Katherine Mrowka March 14, 1994
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Proposed Salinas Reservoir Expansion Project; Draft Environmental Impact Report; City of San Luis Obispo; Petitioner and Permittee; Petition for Extension of Time; WR Permit 5882 (Application 10216) and WR Permit 11390 11390 (Application 17114); Comments by California Sportfishing Protection Alliance, Protestant.
Dear Ms. Mrowka:
On March 25, 1991 the California Sportfishing Protection Alliance (CSPA) filed a protest with the Division of Water Rights on a petition for extension of time by the City of San Luis Obispo (City). Said petition was an extension of time to put the water under Permit 5882 to beneficial use. The City has decided after over fifty (50) years to attempt to put the water to beneficial use in conflict with other beneficial uses and construct the proposed Salinas River Reservoir Expansion Project.
Recently I requested a copy of the Draft EIR from the City for the proposed Salinas River Reservoir Expansion Project. The deadline date for submitting comments to the Draft EIR was on January 3, 1994. Unfortunately the City did not forward a timely copy of the draft EIR to the CSPA so that the CSPA, protestant, had the opportunity to comment on the adequacy of the Draft CEQA document. [See Agencies and Sources Consulted; Section 8.0; page 8-1; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.] (Emphasis Added)
Consequently, the CSPA is providing the Division of Water Rights with our comments to the Draft EIR at this time. In the event the Division finds the Draft EIR inadequate, the City should have to prepare a supplemental EIR for the proposed project.
We find the Draft EIR deficient and in violation of state law for the following reasons:
1. " The Salinas River system drains a large basin in the northern interior of San Luis Obispo County. The Salinas River drains the largest single watershed in the Central Coast area and flows northward into Monterey County and discharges into Monterey Bay (DWR, 1991). Salinas Dam was constructed by the U.S. Army Corps of Engineers on the Salinas River during 1941 and 1942 as a water supply reservoir for Camp San Luis Obispo. Currently, the dam is operated by the San Luis Obispo County Flood Control and Water Conservation District as a water supply source for the City of San Luis Obispo. " [See page 3-43; Under Water Resources/Quality; Section 3.4.1.1; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
2. The environmental condition and numerous problems of the Salinas River is far different than painted by the City in the Draft EIR.
" The Salinas River is the Central Coast region's largest river, flowing through the longest intermountain valley in the state. It originates in the mountains to the east of City of San Luis Obispo and flows 170 miles northward to Monterey Bay, largely paralleling U.S. Highway 101. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
" The Salinas has been called the "upside-down river" because it flows north and, for much of its length, underground (Fisher, 1945, referenced in U.S. National Park Service, 1992). It is one of the largest "submerged" rivers in the U.S. (California Coastal Commission, 1987), flowing through extremely porous substrates underlying the bed and flood plain. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
" Headwaters of the Salinas are dammed at Santa Margarita Reservoir [Salinas Dam and Reservoir] to provide water for the City of San Luis Obispo. Coming out of the hills, the river meanders through valley lands around Atascedero and Paso Robles in San Luis Obispo County. In Monterey County, for the final half of its length, the river main stem passes through the Salinas Valley, one of the state's richest farming regions. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
" Near the county line, the Salinas receives waters from major tributary rivers, the Nacimiento and San Antonio, which are also dammed. The dams on the Nacimiento and San Antonio rivers were build and are operated by Monterey County water supply interests. They are used primarily for recharging groundwater in the Salinas Valley, where wells are the source of water for farms and urban use in the city of Salinas. Stored water is released from the dams to flow down the river for percolation into the ground. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 149]
o In 1959, the San Luis Obispo County Flood Control and Water District (District) executed an agreement entitling the District to 17,500 acre-feet of water supply per year from Nacimiento Reservoir. The approximate maximum storage capacity of Nacimiento Reservoir is 350,000 acre-feet. The District has not constructed a pipeline to convey the 17,500 acre-feet of water and put this amount of water to beneficial use to various communities. To date the District has utilized only a small portion of this water and 1,300 acre-feet of this water per year is reserved for use in the immediate vicinity of Nacimiento Reservoir. The balance of this water (16,200 acre-feet) has been held for recreation purposes in the reservoir. [See page 3-246; Under Nacimiento Reservoir Water Supply Project; Section 3.16.2.7; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o The Draft EIR did not disclose whether the State Water Board approved the District's use of 16,200 acre-feet of water for recreational purposes in Nacimiento Reservoir. It appears to the CSPA that the District is using recreation as the beneficial use of said water so that it will not lose the rights to the water. [See Section 1675 of the California Water Code] Looking at all the problems in the Salinas River, it appears to the CSPA that using the 16,200 acre-feet of water for recreation at the reservoir is the unreasonable use of the state's water considering the poor condition of the river. The 16,200 acre-feet of water only represents about 5% of the reservoir at full capacity. We believe that a 5% decrease in reservoir levels would not have an adverse impact on recreation at the reservoir.
