Salinas SWRCB Mrowka July 1994

Members of the State Water Resources July 20, 1994

Control Board

P.O. Box 100

Sacramento, CA 95812-0100

Walt Pettit, Executive Director

State Water Resources Control Board

P.O. Box 100

Sacramento, CA 95812-0100

Re: Salinas River Expansion Project; City of San Luis Obispo; Water Right Permit 5882 (Permitted Application 10216) and Water Right Permit 11390 (Permitted Application 17114); Salinas River and Old Creek; San Luis Obispo County; Response by the California Sportfishing Protection Alliance to Allegations and Claims of Katherine Mrowka of the Division of Water Rights Regarding Letter of July 12, 1994 to the CSPA Response of May 11, 1994 and March 14, 1994. Letter of Comment and Legal Objection and Request for Relief by the California Sportfishing Protection Alliance.

Dear Chairman and Members of the State Water Resources Control Board and Executive Director Walt Pettit:

This letter of comment and legal objection is being submitted to you requesting relief from the abuses of discretion by the staff of the Division of Water Rights concerning the above mentioned matter which is before the Board and the Division of Water Rights at this time.

This is in response to a letter directed to Bob Baiocchi, representing the California Sportfishing Protection Alliance (hereinafter known as "CSPA") from Katherine Mrowka, Associate WRC Engineer, Division of Water Rights, dated July 12, 1994. We are providing all of you with a copy of the letter of July 12, 1994. We reference said letter to this letter of comment and legal objection. Please see attachment.

The Record

On March 25, 1991, the CSPA filed a protest with the Division of Water Rights on petitions for extension of time by the City of San Luis Obispo. Said petitions requested an extension of time time to put the water allocated under Permits 5882 and 11390 to beneficial use. The CSPA protest was accepted by the Division of Water Rights. We reference said protest to this letter of comment and legal objection.

On March 14, 1994, the CSPA, protestant, filed a written detailed response to Katherine Mrowka of the Division of Water Rights. The purpose of the CSPA's detailed response was to point out among other matters that the City of San Luis Obispo's Draft EIR for the proposed Salinas Dam and Reservoir expansion project was deficient and not in compliance with California Environmental Quality Act and its Guidelines. We further point out that the CSPA's due process rights were violated by the City of San Luis Obispo because the City failed to provide a timely copy of said Draft EIR to Bob Baiocchi on behalf of the CSPA. Bob Baiocchi is a water right consultant for the CSPA and has the responsibility to deal with all water right matters before the Board. The deadline date for submitting comments to said Draft EIR was January 3, 1994. Bob Baiocchi received said Draft EIR in March, 1994, after repeated telephone calls to the offices of the City of San Luis Obispo. The staff of the Division of Water Rights was aware of the fact that the CSPA did not receive a timely copy of said Draft EIR.

We believe the City of San Luis Obispo has a duty under the California Environmental Quality Act and its Guidelines to provide a timely copy of the Draft EIR to the CSPA so that the CSPA could have filed timely comments on said Draft EIR. The City failed to do so, and consequently violated the CSPA's due process rights. In fact, the City of San Luis Obispo did not provide the CSPA, protestant, with a copy of the Notice of Preparation (NOP) so that the CSPA had the opportunity to submit scoping comments on what environmental issues should have been included in the Draft EIR. We are providing all of you with a copy of the CSPA letters of March 14, 1994 and May 11, 1994. We reference said CSPA letters to this letter of comment and legal objection. Please see attachment.

On March 25, 1994, the staff of the Division of Water Rights acknowledged and responded to the CSPA written response of March 14, 1994. The staff of the Division of Water Rights stated that " As lead agency, it is the City's responsibility to determine an appropriate response to your letter. The letter will be retained in the Division's records for consideration prior to any action upon the Petitions for Extension of Time which the City filed for the Salinas Dam Expansion Project under Permit 5882. " We reference the Division's letter of March 25, 1994, to this letter of comment and legal objection.

