Russian Gauer Ranch SWRCB testimony April 14, 1995

CSPA

Russian River Watershed

Gauer Ranch Project

Testimony to SWRCB

STATE OF CALIFORNIA

BEFORE THE STATE WATER RESOURCES CONTROL BOARD

In the Matter of Water Right Applications for the Gauer Ranch Project of the Huntington Beach Company, in the Russian River Watershed, in Sonoma County.

Water Right Applications 29703, 29704, 29705, 29706, 29707, 29708, and 29811.

Sausal Creek, Miller Creek, and unnamed tributaries, tributaries to Russian River thence Pacific Ocean.

Hearing of May 23, 1995 and if necessary, May 24, 1995

TESTIMONY OF ROBERT J. BAIOCCHI

FOR THE CALIFORNIA SPORTFISHING PROTECTION ALLIANCE

AND THE MENDOCINO ENVIRONMENTAL CENTER

My name is Robert J. Baiocchi. I am a consultant for the California Sportfishing Protection Alliance (hereinafter known as "CSPA"). I maintain an office for the CSPA at 2288 East Main Street, Suite F, in Quincy, California. I reside at Graeagle, California. The mailing address for the CSPA office is: P.O. Box 357, Quincy, California, 95971.

My resume shows my qualifications to testify as an expert witness. I qualified as an expert witness at the Bay Delta Water Rights Hearing in 1992.

The Project

On February 1, 1991, the SWRCB issued a public notice of the above mentioned water right applications filed by Huntington Beach Company for the Gauer Ranch Project. I prepared and filed a formal protest against the project on behalf of the CSPA on environmental grounds. The SWRCB received and accepted ten protests, including the CSPA protest. Subsequently, the applicant: (1) withdrew the request for direct diversion from Sausal Creek under WR Application 29705; (2) amended the WR applications to reduce the total combined amount of water to 1,500 afa from the 3,033 originally applied for, from all sources for both storage and direct diversion; (3) agreed to a 15 cfs bypass flow in Sausal Creek; and (4) agreed to include terms recognizing senior rights in any permits that may be issued by the SWRCB pursuant to these WR applications. We reference Notice of Public Hearing Regarding Water Right Applications for the Gauer Ranch Project of the Huntington Beach Company, in Sonoma County, Specifically Considering: Applications 29703, 29704, 29705, 29706, 29707, 29708, and 29811; March 23, 1995; State Water Resources Control Board.

The proposed Gauer Ranch Project is located on the southwest slopes of Black Mountain, two miles north of Jimtown, on the eastern edge of Alexander Valley in Sonoma County. Most of the Ranch is within the Sausal Creek watershed, with a small portion in the Miller Creek watershed. Both watersheds drain into the Russian River. The applicant proposes to cultivate 1,500 acres of new and existing grapevines on portions of the 5,380 acre gross place of use. The applicant seeks appropriate rights for up to six (6) proposed earthen dams to be built on three (3) unnamed streams and Miller Creek; and two existing dams on unnamed streams, all located on the Ranch property. The reservoirs will have a combined total storage capacity of 4,064 acre-feet. The proposed dams range in height from 17 to 250 feet. We reference Notice of Public Hearing Regarding Water Right Applications for the Gauer Ranch Project of the Huntington Beach Company, in Sonoma County, Specifically Considering: Applications 29703, 29704, 29705, 29706, 29707, 29708, and 29811; March 23, 1995; State Water Resources Control Board.

1. By letters dated July 12, 1994 and October 13, 1994, the California Sportfishing Protection Alliance (CSPA) submitted formal complaints to the State Water Board. I prepared said letters of July 12, 1994 and October 13, 1994. CSPA requested that; (1) the State Water Board evaluate the cumulative environmental impacts to the public trust resources of the Russian River Watershed resulting from approximate 1,404 permitted and licensed water right applications and over 80 pending water right applications within the Russian River watershed, (2) that scientific studies be prepared to determine the amount of water necessary to sustain the public trust fishery resources of the river and its tributaries, and (3) that the State Water Board hold a public hearing.