o Given the poor condition of the Salinas River as we will explain, the State Water Board should require that the 16,200 acre-feet of water is released from Nacimiento Reservoir and put to full beneficial use to: prevent salt water intrusion in the Salinas Valley; recharge the groundwater in the Salinas Valley; provide freshwater and environmental protection for the Salinas Lagoon; help improve flow conditions in the Salinas River to protect and restore the southern steelhead trout and tidewater goby; and help improve water quality. It appears to the CSPA that putting the 16,200 acre-feet of water to improve conditions in the Salinas River is putting that water to full beneficial use as required by Section 100 of the California Water Code. (My Emphasis)
" Releases are made from Nacimiento Reservoir to protect downstream fish and wildlife resources in accordance with an agreement with the Department of Fish and Game - under normal conditions, the minimum release rate is 25 cfs. " [See page 3-246; Under Nacimiento Reservoir Water Supply Project; Section 3.16.2.7; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o The Draft EIR provides a list of water rights along the Salinas River between the Salinas Dam and the Pacific Ocean. [See pages 3-54, 3-55 and 3-56; Under Table 3.4-4; Water Rights Along Salinas River Between Salinas Dam and Pacific Ocean; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o The Draft EIR did not disclose the amount of water released or bypassed by each water right holder to protect the public trust fishery resources of the Salinas River below the points of storage and diversion.
" The Salinas Valley in Monterey County is faced with a number of water problems including: widespread groundwater overdraft and inadequate water supply for recharge; seawater intrusion into aquifers near the coast caused by groundwater depletion; surface and ground water quality problems from nutrient enrichment and pesticides; and flooding. The Monterey County Water Resources Agency (MCWRA formerly the Monterey County Flood Control and Water Conservation District) has embarked on a major planning effort to solve problems relating to flood control, water supply and environmental protection. This program, the Salinas River Basin Water Resources Management Plan Study, involves the inventory of natural and socio-economic conditions; review of watershed, river and groundwater management; and study of water supply and demand (Source: various editions of the Water Resources Quarterly, Newsletter for the Salinas River Basin Water Resources Management Planning Project). " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; pages 149 and 150]
o The Draft EIR did not evaluate the cumulative impacts to seawater intrusion in the Salinas Valley resulting from the proposed project during different water year types.
o The Draft EIR did not evaluate the cumulative impacts to groundwater recharge in the Salinas Valley and the resulting cumulative impacts to the farming community in the Salinas Valley from the proposed project during different water year types.
o The Draft EIR did not disclose the Salinas River Basin Water Resources Management Plan Study and Planning Project, nor did it evaluate the cumulative effects to said program and project resulting from reduced flows caused by the proposed project.
" Although pesticides are widely used on farms in the Salinas Valley, current practices are not as significant a water quality problem as is residue from pesticides used in the past. Poisons which are now banned, such as Dielddrin and DDT, still persist in high concentrations in the soil and can enter the Salinas River through the natural processes of runoff and drainage, and through agricultural land practices. The Association of Monterey Bay Area Governments, with partial funding by USEPA, has undertaken a pilot project to assess the problem and recommend Best Management Practices to reduce pesticide migration from soil to river (Kleinfelder, Inc. 1992). " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 150]
o The Draft EIR did not disclose the efforts of the USEPA and the Monterey Bay Area Governments to assess water quality problems in the Salinas Valley. The Draft EIR did not evaluate the cumulative impacts to reduced flows in the Salinas River from the proposed project and the resulting effects to water quality from residue from pesticides used in the past entering the river during project caused reduced flow periods.