On May 2, 1994, Scott Slater of Hatch and Parent on behalf of the City of San Luis Obispo, submitted a letter of comment to the staff of the Division of Water Rights concerning the CSPA response of March 14, 1994 concerning among other matters said Draft EIR. Slater stated that " Because the CSPA comments were filed well beyond the deadline, the City is excused from having to respond to them in the final EIR ". However, in the spirit of good faith and full disclosure, the City is herein providing written responses to the CSPA comments for the State Water Resources Control Board's review. " (Emphasis Added) We reference the letter of May 2, 1994, from the City to the staff of the Division of Water Rights.

We believe the City is not excused from including the CSPA comments in the Final EIR for said project, and that the City is not exempted from complying with the provisions of the California Environmental Quality Act and its Guidelines when commenting on the written response of the CSPA, protestant, to the adequacy of the Draft EIR. Counsel for the City is playing games with the CEQA process and the due process rights of the CSPA.

Then on July 12, 1994, came the response from the staff of the Division of Water Rights regarding the CSPA letters of March 14, 1994 and May 11, 1994, and the City's response of May 2, 1994.

The staff of the Division of Water Rights stated that " The first issue is a request that the permittee be required to prepare a CEQA document for the proposed project. A draft Environmental Impact Report was circulated for public comment during November, 1993. This protest issue is dismissed. " (Emphasis Added)

We provided extensive detailed comments and information to the staff of the Division of Water Rights that the City's Draft was deficient and not in compliance withe the California Environmental Quality Act and Its Guidelines. The staff of the Division of Water Rights does not have the authority to dismiss a protest issue concerning the adequacy of the Draft EIR by a protestant until the State Water Board has issued a Certificate of Review and Analysis which determines the Final EIR is in compliance with the California Environmental Quality Act and its Guidelines. And until such time that said Certificate and Analysis by the Board is not challenged in the courts for compliance with the California Environmental Quality Act and its Guidelines.

Also, the City of San Luis Obispo did not prepare a Draft EIR for the Petition for Extension of Time for Permit 11390 (Permitted Application 17114). The operation of the Whale Rock Reservoir under Permit 11390 (Permitted Application 17114) has had an adverse direct and cumulative impact to the southern steelhead resources of Old Creek. Because of that adverse impact to the public trust steelhead resources of Old Creek, the City is required by state law to prepare an Environmental Impact Report as required by the California Environmental Quality Act and its Guidelines.

The State Water Board has not adopted rules and regulations in carrying out the mandates of the California Environmental Quality Act and its Guidelines. Most certainly had the State Water Board adopted rules and regulations for the implementaion of CEQA and its guidelines, the Board would not have given a staff person of the Division of Water Rights the authority to "throw out" a protest issue based on the California Environmental Quality Act and its Guidelines.

Relied Requested by CSPA

We request the State Water Board to reinstate the CSPA protest issue on grounds that the Petitions of Extension of Time do not comply with the provision of the California Environmental Quality Act and its Guidelines as shown in this letter of comment and legal objection. We further request the State Water Board to require the City of San Luis Obispo to prepare an Environmental Impact Report for the Petition of Extension of Time for Permit 11390 (Permitted Application 17114). This request is being made by the CSPA because of adverse direct and cumulative impacts to the public trust steelhead resources of Old Creek which has resulted from the lack of mandatory flow conditions in Permit 11390 which did not protect the public trust steelhead resources in Old Creek below Whale Rock Reservoir.

Comments and Legal Objections by the CSPA

The following are further comments and legal objections of the CSPA regarding the allegations and claims made in the letter of July 12, 1994 by the staff of the Division of Water Rights:

Request for Hearing Denied By A Staff Person Of The Division of Water Rights Who Does Not Have The Authority To Dismiss Protest Issues and Dismiss A Request for Hearing by a Protestant

The CSPA response of March 14, 1994, was not a hollow meritless written response, but the CSPA response was a detailed and comprehensive written response making many valid points regarding the subject expansion project, the inadequacy of the Draft EIR wriiten for said project by the City of San Luis Obispo, the points and authority of law, and a request for hearing before the Board.

