Navarro SWRCB PubTrustProtest July95

State of California

Before the State Water Resources Control Board

Richard A. Savoy, Applicant

Application Nos. 29910 and 29911

Applications to Appropriate Water

Navarro River Underflow and Unnamed Tributaries to Navarro River - Navarro River Watershed thence

Pacific Ocean

Public Trust Protest

by the California Sportfishing Protection Alliance

We have reviewed the State Water Resources Control Board public notice of June 23, 1995 regarding Applications 29910 and 29911. We reference the public notice of June 23, 1995.

DESCRIPTION OF PROJECT

Application 29910

Under Application 29910, the applicant seeks a water right to: (1) collect 55.6 acre-feet per annum of water to storage, for irrigation, frost protection, and domestic purposes, in an existing 27.8 acre foot pit type offstream reservoir (constructed in 1991) having a maximum depth of 20 feet and a surface area of 2.07 acres, and (2) to directly divert 8,765 gallons per day for domestic use and 0.53 cfs for irrigation of 39.68 acres of vineyards. Water will be diverted to the reservoir by pumping from the underflow of the Navarro River via 1,180 feet of 5-inch buried PVC pipe at a maximum rate of 3 cfs, and by gravity flow from two unnamed tributaries via 706 feet and 505 feet of 12-inch-diameter buried ADS pipe at maximum rate of 1 cfs and 0.5 cfs.

Refill of 27.8 af per annum is proposed for the reservoir. The total amount of water diverted under this application will not exceed 102.4 af per annum. The requested season for collection of water to storage is from October 1 to September 30, for direct diversion for domestic use from January 1 to December 1, and for direct diversion for irrigation from June 1 to October 31.

Under this application the water to be appropriated is from: (1) Navarro River underflow; (2) and two unnamed tributaries to the Navarro River.

Application 29911

Under Application 29911, the applicant proposes to directly divert 3.0 cfs, not to exceed 45.2 af per year, from the same sources, points of diversion, and facilities as for Application 29910. The requested diversion extends from March 1 to June 1.

Under this application the water to be appropriated is from: (1) Navarro River underflow; (2) and two unnamed tributaries to the Navarro River.

The applicant claims a riparian right to some or all of the direct diversions from the underflow of the Navarro River under these applications. However, the public notice did not disclose information on the claimed riparian rights.

CSPA PUBLIC TRUST PROTEST

This protest is based on environmental grounds. The proposed project under Applications 29910 and 29911 have the potential to cause adverse cumulative impacts to public trust coho salmon and steelhead trout, and the ecosystem of the Navarro River watershed during the summer and fall periods, and also in dry and critically dry water years.

STATEMENT OF FACTS AND REASONS FOR PUBLIC TRUST PROTEST

1. The Navarro River is the largest stream system on the Mendocino County Coast totaling approximately 303 square miles. The majority of the watershed is coniferous forest, oak woodlands and fairly extensive grassland areas. There is a long tidal lagoon at the mouth of the river and extensive riparian vegetation from the lagoon to the headwaters. Extensive spawning area for coho salmon and steelhead trout exist in the Navarro River and its many tributaries. Rancheria and Indian Creek support a summer trout fishery. Several state parks and reserves provide public swimming, fishing and hiking opportunities. In addition, in normal rainfall years the river receives over 5,000 man days use per year for river running, recreational river rafting, and canoeing. The river in the past has been periodically quite turbid with silt from logging operations in the upper tributaries. Low flows and high water temperatures are the primary stream characteristics in the summer time.

We reference Draft Negative Declaration; Application to Appropriate Water; Application 29711; Edward E. Bennett, Applicant; Navarro River Watershed; State Water Resources Control Board; 1995; at page 1.

2. High stream flows during the months of January, February, and March characterize the stream during the winter. The stream's median discharge is 370,000 afa, based on 27 years of data. The discharge, however, varies greatly from year to year with a range of 948,454 afa in 1982-83 to a low of 18,066 af in 1976-77.

3. The Department of Fish and Game (DFG) has indicated that the Navarro River is an important river from the standpoint of fishery resources. DFG has submitted protests on all pending water right applications on the Navarro River and its tributaries. DFG has also submitted a complaint requesting that the SWRCB take enforcement action to insure that adequate flow is maintained for Coho salmon, steelhead and the Navarro River.

4. Coho salmon and steelhead are the property of the people of the state of California. They are public trust resources and assets. Petition have been filed with the USNMFS to list both species under the protection of the federal ESA.

5. Currently, there are 52 existing water right permits and licenses and 10 pending applications within the Navarro River Watershed. Most of the existing permits and licenses are for direct diversion during the summer period of April through November. The authorized diversions rates range from a minimum of 0.001 cfs to a maximum of 9.0 cfs for irrigation, frost protection, heat protection, and domestic use.

6. The priorities of 10 pending applications date from October 1989 to March 1991. Applications 29910 and 29911 were filed on March 4, 1991. Most of the applications seek appropriative rights for winter time storage during the diversion season of November to May. However, applications also seek direct diversion rights for frost protection during the low flow period between March and June of each year.