" At the ocean, the Salinas River historically was blocked, except at unusually high flows, by a strip of coastal dunes and turned north to flow past Moss Landing into Elkhorn Slough. The extensive salt marches in the area gave the Salinas River its name. Around the turn of the century, land near the coast was diked and drained for agriculture and a new mouth was created straight through the barrier dune system, leaving a only a narrow channel to Moss Landing called the Old Salinas River. However, the new 'mouth" of the Salinas River is still frequently blocked at the dunes at low flows, creating a lagoon. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 150]
" The Salinas Lagoon area is rich in fish and wildlife values including wetlands, dunes, riparian vegetation and estuarine aquatic habitats. The California Department of Parks and Recreation and the U.S. Fish and Wildlife Service both have land holdings in the lagoon and beach area. With high flows in winter, the dunes are breached, which opens the river mouth and drains the lagoon. Under certain conditions flows are high enough to cause the lagoon to back up and flood adjacent farm lands but not high enough to open the lagoon. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; pages 150 and 151]
o The Draft EIR did not disclose the public trust land holding of the California Department of Parks and Recreation and the U.S. Fish and Wildlife Service at the Salinas River Lagoon. The Draft EIR did not evaluate the cumulative impacts to said land holding and wetlands, riparian vegetation and estuarine aquatic habitats from reduced flows as a result of the proposed project.
" The MCWRA has assembled the Salinas River Lagoon Task Force to address the special problems of lagoon water management for flood control and habitat protection and restoration. The group is made up of federal, state and local agencies, and other private parties and organizations. In 1993, the Salinas River Management and Enhancement Plan (prepared for the task force by a team of consultants) was released which recommends measures to address flooding and biotic resources. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 151]
o The Draft EIR did not disclose the Salinas River Management and Enhancement Plan. The Draft EIR did not evaluate the cumulative impacts to the lagoon water management measures and the Salinas River Management and Enhancement Plan, including the cumulative impacts to habitat protection and restoration from reduced amounts of freshwater entering the lagoon as a result of the proposed project.
" In San Luis Obispo County, the upriver end of the Salinas River has long been used as a source of water for agriculture and pasture, and as an unofficial recreation site for hiking, horseback riding, and wildlife enjoyment. In recent years, the area's population has increased, leading to heavier and heavier use of the river. Trespass and vandalism problems are rampant, and local people are concerned about damage to habitats and property, and degradation of water supply and quality with increased development. Citizens have initiated a planning and problem-solving program, using the model of the Coordinated Resource Management and Planning (CRMP) process. Government agencies such as the County Parks Department and the Rivers and Trail Conservation Assistance Program of the National Park Service are assisting the effort (U.S. National Park Service, 1992). Comprehensive river planning in a community in transition from rural to more populated will be difficult, but it is important for all competing interests along the river. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; page 151]
o The Draft EIR did not disclose the Coordinated Resource Management and Planning (CRMP) process in San Luis Obispo County. The Draft EIR did not evaluate the direct and cumulative impacts to the proposed comprehensive river planning by CRMP as a result of the proposed project.
" Thus, the long Salinas River is finally the focus of comprehensive management in both counties through which it flows. In the future, the river will no longer be treated merely as a water supply or a flood control threat, but a renewable resource which needs to be managed for protection in perpetuity. Values of the river other than water supply--such as fish and wildlife habitat and public recreation--will be part of long term management goals. " [See California's Rivers; A Public Trust Report; Prepared for the California State Lands Commission; 1993; Regional Perspectives; Central Coast Region; pages 151 and 152]
o The State Water Board needs to develop a comprehensive long term management plan which balances the competing use before it approves the City expansion project.
2. The Salinas River sustained a significant run of southern steelhead trout. Recently in 1992 one (1) steelhead trout was observed in a tributary to the Salinas River by the Department of Fish and Game. [See page 3-158; Under Steelhead Trout; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o From a significant run of steelhead trout, that public trust resource has decline to one (1) fish. We find it hard to believe that the State of California has allowed this species of fish to be nearly extinguished in the Salinas River. Fish need water to survive and a comprehensive management plan for the river would be the tool to fix the fishery and water management problems.