The staff of the Division of Water Rights in its letter of July 12, 1994, stated that, " Failure to respond within the next 30 days will be considered an abandonment of this protest issue, and it will be dismissed ".

Section 750, California Code of Regulations, Title 23; gives the State Water Board the authority to dismiss a protest and protest issues on abandonment grounds. Section 750 does not give the staff person of the Division of Water Rights the authority to dismiss a protest and protest issues on abandonment grounds. (My Emphasis) We refer you to Section 750.

The CSPA response of May 11, 1994, requested a hearing before the State Water Board for the Board to determine the adequacy of the Draft EIR and whether or not said Draft EIR reduces to less than significant the direct, indirect, and cumulative impacts to the public trust resources below Salinas Dam affected by the expansion project and the existing project. The staff of the Division of Water Rights takes the notion that the proposed project will not cause any adverse impacts to the public trust resources below the dam, and states that, " Thus, the CSPA protest regarding potential impacts below the dam is dismissed. " (My Emphasis)

We believe the staff of the Division of Rights does not have the authority to dismiss the CSPA protest issue regarding potential impacts upon the public trust resources below the dam because the State Water Board has that authority under Section 750, California Code of Regulations, Title 23 to dismiss said protest issue; --- and also because the staff person of the Division of Water Rights does not have the authority or discretion to violation Fish and Game Code 5937 and Section 782; California Code of Regulation; Title 23, and because under state law water is required to be released from Salinas Dam at all times to keep the public trust fishery resources in good condition at all times below the dam. (My Emphasis)

Consequently, the staff of the Division of Water Right violated Sections 750 and 782, California Code of Regulations, Title 23; and Fish and Game Code 5937, and violated the CSPA's due process right to have a hearing and to have the Board make the final decision on how the public trust resources of Old Creek and the Salinas River will be protected from the petitions for extension of time.

Relief Requested by CSPA

We are requesting the State Water Board to reinstate the CSPA protest issue regarding potential impacts to the public trust resources below the dam and in the downstream areas. We further request, upon full compliance with the provisions of the California Environmental Quality Act and its Guidelines for both petitions, the CSPA is requesting a hearing before the Board.

The Staff of the Division of Water Rights Abused Its Discretion and Violated the California Environmental Quality Act and Its Guidelines in its Response of July 12, 1994 to the CSPA

The staff of the Division of Water Rights alleges and claims that " it appears that the City complied with the notification requirements of CEQA" and that "we do not intend to take further action on this issue". "Thus, there is no basis to require comments from the City as suggested in your letter". We reference pages 1 and 2 of the response of July 12, 1994 from Kathrine Mrowka of the Division of Water Rights to the CSPA to this letter of comment and legal objection. (My Emphasis)

The staff person states "it appears" that the City complied with the notification requirements of CEQA. What does the staff person mean by " it appears". First the staff person states that it appears and then the staff person takes the position that "Thus, there is no basis to require comments from the City as suggested in your letter". It is clear the staff person is not certain that the City did comply with the CEQA notification requirements. The City did not!

The City did not give the CSPA, protestant, proper notification of the Draft EIR, as well as not providing the CSPA with a copy of the Notice of Preparation (NOP) for the Draft EIR. The CSPA cited CEQA case law regarding due process in CEQA proceedings. The Staff of the Division of Water Rights did not disclose and discuss the CSPA's due process rights and the CEQA cases cited by the CSPA. The staff of the Division of Water Rights simply stated, "Thus, there is no basis to require comments from the City as suggested in your letter". The staff of the Division of Water Rights violated and abused the due process rights of the CSPA, protestant.

