Subject: Carmel River - Las Garzas Creek - Steelhead - CSPA Action
Date: Thu, 09 Dec 1999 11:55:26 +0000
From: BOB BAIOCCHI <cspa@psln.com>
Organization: CSPA
To: Large CSPA email distribution

Interested Parties: Note: The Carmel River Steelhead Association also filed a formal protest in this matter....Their protest was an outstanding piece of work prepared by Clive Sanders of the CRSA.....Bob Baiocchi, CSPA

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State of California

Before the State Water Resources Control Board

Water Rights Application No. A029282

Petition T030980

Water Rights Application No. 29282

Rancho San Carlos Partnership, Applicant

Las Garzas Creek, Tributary to Carmel River thence Pacific Ocean

County of Monterey

Public Trust Protest by the
California Sportfishing Protection Alliance

Pursuant to the State Water Resources Control Board's regulations and
state statutes, the California Sportfishing Protection Alliance hereby
file a public trust protest against WR Application A029282 and T030980
on environmental and legal grounds as follows:

Water Right Application A029282

The applicant proposes to divert water from Las Garzas Creek, a
tributary to the Carmel River. The amount of water applied for is 250
acre-feet per annum at Moore's Lake and at the wetlands adjacent to
Moore's Lake. Water is proposed to used for irrigation, stockwatering,
wildlife enhancement, recreation, and dust control. The applicant has
requested to divert water from January 1 to April 30 annually. The
diversion and place of use are located within the County of Monterey.

Petition T030980

The applicant proposes to divert water from Las Garzas Creek, a
tributary to the Carmel River. The amount of water applied for is 250
AFA. Water will be used irrigation, stockwatering, dust control, road
construction and maintenance, fire protection, and wildlife enhancement.
The applicant has requested to divert water from November 1, 1999 to
April 30, 2000. The diversion and place of use are located within the
County of Monterey.

Background Information

On June 24, 1988, Rancho San Carlos Partnership, the applicant, filed
Application 29282 with the State Water Board seeking rights to collect
250 acre-feet of storage in an existing onstream pit-type reservoir
called Moore's Lake. Because Las Garzas Creek is tributary to the Carmel
River, actions were deferred by the State Water Board until the issuance
of Board Decision 1632 and Board Order WR 95-10. However, the State
Water Board has continued to suspend actions on pending water right
applications in the Carmel River Watershed pending resolution of
environmental issues and project modifications. The California
Sportfishing Protection Alliance was a direct party to Board Decision
1632 and Board Order WR 95-10, and participated at the State Water Board
hearings in about 1992.

As a condition for approval of the Santa Lucia Preserve, the
Environmental Impact Report, required Moore's Lake to be emptied,
dredged and all non-native species removed. The Rancho San Carlos
Partnership, after obtaining a Lake and Streambed Alteration Agreement
from the Department of Fish and Game, obtaining a water quality
certification from the State Water Board, and determining that a U.S.
Army Corps permit was not necessary, agreed to bypass the natural flows
of Las Garzas around the reservoir site, and drain and dredge the
reservoir. Rancho San Carlos Partnership's plan was to complete the
rehabilitation of Moore's Lake by the end of the summer and refill the
reservoir with winter runoff.

According to the Division of Water Rights, as a result of a public
trust complaint filed by the California Sportfishing Protection Alliance
with the State Water Board, Rancho San Carlos Partnership was advised
that their limited pre-1914 and decreed rights did not provide a
sufficient basis of right to refill Moore's Lake. However, because the
reservoir is an onstream pit type reservoir and the bypass system is not
sufficiently large to bypass all winter flows, Rancho San Carlos
Partnership cannot stop the filling of Moore's Lake. Therefore Rancho
San Carlos Partnership requested a temporary permit (T030980) for the
right to initially refill Moore's Lake until the requested permanent
water right (A029282) was considered for approval by the State Water
Board, which would allow continued retention and future collection of
the state's waters to storage at Moore's Lake.

