Purisma

State of California

Before the State Water Resources Control Board

Water Rights Application 30462

Aldo and Rose Guisti, Applicant

Purisima Creek, Tributary to Pacific Ocean

County of San Mateo

Public Trust Protest by

California Sportfishing Protection Alliance

1. We have reviewed Notice of Application to Appropriate Water noticed by the State Water Resources Control Board (hereinafter known as "SWRCB") on August 2, 1996 regarding Application 30462. The deadline date for submitting protests with the SWRCB is about September 12, 1996.

We reference said notice for Water Right Application 30462 of August 2, 1996 by the SWRCB.

2. Purisima Creek MAY sustain steelhead trout species and their habitat. Populations of steelhead trout and their habitat has been adversely degraded in California.

Restoration of California's anadromous fish populations is mandated by The Salmon, Steelhead Trout, and Anadromous Fisheries Program Act of 1988 (SB 2261).

The historic review and current status of California steelhead in coastal drainages south of San Francisco Bay report was prepared, in part, by Robert Titus. That report indicated that the writers of the report were reviewing DFG file material to determine whether or not steelhead trout existed and utilized the Purisima Drainage.

The staff of the Division of Water Rights should consult with Jerry Mensch and Robert Titus, Environmental Services, Department of Fish and Game, main office, Sacramento, to determine whether or not steelhead trout species (all life stages) existed and utilize the Purisima watershed.

3. Steelhead trout south of San Francisco Bay are being proposed for listing as endangered by the U.S. National Marine Fisheries Service under the protection of the federal Endangered Species Act. The Purisima watershed is south of San Francisco Bay.

The applicant's existing point of diversion on Purisima Creek is controlled as an adjudicated right during the summer months. However, the adjudication (1983) may not have considered the daily amounts of water necessary to protect steelhead trout and their habitat, and other public trust resources in the summer months, in the event they existed in the watershed.

The applicant's season of diversion does not include any of the months in the adjudicated period for Purisima Creek. However, during low flow periods in low water years steelhead trout species and habitat have the potential to be adversely affected by the proposed diversions and reservoirs during the season of diversion and storage in the event the fish use the Purisima Creek watershed.

San Mateo County is the lead agency for the CEQA document. The SWRCB notice did not provide the mailing address of the San Mateo County Planning Department. The Division of Water Rights staff should advise San Mateo County that in the event steelhead trout species and their habitat exist in the Purisima Creek watershed, that San Mateo County should prepare an Environmental Impact Report which evaluates and mitigates the direct, indirect, and cumulative impacts to steelhead trout and their habitat in the Purisima Creek watershed as a result of this project, existing projects, and future projects.

In the event steelhead trout species and their habitat exist in the Purisima Creek watershed, the applicant and/or their agent should consult (informal conference) with the USNMFS as required by the federal ESA because steelhead are being proposed for listing under the protection of the federal ESA.

4. Red-legged frog species and their habitat MAY exist in the Purisima Creek watershed. The federally - threatened red legged frog species and their habitat are now protected by the Federal Endangered Species Act.

The applicant's existing point of diversion on Purisima Creek is controlled as an adjudicated right during the summer months. However, the adjudication (1983) may not have considered the daily amounts of water necessary to protect red-legged frog species and their habitat during the periods of the summer in the event they existed in the watershed.

The applicant's season of diversion does not include any of the months in the adjudicated period for Purisima Creek. However during low flow periods in low water years red-legged frog species and habitat have the potential to be adversely affected by the proposed diversions and reservoirs during the season of diversion and storage.

The Division of Water Rights staff should advise San Mateo County that in the event red-legged frog species and their habitat exist in the Purisima Creek watershed, that San Mateo County should prepare an Environmental Impact Report which evaluates and mitigates the direct, indirect, and cumulative impacts to red-legged frog species and their habitat in the Purisima Creek watershed as a result of this project, existing projects, and future projects.

The staff of the Division of Water Rights should consult with Jerry Mensch, Environmental Service, Department of Fish and Game, main office, Sacramento, to determine whether or not the Purisima watershed sustains red-legged frog species and their habitat.