Relied Requested by CSPA

The State Water Board must have the records changed showing the City of San Luis Obispo did not provide a timely copy of the Draft EIR and a copy of the NOP to the CSPA, protestant, for the subject expansion project. The records must also be changed to show that the CSPA challenged the City and the Board's staff that its due process rights were violated and abused. The State Water Board must issue a legal opinion to determine whether the CSPA due process were violated and abused by the City and by the Board's staff. This opinion must include the cases cited by the CSPA and must be made part of the record for said petitions and said CSPA protest.

By what legal points and authority of law does a staff person for the Division of Water Rights have the authority to prevent, obstruct and dismiss questions of law by a protestant concerning the implementation and enforcement of the California Environmental Quality Act and its Guidelines? We believe the staff of the Division of Water Rights does not have the authority and discretion to dismiss pertinent questions of law regarding legal questions raised by a protestant regarding the California Environmental Quality Act and its Guidelines and how that state law applies to the subject expansion project and the Draft EIR.

Relief Requested by CSPA

The State Water Board must have an attorney from the State Water Board staff determine whether or not the City's Draft EIR for the expansion project is in compliance with the California Environmental Quality Act and its Guidelines and other state laws, and whether or not the Final EIR responded properly to the issues raised by the CSPA in its letter of March 14, 1994.

Public Information Request - Public Resources Code

Disclose and provide the CSPA with the following information on this matter:

a) Disclose the name of the State Water Board attorney that reviewed the written response by Katherine Mrowka of July 12, 1994 regarding the adequacy of the City's Draft EIR and also the staff person's authority to dismiss protest issues without valid grounds.

b) Disclose and provise a copy of the State Water Board's attorney written legal opinion regarding the legal points raised by the CSPA in its response that challenged that the City's Draft EIR was not in compliance with CEQA and its Guidelines.

c) Disclose and provide the points and authority of law which gives a staff member of the Division of Water Rights the authority and discretion to dismiss pertinent legal questions of law regarding whether or not the Draft EIR is in compliance with CEQA and its Guidelines.

d) Disclose and provide the CSPA with documented information and data which shows the staff person of the Division of Water Rights is qualified as an expert in the implementation and enforcement of the California Environmental Quality Act and Its Guidelines.

e) Disclose and provide the CSPA with a copy of the rules and regulations adopted by the State Water Board for implementation of the California Environmental Quality Act and its Guidelines.

f) To date the CSPA, protestant, has not received a copy of the Final EIR for the subject expansion project from the City of San Luis Obispo. The State Water Board must take the necessary action to order or require that the City of San Luis Obispo disclose and forward to the CSPA, protestant, a timely copy of the Final EIR for said project.

In the event a timely copy was not forwarded to the CSPA by the City, the State Water Board must investigate the resasons why the CSPA due process rights were violated again by the City.

g) To date the CSPA, protestant, has not received a copy of the Notice of Determination for said Final EIR for the subject expansion project from the City of San Luis Obispo. The State Water Board must take the necessary action to order or require that the City of San Luis Obispo disclose and forward to the CSPA, protestant, a timely copy of the Notice of Determination for said Final EIR for said project.

In the event a timely copy of the Notice of Determination was not forwarded to the CSPA by the City, the State Water Board must investigate the reasons why the CSPA due process rights were violated again by the City.

h) Under the provisions of the California Environmental Quality Act and its Guidelines, the State Water Board is the "responsible agency" for the subject expansion project and the Petitions for Extension of Time for Permit 11390 and Permit 5882. Also, under the provisions of the California Environmental Quality Act and its Guidelines, the State Water Board is required to complete a valid "Certificate of Review" for the subject petitions, subject expansion project, and the subject Final EIR for said expansion project and the environmental document for the Petition for Extension of Time Under Permit 11390. Said "Certificate of Review" must contain a detailed analysis that that the subject Final EIR is in compliance with the provisions of the California Environmental Quality Act and its Guidelines. (My Emphasis)

The CSPA is requesting a timely copy of the "Certificate of Review" and a timely copy of the detailed analysis from the Board and its staff which shows that the subject Final EIR for the expansion project and the subject petitions are in compliance with the provisions of the California Environmental Quality Act and its Guidelines. Timely means on the date the "Certificate of Review" was signed so that the CSPA has the timely opportunity to challenge the Board's "Certificate of Review" and "Analysis" with the courts.