" The steelhead trout is regulated as a State Species of Special Concern and a Federal (BLM and USFS) sensitive species. Steelhead are anadromous rainbow trout that return from the ocean to spawn in freshwater streams. Historically, steelhead that entered the Salinas River and its tributaries were "winter" steelhead and were common between February and May. The historic range and capacity for natural propagation, especially in central and southern California, is rapidly diminishing (Snider, 1983). Formerly abundant in the Salinas River, steelhead are now very uncommon and most of the Salinas River drainage in San Luis Obispo County has been considered to be marginal trout habitat for many years (Barclay, 1975). In general, the streams of the Upper Salinas River are now warm-water streams, supporting many introduced fishes. Salinas Dam has prevented any upstream passage beyond the dam since 1941-1942 when it was constructed. Furthermore, extensive portions of the lower 10 to 50 miles of the Salinas River above Monterey Bay frequently remain dry, with flows from the tributaries infiltrating into the river bed/channel underflow (Pelgen and Fisk, 1955; Worcester, 1991). A steelhead trout was reportedly observed with a tributary to the Salinas River by a CDFG biologist in the winter of 1992 (Worcester, 1993. " [See page 3-158; Under Steelhead Trout; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o To mitigate for the loss to the pre-project fishery and aquatic resources of the Salinas River below the Salinas Dam, the City has not recommended daily minimum streamflow requirements to be maintained at all times from Salinas Dam into the Salinas River to protect fishery resources and aquatic species and their habitat below the dam and in the downstream areas. [See pages 3-167 to 3-168; Under Mitigation Measures (3.7.3.); Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.] (My Emphasis)
o Restoration of the southern steelhead trout of the Salinas River will require that all dam owners, including the City, release sufficient amounts of water below all dams at all times to keep the steelhead in good condition (all life stages).
o Under mitigation measures the City claims that " Measures to mitigate potential project related effects on downstream flows are not considered to be feasible since they conflict directly with the purpose of the proposed project. " [See page 3-168; Under Mitigation Measures (3.7.3.); Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.] (Emphasis Added)
We disagree with the City's conclusion that downstream flows are not considered feasible since they conflict with the purpose of the project. State law requires the City to release water at all times from Salinas Dam to protect the public trust fishery resources below the dam and in the downstream areas. Consequently the City is recommending that state law be violated for self serving reasons.
Also under mitigation measures the City claims that:
" Additionally, the effectiveness of such measures (e.g., releasing more water downstream would depend on the actions of other downstream water users who may appropriate the water prior to it reaching the area of concern (e.g. , tidewater goby and/or steelhead trout near Monterey Bay). Any strategy to enhance (sic-restore) habitat values for the tidewater goby and/or the steelhead trout would require participation by a majority of downstream surface water and groundwater (and underflow) users to be effective ". [See page 3-168; Under Mitigation Measures (3.7.3.); Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o The State Water Board has the authority and the duty to modify existing water right permits on the Salinas River and enforce state law to protect the public trust fishery resources affected by all water users. In the event diverters divert water reserved for fish, the State Water Board has the authority to take actions under Section 1831 et seq. of the California Water Code.
In the Draft EIR, the City addresses federal and state laws applicable to the proposed project. [See pages 3-99, 3-105 and 3-112; Under Applicable Laws, Regulations, and Policies (3.5.1.2.); Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
The Draft EIR failed to include and address California Fish and Game Code 5737. Fish and Game Code 5937 requires all dam owners to release sufficient water at all times to keep fish below the dam in good condition. The Draft EIR is deficient for failing to address and comply with Fish and Game Code 5937, and failing to include recommended flows from the Salinas Dam to protect and restore the fishery and aquatic resources below the dam and in the downstream areas.
o The State Water Board violated Fish and Game Code 5937 when it approved the water right permit to the City for the Salinas Dam and Reservoir because the Board did not require the City, including the federal project owner (U.S. Army Corps of Engineers), to release sufficient water at all times to keep the fishery and aquatic resources in good condition below the dam and in the downstream areas. The State Water Board also violated state law when it failed to order sufficient mandatory flows at all times in the Salinas River from major dams and diversions to protect the southern steelhead trout and tidewater goby species, and other fish species.
o The Draft EIR did not disclose an inventory of the site-specific fish and aquatic species (all life stages) in the Salinas River below the Salinas Dam and in the downstream areas. Rainbow and Brown trout may exist in the stream reach below the Salinas Dam. Without this site-specific information and data the Draft EIR could not evaluate the direct and cumulative impacts to the fish and aquatic species in the river below the dam affected by the proposed project.
