State of California
Before the State Water Resources Control Board
Carl F. Dobler and Kenneth W. Dobler, Applicants
Application No. 30279
Application to Appropriate Water
Pajaro River (subterranean stream) thence Pacific Ocean
Public Trust Protest
by the California Sportfishing Protection Alliance
We have reviewed the State Water Resources Control Board public notice of October 13, 1995 regarding Application 30279. We reference the public notice of October 13, 1995. The dealine date for filing protest is about November 23, 1995. This protest is timely.
DESCRIPTION OF PROJECT
Application 30279
The applicants seek a right to directly divert water at 2 cfs (not to exceed 100 acre-feet per annum) from the Pajaro River and to collect 1500 acre-feet per annum of water from the Pajaro River at rates not exceeding 8 cfs into an underground storage aquifer located in the Springfield and Giberson Dunes areas between the Pajaro River and Bennett Slough. The applicants propose to pump water from a horizontal subsurface drain collection gallery approximately 50 feet from the Pajaro River subterranean stream flow. The pumped water will be transported through 3,000 feet long, 20-inch PVC pipe to an infiltration field consisting of approximately 5,000 lineal feet of 5-feet wide by 5-feet deep trench. The spreading grounds will consist of about 15 acres located in the northeast corner of the applicant's property. The water will be used for the irrigation of 420 acres of fruit and vegetable crops.
The project is located north of Jensen Road south of the Pajaro River and approximately 4 miles southwest of Watsonville, California.
The water applied for under Application 30279 is for 2.0 cfs by direct diversion (not to exceed 100 AFA); 1,500 acre-feet annually by storage at a rate not exceeding 8 cfs; 1,600 acre-feet annually (combined annual use). The water is to be used for irrigation purposes. The diversion season named in the application is October 15 to May 15.
Application 30279 was filed with the State Water Board on August 24, 1993.
CSPA Public Trust Protest
This protest is based on environmental grounds. The proposed project has the potential to have direct and cumulative adverse impacts to the public trust steelhead trout resources (all life stages and their habitat) of the Pajaro River watershed, including other public trust resources of the Pajaro River such as aquatic resources, wildlife species, riparian habitat, recreation, aesthetics, and threatened and endangered species.
STATEMENT OF FACTS AND REASONS FOR PUBLIC TRUST PROTEST
1. The Pajaro River sustains steelhead trout resources (all life stages and habitat) and other public trust resources. Steelhead trout resources along coastal stream such as the Pajaro River have been adversely impacted by water diversions and land use activities. Steelhead trout in California have been proposed for listing under the protection of the federal Endangered Species Act by the CSPA and other petitioners.
2. The proposed project has the potential to cause direct, indirect, and cumulative adverse impacts to steelhead trout, aquatic resources, wildlife species, riparian habitat, recreation, aesthetics, and state and federal sensitive, rare, threatened and endangered species such as: (a) Tidewater Goby (Proposed Endangered; (b) California Tiger Salamander (Federal Category 2); (c) Santa Cruz Long-toed Salamander (Federal and State Endangered); (d) Mimic Tryonoa, Invertebrates (Federal Category 2); (e) Black Legless Lizard, Reptile (Federal category 2)' (f) Western Snowy Plover, Bird (Federal Threatened); (g) Burrowing Owl, Bird (CDFG Special Concern); (h) Bank Swallow, Bird (State Threatened); (i) California Clapper Rail, Bird (Federal and State Endangered); (j) Robust Spineflower, Plant (Federal Proposed Endangered); (k) Monterey Spineflower, Plant (Federal Proposed Endangered); and (l) Sand Gilia, Plant (Federal Endangered and State Threatened).
3. There may not be sufficient water in the Pajaro River watershed to satisfy the applicants proposed use, the protection of public trust resources, and the protection of state and federal sensitive, rare, threatened and endangered species.