The Staff of the Division of Water Rights Failed to Comply With the Provisions of the California Water Code and the Provisions of the California Code of Regulations, Title 23; When The Staff Determined To Delay To Future Correspondence Whether or Not an Application for Water Right Must be Submitted by the City of San Luis Obispo For The Salinas Reservoir Expansion Project

In the staff's response of July 12, 1994, the following was stated:

" The facility [Salinas Reservoir] was originally constructed with a storage capacity of 45,000 acre-feet (af); however, due to seismic safety considerations, storage has historically been limited to approximately 23,000 af. " (Emphasis Added)

" The reservoir expansion project is the subject of a Petition for Extension of Time (petition) under Permit 5882 of the City. The petition was noticed on February 11, 1991 and was protested by CSPA. The protest discusses several issues. Although Permit 5882 was issued on October 9, 1941 and the permittee has had 49 years to make full beneficial use of water, the protest alleges that full beneficial use has not occurred and asks the Division to amend the permit and limit it to the amount of water which has been beneficially used. The protest concludes that a new application should be filed to cover the Salinas River enlargement project. This protest issue will be addressed in future correspondence. " (Emphasis Added)

The CSPA allegation that the permittee did not put the water under Permit 5882 to full beneficial use is true and is supported by the statement in the Division's letter of July 12, 1994. The staff of the Division of Water Rights stated that, " The facility [Salinas Reservoir] was originally constructed with a storage capacity of 45,000 acre-feet (af); however, due to seismic safety considerations, storage has historically been limited to approximately 23,000 af. " (My Emphasis)

Section 650, California Code of Regulation, Title 23; under Application for Water states that " Any person who wishes to appropriate water pursuant to Water Code Section 1202 shall file an application and comply with the provisions of this subchapter. " (Emphasis Added)

The City of San Luis Obispo proposes to store, divert, and use unappropriated water. For 49 years the City of San Luis Obispo has not put the water under Permit 5882 to full beneficial use. The City of San Luis Obispo has forfeited its right because it failed to put to beneficial use for a period far in excess of five (5) years the amount of water appropriated under Permit 5882. We reference Smith v. Hawkins (110 Cal. 122, 42 P. 527; 120 Cal. 86, 52 P. 139) and other applicable cases. (My Emphasis)

Section 1202 of the California Water Code states as follows:

" The following are hereby declared to constitute unappropriated water:

" Section 1202 (c) of the California Water Code " states as follows:

" All water appropriated pursuant to the Water Commission Act of this code which has ceased to be put to the useful or beneficial purpose for which it was appropriated, or which has been or may be or may have been appropriated and is not or has been in the process of being put, from the date of the initial date of the initial act of appropriation, to useful or beneficial purpose for which it was appropriated, with due diligence in proportion to the magnitude of the work necessary properly to utilize it it for the purpose of the appropriation. "

Section 844; California Code of Regulations; Title 23; states as follows:

" An extension of time within which to complete an application, to commence or complete construction work or apply water to full beneficial use will be granted only upon such conditions as the board's determines to be in the public interest and upon a showing to the board's satisfaction that due diligence has been exercised, that failure to comply with previous time requirements has been occasioned by obstacles which could not reasonably be avoided, and that satisfactory progress will be made if an extension of time is granted. "

Due diligence has not been exercised by the City of San Luis Obispo in putting to use the water permitted under Permit No. 5882 to full beneficial use. A forty nine (49) year delay by the City does not constitute that due diligence was exercised by the City.

