repeatedly be useful for preparing future CEQA documents for proposed projects within the agency's jurisdiction, the agency may prepare a "master environmental assessment" ( "MEA" ) cataloging such information for the relevant area. (Guidelines, section 15169) MEAs typically include physical and biological data that will repeatedly be relevant in analyzing the potential impacts of future proposed projects. Typical uses of MEAs include the following: providing information for initial studies, negative declarations, and EIRs; and assisting analyses of proposed projects' long term and cumulative impacts (Guidelines, section 15169, subd. (d).)
In Mr. Anton's letter of October 29, 1991, he stated that we had requested to be a protestant on the above mentioned applications and to any other water right applications on the Navarro River. This is true as stated to him in our letter of September 21, 1991. He further stated that the deadline date for filing protests on the applications in our letter is long past, and that the Division will put the CSPA on the mailing list as an interested party. In other words we were denied being a protestant. He further stated that he believed I am familiar with the procedures for filing protests.
Yes I am familiar with the procedures concerning filing protests. However, the Division has allowed for extensions of time on filing protests for good cause, and in certain cases has re-opened the protest period. ( see section 747; Title 23; California Code of Regulations )
We believe there is "good cause" to allow interested parties to file protests on said applications because of the potential adverse cumulative, direct and indirect impacts to the public trust assets of the Navarro River from the pending applications and existing water diversions. The 13 applications were not filed on the same day with the Board. As the list of applications grew, it became apparent that cumulative impacts would occur. Given that fact the Board's notice on the growing list of applications should have pointed out there were other applications on the same watershed.
Also for your information, the CSPA filed a protest against Application Nos. 29679 and 29680 [Scharffenberger] on October 21, 1991. ( see CSPA Protest; Application Nos. 29679 and 29680; October 21, 1991 ) Consequently the allegation that we did not file a timely protest for Application Nos. 29679 and 29680 is not true.
Also for your information, the CSPA directed a letter to Bruce Fodge of your staff, dated May 21, 1991 concerning Application Nos. 29868, 29869 and 29870 [ Mendocino Wine ]. ( see CSPA letter to Bruce Fodge, Division of Water Rights; May 21, 1991; Application Nos. 29868, 29869 and 29870 ) We requested the Board to take appropriate legal actions against the applicant for violations of the California Water Code. We also requested the Board to require the applicant to prepare an EIR for said applications.
Given the fact that the CSPA is not "coming out of nowhere", and considering our involvement in being a "party of record" for five (5) applications and showing "good cause" for being a protestant for all applications, the CSPA should be allowed to be a protestant on all applications.
We also need to know how you plan to implement the CEQA Guidelines in determining direct and indirect impacts resulting from each "project" and the cumulative impact from all pending "projects" [applications] and existing diversions [ permitted rights, riparian rights and pre-1914 rights ].
A written response would be appreciated. Thank you.
Respectfully Submitted
________________________________________
Robert J. Baiocchi, Executive Director, CSPA
P.O. Box 357
Quincy, CA 95971
cc: Mr. Bruce Fodge, Environmental Unit
Division of Water Rights
Mr. Ross Swenerton, Environmental Unit
Division of Water Rights
Mr. Dan Frink, Staff Attorney
State Water Resources Control Board
Mr. Jim Crenshaw, President, CSPA
Mr. Bill Jennings, Chairman, CSPA
Mr. Mike Jackson, Counsel, CSPA
Interested Parties
attachments