The CSPA letters were treated as a complaint by the State Water Board. As a result of the CSPA complaint, the State Water Board held a workshop on January 4, 1995 in Sacramento. Michael Jackson, John Williams and I attended said workshop. It is my opinion that a majority of those people testifying at the workshop requested the State Water Board to correct the environmental impacts affecting the public trust resources of the Russian River Watershed.

On August 28, 1992, Betty Ball, Coordinator, for the Mendocino Environmental Center directed a letter to the State Water Board.

Betty Ball's letter stated the following:

" Water development in the Russian River Watershed has seemingly continued unabated for several years. Since there is a cumulative impact from continued diversion for stockwatering or irrigation purposes, it seems it is time to do a basin-wide study to determine just what impacts have occurred, and how much more water, and at what rate, can safety be diverted without continued harm to the fisheries and wildlife habitat."

" We hereby request that the State Water Resources Control Board begin a basin-wide study of the Russian River watershed prior to approving any new diversion projects. It is not fair for each individual applicant to have to conduct an EIR when this is a basin-wide problem. It is the responsibility of the State Agency to do the study at taxpayer's expense in order to collect the data necessary to make appropriate decisions regarding applications for water appropriation from the Russian River and its tributaries".

It is clear the State Water Resources Control Board has been repeatedly requested by concerned public interest parties to prepare a basin-wide cumulative environmental analysis of the Russian River Watershed.

2. The CSPA and other parties filed a petition to list steelhead trout as either threatened or endangered under the protection of the federal Endangered Species Act (ESA). The U.S. National Marine Fisheries Service (USNMFS) has delayed making a determination whether to list this species, but it is my understanding a decision is forthcoming. Coho salmon are also being considered for listing under the protection of the federal ESA. The Russian River and its tributaries sustain Coho salmon and steelhead and their habitat.

3. Coho salmon and steelhead trout are public trust resources and assets. Fish are the property of the people of the State of California. Fish are protected under numerous environmental laws such as California Fish and Game Code 5937 and the common law public trust doctrine.

Considering that there are 1,404 permitted water rights and over 80 pending water right applications in the Russian River Watershed, and an unknown number of riparian diverters, there is a potential that the Gauer Ranch Project in conjunction with existing water project and proposed water project will have significant adverse cumulative environmental impacts to steelhead trout populations levels and their habitat, and other public trust resources and assets in the Russian River Watershed.

I refer you to Key Issue No. 7.

To date the State Water Board has not prepared a cumulative environmental impact analysis of the Russian River Watershed. The EIR prepared by the applicant did not evaluate the potential adverse cumulative environmental impacts to steelhead trout, and other public trust resources and assets of the Russian River Watershed resulting from the proposed Gauer Ranch Project, existing projects and future projects.

The duty to evaluate adverse [cumulative] environmental impacts does not depend upon a showing by the public [CSPA/MEC], or even other public agencies, that there will be cumulative impacts. The project proponent [Huntington Beach Company] must present substantial evidence from which a reasoned conclusion may be reached that there will not be significant adverse cumulative impacts. We reference Laurel Heights, supra 47 Cal 3d. at 405-406. The duty to provide evidence rests with the applicant [Huntington Beach Company] and the agency [SWRCB], and not with the public [CSPA/MEC]. We reference Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 304-305 Section 21002, Section 21080.5(d)(2)(l).

The burden is not shifted at the administrative level to those [CSPA/MEC] challenging a project to present evidence of adverse impacts before the agency [SWRCB] can be required to assess whether such impacts exists. The failure to assemble adequate information for a meaningfully environmental review cannot be used to justify a finding of no significant impact. We reference Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at 311-312; Christward Ministry v. Superior Court (1986) 184 CalApp.ed. 180, 197 and Laurel Heights, supra, 47 Cal.ed at 405. Otherwise, the agency [SWRCB] would be allowed to avoid an attack on the adequacy of the information simply by not requiring the submission of such information. We reference Kings County, supra, 221 Cal.App.ed at 723.

As stated beforehand, there are potential significant cumulative environmental impacts which may result from the proposed project, existing projects and future projects.