4. Monterey County is the lead agency under the California Environmental Quality Act and its Guidelines for the proposed project. The State Water Resources Control Board (SWRCB) is the responsible agency under the California Environmental Quality Act and its Guidelines for the proposed project.
5. Monterey County has no authority to issue a water right permit for Application 30279. That authority lies with the SWRCB. Monterey County should be required to prepare an Environmental Impact Report (EIR) for the subject application because of the potential adverse direct and cumulative impacts to steelhead trout, aquatic resources, wildlife species, riparian habitat, recreation, aesthetics, and state and federal sensitive, threatened and endangered species.
6. The Monterey County Planning Department and the applicants should consult with the U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service regarding the potential adverse impacts to federal sensitive, rare, threatened and endangered species resulting from the proposed project. The Monterey County Planning Department should incorporate all recovery plans for all sensitive, threatened and endangered species, and recommendations by the U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service to protect these species and their habitat from being jeopardized and extinguished. Steelhead trout should be treated as either threatened and/or endangered in Monterey County's Draft and Final EIR.
7. The Monterey County Planning Department and the applicant should consult with the California Department of Fish and Game regarding the potential impacts to state sensitive, rare, threatened and endangered species resulting from the proposed project. The Monterey County Planning Department should incorporate all state and federal recovery plans for all sensitive, rare, threatened and endangered species, and recommendations by the California Department of Fish and Game to protect these species and their habitat from being jeopardized and extinguished.
8. Monterey County's proposed EIR for the subject water right application should include a cumulative environmental impact analysis of all water projects (storage and diversions) to all public trust resources in the Pajaro River watershed.
9. The EIR being prepared by the Monterey County Planning Department should comply with the California Environmental Quality Act and its Guidelines.
10. In order for the Monterey County Planning Department and the applicant to comply to the needs of the SWRCB and the requirements of CEQA and its Guidelines, the proposed draft and final EIR for the subject water right application should disclose, evaluate and mitigate to less than significant the following issues:
(a) Complete the description of the proposed diversion and use of water by the appplicants as follows: (1) source of water; (2) diversions amounts; (3) description of diversion; (4) description of storage facilities; and (5) description of type and places of use.
(b) Potential direct, indirect, and cumulative impacts of the diversion, storage and use of the state's water by the applicants on instream beneficial use as follows: (1) Steelhead Trout; (2) Water Quality; (3) Riparian Habitat; (4) Wildlife Species; (5) Aquatic Resources; (6) Recreation; (7) Aesthetics; (8) Tidewater Goby (Proposed Endangered; (9) California Tiger Salamander (Federal Category 2); (10) Santa Cruz Long-toed Salamander (Federal and State Endangered); (11) Mimic Tryonoa, Invertebrates (Federal Category 2); (12) Black Legless Lizard, Reptile (Federal category 2)' (13) Western Snowy Plover, Bird (Federal Threatened); (14) Burrowing Owl, Bird (CDFG Special Concern); (15) Bank Swallow, Bird (State Threatened); (16) California Clapper Rail, Bird (Federal and State Endangered); (17) Robust Spineflower, Plant (Federal Proposed Endangered); (18) Monterey Spineflower, Plant (Federal Proposed Endangered); and (19) Sand Gilia, Plant (Federal Endangered and State Threatened).
All potential direct, indirect and cumulative impacts to the above should be supported by documented studies by professional biologists and engineers.
(c) The amount of water required by the CDFG, USFWS, and the USNMFS, to keep in good condition at all times the steelhead trout resources, other fish species and the senstive, rare, threatened and endangered species of the Pajaro River watershed from the point of diversion and storage to the Pacific Ocean, which includes the Pajaro River lagoon (Tidewater Goby - Steelhead Trout - other migratory fish species).