So that the City understands the law that protects the public trust fishery resources of the Salinas River, including the southern steelhead trout and tidewater goby species, the following clearly shows the Draft EIR is deficient and is in violation of state law when the City failed to recommend daily mandatory flow recommendations from the Salinas Dam.
California Fish and Game Code 5937 - Water for Fish
There has been a long history of concern for California's fishery resources. The California Legislature in 1852 enacted a statute designed to protect migrating steelhead trout and salmon on their spawning runs by outlawing obstructions in any river or stream as a public nuisance. The law is that "the running water of the State of California are public property. One who obstructs them obstructs them under license or permission from the state, but only upon such conditions as to their use as the state may impose" [See Schaezlien v. Cabaniss (135 Cal 466, 470, 67 Pac Rpt. 755, 757-1902)] The State can impose conditions upon owners of a dam or other structure as it sees fit to permit the free running of water or migration of fish up or down a stream.
In 1870 the California Legislature enacted Penal Code 637 which required " as far as practicable" fishways over obstructions in the State's rivers and streams. The court ruled that Taylor's dam on Papermill Creek violated Penal Code 637 by failing to keep the fishway in repair to allow fish to move upstream [See Taylor v. Hughes (62 Cal 32 1882)]
In 1915 another statute was enacted requiring continuous water release from dams through fishways for the purpose of keeping fish below such dams in "good condition". In 1937, what is now California Fish and Game Code 5937 was enacted by the California Legislature. Fish and Game Code 5937 states that the owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. [See Use it or Lose It - Fish and Game Code 5937; Law Review Article; Joel Baiocchi; U.C. Davis, 1980]
The State Water Board was challenged in the courts over not enforcing Fish and Game Code 5937 involving the construction of four (4) dams on tributaries to Mono Lake and the diversion of their entire flow by the Los Angeles Department of Water and Power for municipal and industrial water supply and hydropower uses. There were no instream flow provisions incorporated into water right permits issued by the State Water Board to keep trout alive and in "good condition" in streams below the dams. [See California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]
The Appellate Court's findings in California Trout v. State Water Resources Control Board supported the concept that trust properties, such as fish, have a unique status. The title to the fish property in State waters is vested in the State and held in trust for the people.
Other important points of the decision include:
o Fish and Game Section 5937 mandates that the owner of any dam shall allow sufficient water at all times to pass through a fishway or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. (Emphasis Added)
o Limits the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure the continued existence in good condition of fish life below the dam. (Emphasis Added)
o Compliance with Fish and Game Code 5937 was not negated by the agreement to build a trout hatchery.
o The public trust interest as to a fishery in a non-navigable stream is in the nature of a state property interest.
o There are a variety of public trust interests in addition to fish and the fishery that pertain to non-navigable streams.
o Water right permit actions or the failure to take action is not time barred. The nature of the State's property interest in both fish and water is such that one may not oust the State's property or trusts interests by a statute of limitation. " The public is not to lose its rights through the negligence of its agents, nor because it has not chosen to resist an encroachment by one of its own number, whose duty it was, as much as that of every other citizen, to protect the state in its rights." [See People v. Kerber (1908) (152 Cal. 731, 732, 736, 93 P. 878) in California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]
o If a nuisance is an ongoing conduct that can be discontinued by an order to stop such acts, the nuisance is viewed as continuing and hence abatable. There are no statute of limitations that permit such acts to continue.
o The licenses to appropriate water must be conditioned by the State Water Board mandating that the dam owner allow sufficient flow of water to pass downstream of the dam to keep the fish alive and in good condition.
The Appellate Court also found that Fish and Game Code 5937 are expressions of both the California Constitution and the California Legislature for protecting the value of the State's instream waters as an ecosystem and the fishery resources that utilize that ecosystem. The effect of that provision is to limit the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure that fishlife below the dam are maintained in "good condition". (Emphasis Added)
The criteria "in good condition" is not defined in Fish and Game Section 5937. However, "in good condition" must include the conservation and protection of the biological, physical, and chemical aspects of the aquatic environment that are necessary to support self-maintaining or renewable fish populations, associated ecological values and other beneficial and public trust uses of the Salinas River.