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 15355, subd. (b).)

A legally adequate "cumulative impacts analysis" thus is an analysis of a particular project viewed over time and in conjunction with other related past, present, and reasonably foreseeable probable projects whose impacts might compound or interrelate with those of the project at hand. Such an analysis is necessary because the full environmental impact of a proposed action cannot be gauged in a vacuum. (Emphasis Added)

The courts have found that a legally adequate cumulative impact analysis is an analysis of a particular project viewed over time and in conjunction with other related past, present and reasonably foreseeable projects whose impacts might compound or interrelate with those of the project at hand. Such an analysis assess cumulative damage as a whole greater than the sum of its parts. We reference Environmental Protection Information Center v. Johnson (1985) 170 Cal. App. 3d 604, 625 [216 Cal. Rptr. 502, 515]

By far the most important recent case on cumulative impacts is Kings County Farm Bureau et al. v. City of Hanford (5th Dist. 1990) 221 Cal. App. 3d 692; 222 Cal. App. 3d 516a [270 Cal. Rptr. 650] The Court of Appeal held inadequate the cumulative impact analysis prepared for an EIR for a proposed coal-fired cogeneration power plant. The EIR's approach to assessing the significance of cumulative air quality impacts was based on a misunderstanding of the applicable legal requirements.

It is my belief that the State Water Board must hold Huntington Beach Company's water right applications in abeyance until the State Water Board has prepared, completed, and adopted a basin-wide cumulative environmental analysis for the Russian River Watershed so that the public trust resources and assets are protected and restored. This may mean denying pending water right applications such as the Huntington Beach Company's applications, and also modifying existing water right permits and licenses to balance the uses and protect the public trust fish and wildlife assets of the people of the State of California.

4. I am not a fisheries biologist, however it is common knowledge that Coho salmon and steelhead trout are affected by several factors including instream flows, water temperatures, water quality, substrate (streambed-spawning gravel) conditions and barriers that prevent migration. These factors can, in turn, be affected by the diversion and use of water, adjacent land use practices (i.e. agricultural practices, gravel mining operations, road building, grazing, and the loss of riparian habitat), and construction of dams and diversions in the main stem, or in tributaries used by Coho salmon and steelhead. The level of instream flow is also important from the standpoint of aesthetics and recreational use and enjoyment of the river.

I refer all fishery questions to Felix Smith and John Williams, expert witnesses for the CSPA/MEC concerning the above mentioned statement.

In order for the Board to make adequate findings as a result of this hearing the Board needs to have Charles Hanson, fisheries biologist for the Huntington Beach Company answer the following questions:

a) What will be the direct impacts to steelhead trout populations and habitat from reduced flows in the Sausal Creek Watershed and the Miller Creek Watershed as a result of the proposed project?

b) What is the present condition of steelhead trout habitat in the Sausal Creek Watershed? In the Miller Creek Watershed?

c) Did Coho salmon historically migrate into the Sausal Creek Watershed? In the Miller Creek Watershed?

d) What are the steelhead trout population estimates in the Sausal Creek Watershed? In the Miller Creek Watershed? In the Russian River Watershed over the past 20 years?

e) What is the present condition of steelhead trout populations and their habitat in the Russian River Watershed?

f) How much steelhead trout habitat in the Sausal Creek Watershed will be lost as a result of the proposed project? In the Miller Creek Watershed?

g) How much resident wild trout habitat in the Sausal Creek Watershed will be lost as a result of the proposed project? How much resident trout habitat was lost as a resulting of the two existing dams in Gauer Ranch?

h) Will the proposed project alter water temperatures and harm steelhead trout (all life stages) in the Sausal Creek Watershed? In the Miller Creek Watershed?

i) Will the proposed project's dam on Miller Creek prevent the upstream migration of steelhead trout?

j) As a result of the proposed project, will the mitigation measures proposed by the applicant keep steelhead trout and resident wild trout in good condition at all times during all water year types? i.e. normal, below normal, dry and critically dry water years.

k) What will be the impacts to aquatic species and their habitat in the Sausal Creek Watershed as a result of the proposed project? In the Miller Creek Watershed?

