Mr. Edward Anton, Chief March 31, 1993
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Mr. Roger Johnson, Asst. Chief
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Petition for Extension of Time by Half Moon Bay Heritage Company; Permit 17813 (Application 25462 (1) Arroyo Leon Tributary to Pilarcitos Creek and (2) Unnamed Stream Tributary Arroyo Leon in San Mateo County; Request for information by the California Sportfishing Protection Alliance.
Dear Mr. Anton and Mr. Johnson:
We have reviewed your letter of February 16, 1993 which you did not accept the CSPA protest of September 28, 1992 on the above mentioned petition for extension of time. Please see attachment.
In not accepting the CSPA complaint you did not follow the rules and you violated Section 749; California Code of Regulations; Title 23 by not allowing the CSPA the opportunity to correct our protest. We are requesting you to reinstate our protest so that we have the opportunity to correct the protest after we receive the following requested information from your offices.
You stated that "environmental concerns are a proper basis of protest, but they need to be related to the effects of the time extension itself". If the subject permit does have mandatory streamflow requirements and other fishery resources protection measures to protect fish and aquatic resources, then the environmental impacts to the fish and aquatic resources related to the effect the petition will have on the public trust resources will occur when the project is completed and water is diverted.
Please clarify whether the CSPA protest is being treated as a public trust complaint. Your letter was unclear.
We are requesting from you the following information concerning the above mentioned petition for extension of time by the Half Moon Bay Heritage Company:
1. Pursuant to Section 844; California Code of Regulation; Title 23; and California Water Code Sections 100, 104, 105, 275, 1250, 1253, 1257, 1394, 1395, 1306, 1397, 1398, 1410, 1546 and 1675; Public Resources Code Sections 21000, 21065 and 21081 [Johnson Rancho County Water District v. State Water Resources Control Board, 235, Cal.App.2d 863, 45 Cal.Rptr.589 (1965); and National Audubon Society v. Superior Court of Alpine County, 33 Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709 (1983]:
In your letter you addressed the changes of ownership of the project and the subject water right permit. We fail to see how the selling of a water right permit on a project which has not been constructed shows the permittee has used due diligence and put the water to full beneficial use. In our protest we requested the Board to have the water revert back to the public because of the 13 year delay. The decision to revert the water back to the public is that of the Board and is not that of its staff. Consequently on that basis alone our protest should have been denied by the Board based on a finding and not by the staff, subject to the opportunity for the CSPA to request a hearing so that due process is served.
Please forward a copy of the written statement from the Half Moon Bay Heritage Company that states the Petitioner has used due diligence and put the applied water to full beneficial use. Did the Petitioner state how satisfactory progress will be made if an extension of time is granted and what obstacles have caused this failure.
Did you advise the Board about the CSPA protest request that the water should revert back to the public? If so, please forward a copy of the finding by the Board.
2. Pursuant to Section 844; California Code of Regulation; Title 23; and California Water Code Sections 100, 104, 105, 275, 1250, 1253, 1257, 1394, 1395, 1306, 1397, 1398, 1410, 1546 and 1675; Public Resources Code Sections 21000, 21065 and 21081 [Johnson Rancho County Water District v. State Water Resources Control Board, 235, Cal.App.2d 863, 45 Cal.Rptr.589 (1965); and National Audubon Society v. Superior Court of Alpine County, 33 Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709 (1983]:
Please forward a copy of the Board's finding that due diligence has been exercised by Half Moon Bay Heritage Company in putting the applied water to full beneficial use.
3. Pursuant to Section 844; California Code of Regulation; Title 23; and California Water Code Sections 100, 104, 105, 275, 1250, 1253, 1257, 1394, 1395, 1306, 1397, 1398, 1410, 1546 and 1675; Public Resources Code Sections 21000, 21065 and 21081 [Johnson Rancho County Water District v. State Water Resources Control Board, 235, Cal.App.2d 863, 45 Cal.Rptr.589 (1965); and National Audubon Society v. Superior Court of Alpine County, 33 Cal.3d 419, 189 Cal.Rptr. 346, 658 P.2d 709 (1983]:
Please forward a copy of the Board's finding that the granting of the Half Moon Bay Heritage Company's extension of time petition is in the public interest and also is in compliance with the above mentioned codes.