Water collected to storage by Rancho San Carlos Partnership will be
used for irrigation of 80 acres of pasture, domestic irrigation of 3
acres of lawn, stockwatering of 300 cattle, recreational, wildlife
enhancement, and dust control throughout the property.

On July 6, 1995, the State Water Board adopted Decision 1632 regarding
the New Los Padres Project of the Monterey Peninsula Water Management
District. In D-1632, the State Water Board determined that water is only
available for appropriation within the Carmel River Watershed from
January 1 to April 30 of each year, with exception of uses identified in
Table 13 of D-1632. Application 29282 is a Category 1 filing, which
states that applications seeking to divert water during the season of
availability, January through April 30 of each year would be approved.
Applications to appropriate water within Category 1 are not subject to
D-1632 and the State Water Board has determined that water is available
for appropriation.

Statement of Facts and Reasons for Public Trust Protest

1. The Carmel River and its tributaries sustain steelhead species and
their habitat (all life stages). Las Garzas Creek sustains steelhead
species and their habitat (all life stages).

2. Carmel River steelhead were listed as threatened under the protection
of the provisions of the federal Endangered Species Act following Board
Decision 1632 and Board Order WR 95-10.

3. The CSPA public trust complaint against Rancho San Carlos
Partnership was filed because of a kill of threatened Carmel River
steelhead in Las Garzas Creek caused by Rancho San Carlos Partnership
operation and management of Moore's Lake.

4. The Complaint Unit of the Division of Water Rights recently made
recommendations concerning the management and the operation of Moore's
Lake in conjunction with public trust complaints filed by the CSPA and
another party. The State Water Board has not yet adopted the staff
recommendations.

5. The Carmel River sustains federally listed and endangered California
Red-Legged Frog species and their habitat. It is likely Las Garzas Creek
did sustain and may continue to sustain endangered California Red-Legged
Frog species and their habitat (all life stages).

6. Board Decision 1632 and Board Order WR 95-10 did not provide any
specific mandatory protection measures for threatened and federally
listed steelhead in the Carmel River because threatened steelhead were
not listed until after the decision and order were adopted by the State
Water Board. Since steelhead were listed as threatened under protection
of the federal ESA, the State Water Board has not amended any of its
decision and orders to protect threatened Carmel River steelhead from
jeopardy, harm, and harassment from water diversions in the Carmel River
watershed.

7. Application A029282 is being treated as a Category 1 filing by the
State Water Board and its staff. Applications within this category are
not subject to Board Decision 1632. Applications under Category 1 are
allowed to appropriate water from January 1 to April 30 of each year
during any water year type. Category 1 should be amended by the State
Water Board not to allow diversions and uses of water during dry, and
critically dry water years to protect threatened Carmel River steelhead
and their habitat (all life stages).

8. Applications A029282 and T030980 should be held in abeyance until
Board Decision 1632 has been amended to include specific terms and
conditions that protect Carmel River threatened steelhead species and
their habitat (all life stages) from being jeopardized, harmed, and
harassed from existing and proposed diversions of the Carmel River and
its tributaries.

9. Rancho San Carlos Partnership should formally consult with the U.S.
National Marine Fisheries Service concerning Applications A029282 and
T030980, and obtain the measures necessary to protect threatened
steelhead species from being destroyed, harmed, and harassed that
migrate into Las Garzas Creek for spawning and rearing purposes.

10. Rancho San Carlos Partnership should formally consult with the U.S.
Fish and Wildlife Service concerning Applications A029282 and T030980,
and obtain from that agency the measures necessary to protect endangered
California Red-Legged Frog species and their habitat (all life stages)
in the Las Garzas Creek Watershed.