l) What are the other fish species and their habitat in the Sausal Creek Watershed? In the Miller Creek Watershed? In the unnamed tributaries to be affected by the project?

m) What are the potential significant cumulative environmental impacts to Coho salmon and steelhead populations and habitat in the Russian River Watershed from the proposed project [Gauer Ranch Project], from existing projects [1404 permitted water rights], from future projects [over 80 pending water right applications, and from riparian diverters]?

n) What has caused the significant decline to Coho salmon and steelhead trout resources in the Russian River Watershed?

o) Has the applicant prepared a sediment control plan to prevent potential impacts to steelhead trout and resident trout habitat during the construction period and post-project periods [land use activities associated with the proposed project]?

p) Based on the information in the notice of applications to appropriate water, Huntington Beach Company is seeking a direct diversion rate of 1.8 cfs in the Sausal Creek Watershed [Application 29707] from April 1 to September 30 for irrigation purposes only.

What will be the impact to steelhead trout (all life stages) and habitat in the Sausal Creek Watershed by the direct diversion of 1.8 cfs during the summer and fall periods during normal, below normal, dry and critically dry water years?

q) Based on information in the notice of applications to appropriate water, Huntington Beach Company is seeking a rate of 5 cfs to offstream storage from October 1 to May 1 annually [Application 29707].

What will be the impact to steelhead trout (all life stages) and habitat in the Sausal Creek Watershed by the diversion rate of 5.0 cfs to offstream storage during the months of October and November during normal, below normal, dry and critically dry water years?

r) How much water [daily] is necessary for the upstream migration of adult steelhead trout in the Sausal Creek Watershed? In the Miller Creek Watershed?

s) How much water [daily] is necessary for the downstream migration of juvenile steelhead trout in the Sausal Creek Watershed? In the Miller Creek Watershed?

5. In order to complete their life cycle, Coho salmon and steelhead trout need adequate streamflows for upstream migration (adult), adequate flows for spawning and rearing habitat, adequate flows for downstream migration (juvenile), adequate water temperatures for spawning and rearing, adequate gravel for spawning, and adequate flows which flush the spawning areas and prevents silting.

I refer all fishery questions to Felix Smith and John Williams, expert witnesses for the CSPA/MEC concerning the above mentioned statement.

6. We submit that the California Resources Agency in 1971 made the following finding:

A. That the Russian River was a Class I Premium Waterway for salmon and steelhead trout.

B. That the Russian River sustained a run of about 62,000 steelhead trout.

C. That the Russian River sustained a run of about 7,500 salmon.

D. That the Russian River was an extraordinary fishery waterway.

E. That the Russian River (Ukiah to mouth) was an extraordinary scenic, fishery, wildlife and recreation waterway in 1970.

F. That the Russian River in Sonoma and Mendocino counties sustained 1,740 acres of premium riparian lands.

G. That the Russian River was an important and significant boating waterway.

H. That the Russian River provided 25,000 to 50,000 estimated man use days annually for boating.

I. That the Russian River would increase in importance as a recreational river with the increase in population plus the growing interest in river touring. (Squaw Rock to Healdburg)

Given that finding by the California Resources Agency in 1971, the State Water Board in 1986 adopted Decision 1610. Decision 1610 did not evaluate and mitigate to less than significant the potential adverse cumulative environmental impacts to Coho salmon and steelhead trout, and other public trust resources of the Russian River Watershed resulting from proposed projects, existing projects and future projects.

7. We submit that the Department of Fish and Game made the following finding in 1994 concerning the steelhead trout resources of the Russian River Watershed in the proposed DFG steelhead management plan for California:

A. " Habitat for naturally spawning steelhead in the Russian River system is severely degraded. Land-use activities, such as logging, road building, and grazing have caused serious damage to the watershed and streams. The resulting effects of erosion and loss of riparian vegetation have smothered spawning gravels, reduced rearing habitat, increased stream width, and decreased stream depth. These problems are exacerbated by water diversions and ground water pumping which cause low flow conditions and dewatering of tributaries. " (Emphasis Added)