5. The San Francisco garter snake species and their habitat MAY exist in the Purisima Creek watershed. The state - endangered San Francisco garter snake species and their habitat are protected by the State Endangered Species Act.

The applicant proposes to enlarge the existing off-stream reservoir. The applicant also proposes to construct two (2) new off-stream reservoirs. The enlargement of the existing reservoir, and the construction of the two new reservoirs may affect San Francisco garter snake and their habitat.

The Division of Water Rights staff should advise San Mateo County that in the event San Francisco garter snake species and their habitat exist in the Purisima Creek watershed, that San Mateo County should prepare an Environmental Impact Report which evaluates the direct, indirect, and cumulative impacts to San Francisco garter snake and their habitat in the Purisima Creek watershed as a result of this project (reservoirs), existing projects, and future projects.

6. The applicant proposes to enlarge the existing off-stream reservoir, and also proposes to construct two (2) new off-stream reservoirs.

We believe that, any reservoir, whether onstream or off-stream, should include in its design, construction, and operation the establishment and maintenance of an undisturbed 150-foot-wide strip of natural upland vegetation around the water storage reservoir to protect wildlife species and their habitat, including any proposed and listed threatened and endangered species and their habitat in the watershed.

7. The Purisima Creek watershed should sustain other public trust resources such as fish species and their habitat, aquatic species and their habitat, wildlife species and their habitat, and riparian habitat. The proposed project has the potential to cause adverse direct, indirect, and cumulative impacts to the above noted species and their habitat, including riparian habitat.

8. The Division of Water Rights should require mandatory daily minimum flow requirements from the applicant's points of diversion that protect fish, aquatic resources, wildlife, and riparian habitat, from the points of diversion in the Purisima Creek watershed to the Pacific Ocean.

9. The diversion of water to the three off-stream reservoirs has the potential to entrained fish and aquatic species, and harm them. The Division of Water Right should require the screening of all points of diversion to the off-stream reservoirs.

10. The Division of Water Rights should require the applicant to install full-time measuring devices which measures the water diverted daily from Purisima Creek, and the water stored daily in the three (3) reservoirs.

11. This protest is based on: (a) Common Law Public Trust Doctrine; (b) Section 5937 of the California Fish and Game Code; (c) Section 782, CCR, Title 23; (d) Federal Endangered Species Act; (e) State Endangered Species Act; (f) California Environmental Quality Act and its Guidelines and (g) all federal and state laws and regulations.

12. The agent and mailing address of the CSPA is: Bob Baiocchi, Consultant, CSPA, P.O. Box 357, Quincy, CA 95971.

13. We have no dismissal terms and condition at this time until: (a) we receive copies of consultation between the Division of Water Rights and the Department of Fish and Game on the above referenced species and their habitat; and (b) we have reviewed copies of the draft and final CEQA document for the proposed project under Water Right Application 30462 which will be prepared by San Mateo County.

14. We are requesting the Division of Water Rights require that the applicant submit an answer to our protest.

Respectfully Submitted

______________________________________________

Robert J. Baiocchi, Consultant

For: California Sportfishing Protection Alliance

P.O. Box 357

Quincy, CA 95971

Bus Tel: 916-283-1007 (Law Office) or 916-836-1115 (Home Office) or 916-283-3767 (CSPA Quincy Office); Fax: 916-283-4999 (Law Office) or 916-283-5017 (CSPA Office)

September 4, 1996

Certificate of Service

Hugh F. Smith

Division of Water Rights

P.O. Box 2000

Sacramento, CA 95812-2000

(Original)

Steve Herrera, Asst. Supervisor

Division of Water Rights

P.O. Box 2000

Sacramento, CA 95812-2000

Aldo and Rose Giusti, Applicant

1800 Higgins Canyon

Half Moon Bay, CA 94019

Jerry Mensch, Environmental Services

Robert Titus, Environmental Services

Department of Fish and Game

1416 Ninth Street

Sacramento, CA 95814

Jim Crenshaw, President, CSPA

1248 East Oak Avenue, Suite "D"

Woodland, CA 95695

Interested Parties