4. Pursuant to the California Environmental Quality Act (CEQA) and the CEQA Guidelines:
You cited in your letter that "A CEQA review was done on this project before the permit was issued and a Negative Declaration was issued". The permit was issued in 1980. The petition was noticed in 1992. Thirteen (13) years has passed since the issuance of the Negative Declaration. Environmental circumstances change over time. Fish, aquatic and wildlife species and plant species which are located in the watershed may have been listed under protection of the state and federal Endangered Species Act since the issuance of the permit. CEQA review by the Division of Water Rights was very poor in 1980. We question whether potential adverse cumulative impacts to the public trust resources as a result of this from project and other water projects in the watershed were evaluated and mitigated by the Division. This petition is a project and is subject to CEQA review today.
Please forward a copy of your staff's finding that the granting of the petition is in full compliance with CEQA and the CEQA Guidelines and that the approval of the petition for extension of time complies fully with CEQA and the CEQA Guidelines and that the project will not have a potential significant adverse impact, including cumulative impacts to the public trust resources of the Pilarcitos Creek watershed.
5. Pursuant to Section 782; California Code of Regulation; Title 23; and Section 5937 of the California Fish and Game Code:
Please forward a copy of the Board's finding that the subject petition for extension of time and the subject water right permit is in compliance with Section 782; CCR; Title 23 and Section 5937 of the California Fish and Game Code.
6. Section 1257 of the California Water Code applies to petitions for extension of time. Pursuant to Section 1257:
Please forward a copy of the Board's finding that the Board considered the benefits to be derived in modifying said permit to preserve and enhance the steelhead trout and other fish and wildlife resources affected by said water rights permit before approving said petition for extension of time by the Half Moon Bay Heritage Company.
7. Section 1257.5 of the California Water Code applies to petitions for extension of time. Pursuant to Section 1257.5:
Please forward a copy of the Board's finding that the Board acting upon the subject petition for extension of time did consider the establishment of streamflow requirements to protect fish and wildlife resources as a condition to the approval of the petition.
8. Pursuant to Section 784; California Code of Regulations; Title 23:
Please forward a copy of the Board's finding that the approval of the petition for extension of time by Half Moon Bay Heritage Company will be in full compliance with the Public Trust Doctrine, Section 5937 of the California Fish and Game Code, and Article X, Section 2 of the California Constitution.
9. Please forward a copy of water right permit 17813. Does the permit contain mandatory minimum streamflow requirements to protect the public trust resources?
10. Please forward a copy of the Negative Declaration prepared for the project and the subject water right permit. Was the Board the lead or responsible agency for the Negative Declaration? Did said Negative Declaration evaluate the potential adverse cumulative impacts to the public trust resources from this permit and from other water projects in the Pilarcitos Creek watershed?
Please forward this information to the CSPA at the address listed below within 10 days. Thank you.
Respectfully Submitted
____________________________________
Robert J. Baiocchi, Executive Director, CSPA
P.O. Box 357
Quincy, CA 95971
Office Tel: 916-283-3767
Fax: 916-283-5017 (New)
_____________________________________
Tom Gregory, CSPA Staff
P.O. Box 357
Quincy, CA 95971
Office Tel: 916-283-3767
Fax: 916-283-5017 (New)
cc: Members of the State Water Resources Control Board
Mr. Michael Jackson, Counsel, CSPA
Mr. Jim Crenshaw, President, CSPA
Interested Parties
Attachment: Letter of February 16, 1993 from Ed Anton, Chief, Division
of Water Rights to Bob Baiocchi, CSPA - and Letter of February 19, 1993
to Edward Anton, Chief, Division of Water Rights from Michael Jackson, Counsel,
CSPA .