7. There are no major storage reservoirs on the river; consequently, the flow is characterized by high "spikes" in the winter and spring with relatively low flow during the summer and fall. The flow usually diminishes to a rate of approximately 10 to 50 cfs between May and December of each year. During summer months, existing appropriative water rights for direct diversion total about 30 cfs. [This does not include riparian diversions or potential illegal diversions]

We reference Proposed Plan For Addressing Issues Raised By Complaints Relating to Protection of Fishery Resources Of The Navarro River During The Summer; Item 10; Workshop of July 5, 1995; Division of Water Rights; June 26, 1995; Division of Water Rights Staff Report; Proposed Action On The Navarro River; Attachment "5".

8. In 1993 and 1994, several complaints were submitted to the Division of Water Rights concerning the Navarro River. The complaints contend that diversions during the late summer reduce the flow in the river which, in turn, affects the coho salmon and steelhead. The complaints request that the Division take actions to protect the fishery resources of the Navarro River.

The complaints contend that there are illegal diverters, however, the complaints have not identified any specific party. Extensive staff effort would be required to locate all existing existing water users and determine the extent of those rights and whether water is being used in a reasonable manner. The Regional Water Quality Control Board can issue waste discharge requirements to regulate practices which may affect erosion, sedimentation and water temperatures.

The staff of the Division of Water Rights recommended to the State Water Board that further action on the complaints be deferred until completion of the Navarro Restoration Plan.

The staff of the Division of Water Rights recommended to the State Water Board that a hearing be held for the purpose of declaring the Navarro River fully appropriated during the summer and fall months. Division staff will continue to process pending applications for wintertime diversion to storage.

The staff of the Division of Water Rights also recommended that the SWRCB request that DFG develop specific recommendations for the protection of the coho and steelhead in the Navarro River watershed.

9. Under Application 29910, the applicant proposes to directly divert water from January 1 to December 31 [all year] for domestic uses, June 1 to October 31 [summer and fall] for irrigation uses, and storage from October 1 to September 30 [fall, winter, spring and summer] for irrigation, frost protection, and domestic uses during all water year types which includes dry and critically dry years.

Under Application 29911, the applicant proposes to divert 3 cfs from March 1 to June 1 [winter and spring] for frost protection during all water year types which includes dry and critically dry years.

As stated beforehand, the staff of the Division of Water Rights recommended to the State Water Board that a hearing be held for the purpose of declaring the Navarro River fully appropriated during the summer and fall months. Division staff will continue to process pending applications for wintertime diversion to storage.

The project proposes to divert water during the critical periods of summer and fall, and also during dry and critically dry water years. The storage and diversion of water during the critical periods of summer and fall, and also during dry and critically dry water years has the potential to cause adverse cumulative impacts to coho salmon and steelhead in the Navarro River.

Because the applicant proposes to divert water during the critical periods of summer and fall, and also during dry and critically dry water years, which has the potential to adversely impact coho salmon and steelhead populations and habitat, the State Water Board, as lead agency under CEQA, should prepare an Environmental Impact Report for the subject project. However, due to the Division of Water Rights current budget deficits, it would be reasonable and in the public interest for the applicant to fund the EIR and the associated environmental studies. The EIR should contain a cumulative environmental impact analysis regarding the proposed project, existing projects and future projects in the Navarro River Watershed, and the related potential adverse cumulative impacts to coho salmon and steelhead (all life stages).

10. The life cycle of coho salmon and steelhead, and their environmental requirements was recently spelled out clearly by the staff of the Division of Water Rights.

We reference Initial Study; Application to Appropriate Water; Application 29711; Edward Bennett, Applicant; SWRCB; Division of Water Rights; 1995; at pages 12 to 17; and Exhibit D.

11. The applicant claims a riparian right to some or all of the direct diversions from the underflow of the Navarro River under these applications. However, the public notice did not disclose information on the claimed riparian rights.

The applicant proposes to divert and store water during the critical periods of summer and fall, and also during dry and critically dry water years. The diversion and storage of water during these periods may have adverse impacts to coho salmon and steelhead and their habitat in the Navarro River.

The diversion and storage of water during these critical periods may violate Article X, Section 2 of the California Constitution because the storage and diversion of water during these critical periods may be the unreasonable use and unreasonable method of diversion of the state's water under riparian rights due to potential adverse impacts to coho salmon and steelhead populations and habitat (all life stages). The proposed project under appropriative rights or riparian rights may also violate the common law public trust doctrine because the beneficial uses of water during the summer and fall were not balanced to protect public trust coho salmon and steelhead.