11. Rancho San Carlos Partnership should not be allowed to use any water
from Moore's Lake and from the Las Garzas Creek Watershed until they
consult with the U.S. National Marine Fisheries Service and obtain
recommended protection measures from that agency to keep steelhead in
good condition al all times in Las Garzas Creek below Moore's Lake. Said
recommendation from the U.S. National Marine Fisheries Service should be
incorporated into the terms and condition of any permit issued by the
State Water Board for Applications A029282 and T030980.

12. Rancho San Carlos Partnership should be required by the State water
Board to install and maintain full time gauging devices that measures
reservoir levels at Moore's Lake, and also measures flow being released
from Moore's Lake into Las Grazas Creek. All diversions by Rancho San
Carlos Partnership from the Las Garzas Creek Watershed should also be
required to have fulltime measuring devices.

13. During the interim period the natural flows of Las Garzas Creek
should be bypass around the reservoir by Rancho San Carlos Partnership
until such time the U.S. National Marine Fisheries Service submits
steelhead protection measures to the State Water Board for Application
A029282, and the Board approves said application. In the event Rancho
San Carlos Partnership cannot obtain protection measures for Las Garzas
Creek from the U.S. National Marine Fisheries Service during the
proposed diversion season ending April 30th, T030980 should be delayed
until such time that Rancho San Carlos Partnership has obtained said
recommendations from the U.S. National Marine Fisheries Service to
protect Carmel River threatened steelhead from being jeopardized,
harmed, and harassed in Las Garzas Creek.

14. The public notice for said applications was November 19, 1999. The
deadline date for filing formal protests is December 8, 1999 (19 days
excluding weekends and holidays). The public notice was noticed prior to
the four day Thanksgiving Holidays. The notice was signed by Jerry
Johns, Asst. Chief, Division of Water Rights. The Division of Water
Rights public notice of said application was too short, unreasonable,
and not in the public interest. Said public notice should be noticed
again to serve the public process rights of the public who are concerned
about the Carmel River.

15. The CSPA public trust protests is based on: (a) Common Law Public
Trust Doctrine; (b) California Fish and Game Code 5937; (c) Article X,
Section 2 of the California Constitution; (d) the provisions of the
federal Endangered Species Act; (e) the provisions of the federal Clean
Water Act; (f) California Water Code; (g) California Environmental
Quality Act; and (h) other statues and regulations.

Under What Conditions May This Public Trust Protest Be disregarded or
Dismissed?

A. Under no conditions SHOULD the CSPA public trust protest be
disregarded or dismissed unless an agreement is reached between the
CSPA, Carmel River Steelhead Association, Rancho San Carlos Partnership,
and the State Water Board's staff in conjunction with recommendations by
the U.S. National Marine Fisheries Service.

B. Also as stated in this formal public trust protest.

A copy of said public trust protest is being forwarded to the agent for
Rancho San Carlos Partnership as shown below.

Respectfully Submitted

SIGNED BY BOB BAIOCCHI
___________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 530-836-1115; Fax: 530-836-2062

Dated: December 8, 1999

cc: Mr. Brian Coats, Engineer
Application and Petition Unit
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
By Fax on December 8, 1999 before the deadline time
Also by first class mail

Rancho San Carlos Partnership
c/o Camp Dresser & McKee, Inc.
c/o Mr. Craig Von Bargen
100 Pringle Avenue, Suite 300
Walnut Creek, CA 94596
By First Class Mail

Mr. Jim Bybee, Supervisor
U.S. National Marine Fisheries Service
777 Sonoma Avenue, Room 325
Santa Rosa, CA 95404
By Fax on December 8, 1999
Also By First Class Mail

Mr. Clive Sanders, Agent
Dr. Roy Thomas, President
Carmel River Steelhead Association
P.O. Box 1183
Monterey, CA 93940
By E-Mail

Mr. Jim Crenshaw, President
CSPA Board Members and Consultants
1248 East Oak Avenue, Suite D
Woodland, CA 95695
By E- Mail

Interested Parties (Statewide By E-Mail)