3. The tidewater goby is regulated as a California Species of Special Concern and as a Federal Category 1 species. The Salinas River lagoon sustains tidewater goby. The tidewater goby depends upon good quality freshwater inflows to survive and reproduce in lagoon and estuarine habitats and are especially sensitive to decreased freshwater inflows during the winter and early spring. [See page 3-158; Under Tidewater Goby; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o Fish and Game Code 5937 applies to the tidewater goby. The proposed project will reduce flows and effect the quality and quantity of freshwater flowing into the Salinas River lagoon. The Live Stream Agreement only provides water for downstream water users, but the proposed project has the potential to reduce freshwater flowing into the Salinas Lagoon and adversely affect tidewater goby and other environmental values of the lagoon.
4. A new supplemental EIR should be required by the State Water Board which evaluates whether the proposed project in conjunction with other major water projects will affect the amount of freshwater flowing into the Salinas River Lagoon and whether reduced fresh water from the proposed project will cause cumulative impacts to southern steelhead trout, tidewater goby species and their habitat, and other environmental values in the lagoon.
o The City should be required by the State Water Board to conduct IFIM fishery studies to determine the amount of water necessary to comply with Fish and Game Code 5937 to protect all fish species in the Salinas River below the dam and in the downstream areas. IFIM studies are not uncommon. In fact IFIM studies are required to be prepared by water right applicants when proposed major water projects will affect fishery resources.
o A water temperature study should be conduct by the City to determine the amount of cold water available in the Salinas Reservoir and the specific water temperature requirements necessary to sustain and restore the downstream cold water fish and aquatic species below the dam and in the downstream areas. The results of said fishery studies with recommended fisheries flow recommendations should be included in the supplemental EIR.
o Where is the location of the valve on the dam which releases water into the Salinas River when releases are made to satisfy the Live Stream Agreement? Is the San Luis Obispo Flood Control and Water Conservation District releasing "hot water" from the surface or cold water from the bottom of the reservoir?
o What species of fish are located in Salinas Reservoir? Have some of those fish species been released into the Salinas River from the release valve at the dam?
5. The Draft EIR considered a range of alternatives, but did not consider a Conjunctive Water Alternative which provides water for the City, water for downstream water users (Live Stream Agreement), and water for the public trust fishery resources below the dam.
The State Water Board should require a new supplemental EIR which includes the Conjunctive Water Alternative as shown above. This alternative should include a water conservation program and further discussion and analysis of a desalination project by the City.
6. The Draft EIR makes the following statement: " Historically, steelhead that entered the Salinas River and its tributaries were "winter" steelhead and were common between February and May. The historic range and capacity for natural propagation, especially in central and southern California, is rapidly diminishing (Snider, 1983). Formerly abundant in the Salinas River, steelhead are now very uncommon and most of the Salinas River drainage in San Luis Obispo County has been considered to be marginal trout habitat for many years (Barclay, 1975). In general, the streams of the Upper Salinas River are now warm-water streams, supporting many introduced fishes. Salinas Dam has prevented any upstream passage beyond the dam since 1941-1942 when it was constructed. Furthermore, extensive portions of the lower 10 to 50 miles of the Salinas River above Monterey Bay frequently remain dry, with flows from the tributaries infiltrating into the river bed/channel underflow (Pelgen and Fisk, 1955; Worcester, 1991). [See page 3-158; Under Steelhead Trout; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o The City's statement spells out many environmental problems associated with the southern steelhead trout and resident trout, but the City did not establish the cumulative reasons and effects why the public trust steelhead trout fishery was nearly extinguished, and why the Salinas River is marginal trout waters. The Salinas Dam and other major downstream water projects and diversions have had cumulative impacts to the quantity of water flowing down the river. Reduced flow reduces trout habitat and increases water temperatures. The Draft EIR did not evaluate the cumulative impacts to southern steelhead trout, resident trout, and the entire ecosystem of the Salinas River resulting from: the existing operation of the Salinas Dam and Reservoir; the proposed operation of Salinas Dam and Reservoir under the expansion project; and downstream major water dams and diversions. Section 15130 of the CEQA guidelines requires that cumulative impacts are evaluated in an EIR.
o We believe the Draft EIR is deficient and violated Section 15130 of the CEQA guidelines for failing to evaluate the cumulative impacts to the public trust fishery resources. We have spelled out a number of cumulative impacts which were not evaluated in the Draft EIR.
o A Cumulative Impact Analysis of the Salinas River Ecosystem should be included in a new supplemental EIR. The State Water Board and its staff need to know the condition of the Salinas River ecosystem (all species) before it decides whether or not to approve the City's petition because the Salinas River may be fully appropriated because of the condition of the ecosystem.