(d) Potential direct, indirect and cumulative impacts of the proposed project on downstream water quality from the proposed project to the Pajaro River lagoon. i.e. water temperatures (fisheries), seawater intrusion, waste treatment plants, cattle grazing, return flows from farming and other sources, the daily amount and quality of fresh water entering the lagoon, etc.
(e) Potential direct, indirect and cumulative impacts to resulting from the project construction activities and operations of the proposed project on fish resources, aquatic resources, vegetation, invertebrates, wildlife, and sensitive, rare, threatened and endangered species.
(f) Potential impacts to the underflow and the surface flows of the Pajaro River watershed resulting from the proposed project. This analysis in the draft EIR should be supported by documented daily, monthly, and annual hydrology.
g) Potential cumulative impacts to the public trust resources resulting from the proposed project and other existing and proposed projects in the Pajaro River watershed.
h) Mitigation measures supported by studies to reduce direct, indirect, and cumulative impacts to public trust resources to a level of insignifiance.
(i) The "no project alternative" should be evalaued in detail in the draft EIR which includes other alternatives for the proposed project.
j) Disclose and describe in the Draft EIR the present water rights held by the applicants, including the amount of water used daily and annually, the places of use, the purposes of use, the season of use, including the method of diversion and storage.
11. The state's water belong to the people of the State of California. The public trust resources of the Pajaro River watershed belong to the people of the State of California and are public trust assets.
12. The applicants should be required by the SWRCB to fund a Pajaro River Steelhead Trout Study. The study should be prepared by the CDFG in cooperation with the USFWS and the USNMFS. The results of the study should be included in the draft EIR for the proposed project.
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; (g) California Fish and Game Code 5937; and (h) state laws and regulations.
Under what conditions may this public trust protest be disregarded and dismissed?
1. None at this time.
2. The CSPA request the opportunity to review the draft and final EIR and provide comments to the Monterey County Planning Department and the SWRCB. The Monterey County Planning Department should be required by the SWRCB to submit to the CSPA a timely copy of the draft and final EIR which includes all supplemental report, studies, and CEQA approvals by Monterey County.
3. Upon review of the draft and final EIR the CSPA may submit dismissal terms and considerations or require a hearing before the SWRCB.
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
November 21, 1995
Certificate of Service
Edward Anton, Chief
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Robert Been, Application Unit
Ross Swenerton, Environmental Unit
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Carl F. Dobler and Kenneth W. Dobler
c/o Mike C. Dobler
174 Struve Road
Wastonville, CA 95076
Steve Volker, Attorney-at-Law
Sierra Club Legal Defense Fund
180 Montgomery Street, Suite 1400
San Francisco, CA 94104-4209
Suzanne Bevash and Danielle Fugere, Counsel
California Sportfishing Protection Alliance
805 Lake Street, Suite 3
San Francisco, CA 94118
Mike Jackson, Counsel
California Sportfishing Protection Alliance
P.O. Drawer 207
Quincy, CA 95971
Dave Heaslett, Counsel
Carmel River Steelhead Association
P.O. Box 20156
Graeagle, CA 96103
Dr. Roy Thomas
Carmel River Steelhead Association
P.O. Box 3603
Carmel, CA 93921
John Williams
875 Linden Lane
Davis, CA 95616
Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Avenue, Suite D
Woodland, CA 95695
Bill Jennings, Chairman
California Sportfishing Protection Alliance
5637 North Pershing Avenue, Suite 2-2A
Stockton, CA 95207
Bud Carney
Monterey County Planning Department
P.O. Box 1208
Salinas, CA 93902
Wayne White, State Supervisor
Joel Medlin, Field Supervisor
U.S. Fish and Wildlife Service
2800 Cottage Way
Sacramento, CA 95825
Marty Golden
U.S. National Marine Fisheries Service
501 W. Ocean Blvd, Suite 4200
Long Beach, CA 90802-4213
Patricia Anderson
Department of Fish and Game
23845 Summit Road, Suite 1
Los Gatos, CA 95030
Interested Parties