12. Daniel Myers stated the following:

"I am writing to encourage you to establish minimum flow rate standards for the Navarro River to maintain the existence of a viable fishery on that watershed. At the April 26th meeting held in Boonville, considerable testimony was presented from those attending that tributaries and in fact the main stem of the Navarro had gone completely dry in 1992. I live in Philo one half mile downstream from the bridge to Hendy Woods. The river above that point is protected spawning ground but there was no surface water except isolated pools. In subsequent years the minimum summer flows have approached dryness."

"Mr. Jones of Fish and Game offered at the meeting that "The fish need water". What we need from Fish and Game is for them to be specific. Establish a minimum summer water flow rate in the major tributaries and on the river to insure the survival of the fishery. By copy of this letter to Mr. Forsberg of Fish and Game, I ask that F&G to make this determination of interim minimum standards and submit them to SWRCB for implementation."

The CSPA Public Trust Protest is Based on the Following:

13. The CSPA public trust protest is based on: (a) Common Law Public Trust Doctrine; (b) California Water Code; (c) Article X, Section 2 of the California Constitution; (d) California Environmental Quality Act and its Guidelines; (e) federal Clean Water Act; (f) federal Endangered Species Act; and (g) state laws and regulations.

Under what conditions may this public trust protest be disregarded and dismissed?

1. Applications 29910 and 29911 should be delayed until the State Water Board conducts a hearing to determine whether the Navarro River is fully appropriated during periods of the summer and fall. Applications 29910 and 29911 should be further delayed until completion of the Navarro River Restoration Plan.

2. Because the applicant proposes to divert water during the critical periods of summer and fall, and also during dry and critically dry water years, the State Water Board, as lead agency under CEQA, should prepare an Environmental Impact Report for the subject project and applications. The EIR should contain a cumulative environmental impact analysis regarding the proposed project, existing projects and future projects in the Navarro River Watershed, and the related potential adverse cumulative impacts to coho salmon and steelhead (all life stages).

3. The season of storage and diversion for the proposed project should be limited by the State Water Board from November 15 to April 15 of each year.

4. The applicant should not be allowed by the State Water Board to store and divert water during dry and critically dry water years during the period from November 15 to April 15, unless the applicant provides evidence to the State Water Board that the storage and diversion of water during these critical water years will not impact coho salmon and steelhead populations and habitat in the Navarro River.

5. For the protection of the public trust coho salmon and steelhead resources of the Navarro River, including aquatic resources and habitat, and other fish species and their habitat, including wildlife resources, the applicant should be required by the State Water Board to bypass the total streamflow, at all points of diversion, whenever the flow in the Navarro River is less than 200 cfs as measured at the USGS streamflow gauge no. 1146800 on the Navarro River near Navarro River, California. This recommended requirement should apply from January 1 to December 31 annually.

6. In order to ensure that streamflow sediment transport capability is maintained in the Navarro River, the total rate of diversion from all diversion points under the subject applications should be limited to 3 cfs. Each diversion facility should be designed as such that the total capacity of all facilities do not exceed 3.0 cfs.

7. We have not reviewed any information and data on environmental conditions of the unnamed tributaries, and fishery resources, wildlife resources, aquatic resources, and riparian habitat, which may exist in these unnamed tributaries. Consequently, we reserve the right to make additional recommended conditions once we review the environmental document for the proposed project.

8. The applicant should provide the State Water Board and the CSPA with information and data regarding the validity of the claimed riparian rights.i.e. season of use, timing of diversion, amount of daily and total diversion, purposes of use, and places of use, etc.

9. We request the applicant to answer this protest.

10. Include the following person on the mailing list for all submittals from all parties in this proceeding:

Michael Jackson, Counsel

California Sportfishing Protection Alliance

P.O.Drawer 207, Quincy, CA 95971

Respectfully Submitted

______________________________________________

Robert J. Baiocchi, Consultant

For: California Sportfishing Protection Alliance

P.O. Box 357

Quincy, CA 95971

Bus Tel: 916-283-3767 or 916-283-1007 - Fax 916-283-4999

July 5, 1995

Certificate of Service

Edward Anton, Chief

Division of Water Rights

State Water Resources Control Board

P.O. Box 2000

Sacramento, CA 95812-2000

Bruce Fodge

Environmental Unit

Division of Water Rights

P.O. Box 2000

Sacramento, CA 95812-2000

John Turner, Chief

c/o Paul Forsberg

Environmental Services

Department of Fish and game

1416 Ninth Street

Sacramento, CA 95814

Richard A. Savoy, Applicant

c/o Janet K. Goldsmith

Kronick, Moskovitz, Tiedmann and Girard

770 L Street, Suite 1200

Sacramento, CA 95814

Stephen C. Volker

Sierra Club Legal Defense Fund

180 Montgomery Street, Suite 1400

San Francisco, CA 94104

Daniel Myers

P.O. Box 178

Philo, CA 95466

Jim Crenshaw, President

California Sportfishing Protection Alliance

Woodland, CA

Bill Jennings, Chairman

California Sportfishing Protection Alliance

Stockton, CA

Mike Jackson, Counsel

California Sportfishing Protection Alliance

Quincy, CA

Interested Parties