7. The City and other major water projects should be required by the State Water Project to fund a Southern Steelhead Management Plan for the Salinas River. The Department of Fish and Game has submitted to the State Water Board two (2) fishery management plans. Those management plans are for the lower Yuba River and the lower Mokelumne River. The Department of Fish and Game is working with water users on the Santa Ynez River to develop a southern steelhead management plan. The public trust southern steelhead trout, tidewater goby and the ecosystem of the Salinas River should not be treated differently by the State Water Board and the Department of Fish and Game.
Pursuant to Section 10003 of Division 10 of the Public Resources Code, the State Water Board should obtain comments and flow recommendations from the Department of Fish and Game to protect and restore fishery resources below the dam and in the downstream areas of the Salinas River as a result of the existing Salinas Dam Project, proposed expansion project, and other major dams and diversions.
8. The City made the following statement in the Draft EIR:
" The City of San Luis Obispo filed a water rights application (Number 10216) on June 4, 1941, and received Water Rights Permit Number 5882 for 45,000 acre-feet of storage per year in Salinas Reservoir and up to 12.4 cfs of direct diversion. Due to the size of the existing reservoir, the City has not been able to exercise their full storage entitlement. The pipeline system from the reservoir to the City's Stenner Canyon Water Treatment Plant has a maximum annual conveyance capacity of about 9,410 AF, which also limits the amount of water the City can divert. The original reservoir was designed to include an operable spillway gate, but due to structural concerns, the spillway gate was never installed. The original usable storage capacity of Salinas Reservoir below the spillway crest was estimated at 25,800 AF at the time of construction. Subsequent sedimentation has reduced the reservoir capacity to an estimated 23,843 AF as of 1992. " [See page 3-44; Under Water Resources; Introduction; Draft Environmental Impact Report; Proposed Salinas Reservoir Expansion Project; November, 1993; City of San Luis Obispo.]
o The Salinas Reservoir has lost about 2,000 acre-feet of water from sedimentation. Over time more storage capacity will be lost with or without the project. The Draft EIR did not recommend that the City and/or the San Luis Obispo Flood Control and Water Conservation District dredge the reservoir to recover the lost storage. The Draft EIR did not disclose the land use activities which have caused the silting of the reservoir. The Draft EIR is deficient for failing to evaluate the land use activities which have caused the silting of the reservoir, and the measures to prevent further silting of the reservoir.
o Section 100 of the California Water Code requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable. [See Section 100, California Water Code]
Section 1241 of the California Water Code states as follows:
" When the person entitled to the use of water fails to use beneficially all or any part of the water claimed by him, for which a right of use has been vested, for the purpose for which it was appropriated or adjudicated, for a period of five years, such unused water may revert to the public and shall, if reverted, be regarded as unappropriated public water. Such reversion shall occur upon a finding by the board following notice to the permittee and a public hearing if requested by the permittee. " [See Section 1241; Article 4; Beneficial Use; California Water Code]
Section 1243 of the California Water Code states in part as follows:
" The use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water. In determining the amount of water available for appropriation for other beneficial uses, the board shall take into account, whenever it is in the public interest, the amount of water required for recreation and the preservation and enhancement of fish and wildlife resources." [See Section 1243 of the California Water Code]
o For a period of over 50 years the City has not put the water to full beneficial use that it is entitled to under Permit 5882. The State Water Board has the authority to have the water not put to beneficial use to revert back to the public. The approval of petitions for extension of time for Permit 5882 by the Board and and its staff for over a fifty year period to put the water to full beneficial use was clearly unreasonable. Because the City has only beneficially used part of the water under Permit 5882, this clearly shows there is sufficient water available not being put to beneficial use which can be put to beneficial use to help protect, preserve, enhance and restore the public trust fishery resources and ecosystem of the Salinas River.
9. Throughout this letter of comments we have used "public trust steelhead trout, tidewater goby species and other fishery resources. So that the City understands the State Water Board has a duty to protect and restore the public trust resources of the Salinas River, we provide the following explanation:
The Public Trust
The State Water Board has a duty to protect public trust resources when administrating water rights, and, in situations where damage has already been done by water users, to reallocate water to preserve the trust. It is the latter duty which the Board must perform for the Salinas River.
The State Water Board has the continuing authority over all water rights under the common law public trust doctrine to protect public trust resources. [See National Audubon Society v. Superior Court of Alpine County (1983) 33 Cal.3d. 419, 189 Cal. Rptr. 346.]
The public ownership of the State's waters and water courses has its roots in Roman Law of the 6th Century A.D. The public ownership of fish and wildlife also has its roots in ancient Roman Law from the 6th Century A,D. [See Althaus 1987] This fish and wildlife (includes shellfish, birds, mammals, and other classes of wild animals) in their natural state can be regarded as property belonging to the people, with governmental agencies such as the State Water Board and the Department of Fish and Game as trustees.
The California Supreme Court in its Mono Lake Decision [National Audubon Society v. Department of Water and Power, City of Los Angeles (33 Cal.3d 419,658 P.2d 709-1983) reiterated and clarified some of its past rulings regarding public trust properties, uses and values. The Court further emphasized the State's overall duties and responsibilities to protect the people's common heritage of streams, lakes, marshlands and tidelands for the many uses covered by the public trust.
In this 1983 ruling, the California Supreme Court also stated:
o Parties acquiring rights in trust property (in this case water), hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.
o The public trust is more than an affirmation of the State power to use public property for public purposes, it is the duty to take public trust properties (fish, wildlife and water quality) into account in the planning and allocation of water and to avoid or minimize any harm to these properties, interests or associated uses whenever feasible.
o The State, under its public trust responsibilities, has the affirmation of the duty and continuing authority to vigorously protect the public trust uses and to avoid or minimize harmful impacts to such uses.
o The public trust is more than an affirmation of the state's power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.
o The Public Trust doctrine protects navigable waters from harm caused by diversion of non-navigable tributaries.
o The State can reconsider previous water allocations at any time under its continuous authority.
o The public trust includes the protection of ecological and biological values of water and waterways.
o Any member of the general public has standing to raise a claim of harm to the public trust. (Emphasis Added) The CSPA believes the public trust southern steelhead trout, tidewater goby, and the ecosystem of the Salinas River has been harmed by Permit 5882 and the 16,200 acre-feet of water used for recreation at Nacimiento Reservoir and will continued to be harmed by the proposed project.
Conclusion
It is clear that the Draft EIR is deficient and in violation of state law. We are requesting the State Water Board and its staff to have the City prepare a new supplemental EIR which comply with state law and protects and restores the public trust fishery resources of the Salinas River.
It is also clear that the State Water Board should not approve the petition and the subject expansion project until a Salinas River Water Management and Ecosystem Plan is prepared to fix the many environmental and water supply problems affecting the Salinas River system. In conjunction with that plan the State Water Board should require a cumulative environmental impact analysis of the Salinas River system. Said plan and analysis should be funded by all water users on a prorated basis unless other funding is available.
We also believe the Department of Fish and Game needs to prepare a Salinas River Fisheries Management Plan. We also believe the U.S. Fish and Wildlife Service must get involved in the expansion project and the restoration of the river because Salinas Dam and Reservoir was constructed and is owned by a federal agency; and also because they have public trust land holdings near the Salinas River Lagoon.
Please advise me of the State Water Board and the Division of Water Rights' actions on the CSPA comments to the Draft EIR.
Respectfully Submitted
_______________________________________
Robert J. Baiocchi
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-283-3767 (Quincy CSPA Office) or 916-836-008 (Home Office) or 916-283-1007 (Law Office)
Fax: 916-283-5017
cc: Mark Del Piero, Member
State Water Resources Control Board
Wayne White, State Supervisor
U.S. Fish and Wildlife Service
Sacramento Office
John Sullivan, Deputy Director
c/o John Turner, Chief, Environmental Services
Department of Fish and Game
Steve Herrera
Environmental Unit
Division of Water Rights
State Water Resources Control Board
Jim Crenshaw, President
California Sportfishing Protection Alliance
Mike Jackson, Counsel
California Sportfishing Protection Alliance
Bill Jennings
California Sportfishing Protection Alliance
Tom Gregory
California Sportfishing Protection Alliance
General Manager
City of San Luis Obispo, Petitioner
990 Palm Street
San Luis Obispo, CA 93403
Interested Parties