The petition is not in the public interest because the City of San Luis Obispo has filed a petition and not a water right application to store, divert and use the unappropriated water of the Salinas River for the proposed expansion project.

To delay putting the permitted water to full beneficial use after a delay of 49 years is unreasonable and constitutes the forfeiture of said rights from nonuse.

The public trust fish and wildlife resources and other public trust resources of the Salinas River belong to the people of the State of California. The City does not have the authority or discretion to degrade or extinguish public trust resource assets. The Draft EIR for the expansion project provides no mitigation for the degradation of the public trust resources of the Salinas River below the dam, nor does the Draft EIR provide for protection measures for the public trust resources below the dam affected by the construction and operation of Salinas Dam and Reservoir.

It is clear the City of San Luis Obispo wishes to store and use unappropriated water, water which it failed to put to beneficial use over a 49 year period of time. We believe the City of San Luis Obispo filed a petition for extension of time to avoid and circumvent the water right application process because it wanted to exercise a right to all water appropriated under Permit 5882, a right it lost by not putting the water under Permit 5882 to full beneficial use. (My Emphasis)

The request by the CSPA to have the City of San Luis Obispo file a water right application is further supported by the following:

Water Right Application 29082 was filed by the California Department of Water Resources with the State Water Board on August 6, 1987. The CSPA protested that water right application. This water right application was similar to the Salinas Dam Expansion Project. The DWR proposed to increase storage in Lake Cachuma (Bradbury Dam) on the Santa Ynez River. The Division of Water Rights enforced the California Water Code properly by requiring a water right application be filed for the enlargement project at Lake Cachuma.

The Division of Water Rights abused its discretion and violated Sections 650 and 844, California Code of Regulations, Title 23; and California Water Code 1200 et seq. , when the Division approved the petition for extension of time and noticed said petition for the proposed Salinas Dam Expansion Project.

Relief Requested by CSPA

The State Water Board must require the City of San Luis Obispo to file an application for water right for the expansion of Salinas Dam and Reservoir because the City proposes to appropriate unappropriated water as shown above by the CSPA.

The Heart of the CSPA Protest

So that the State Water Board further understands the issue at hand and the CSPA protest, the following will show the heart of the CSPA protest and the need for the City of San Luis Obispo to file a water right application for the unappropriated water of the Salinas River Watershed:

The CSPA Protest requested that Section 5937 of the California Fish and Game Code be complied with, and that a mandatory environmental flow of water be released from Salinas Dam to protect the public trust resources of the Salinas River below the dam. This request is supported by Section 782; California Code of Regulations; Title 23. Permit 5882 does not contain a mandatory daily environmental flow of water to protect the public trust resources below the dam. There is unappropriated water available. The water for the public trust resources must come first, and then the Board will know how much water is available to be appropriated for the proposed expansion project.

The staff of the Division of Water Rights abused its discretion and violated state law when it stated without any legal authority that " This issue [environmental water for the downstream public trust resources] is related to the originally permitted project. Thus, the CSPA request to modify the existing permit condition is not a relevant protest issue for the time extension proceeding. If CSPA wishes to pursue this issue, it may do so through the complaint process. " (Emphasis Added)

The City of San Luis Obispo is proposing to store, divert, and use unappropriated water for the expansion of Salinas Dam and Reservoir. Permit 5882 does not contain a mandatory condition which requires mandatory daily environmental flow requirements to protect the downstream public trust resources below the dam. The Draft EIR prepared by the City of San Luis Obispo for the expansion project does not propose to release daily environmental flows to protect and restore the downstream public trust resources below the dam.

The staff of the Division of Water Rights violated Fish and Game Code 5937 and Section 782, California Code of Regulations, Title 23; when the staff dismissed the CSPA Protest request for mandatory daily environmental flows of water to protect and restore the public trust resources affected by Salinas Dam and Reservoir. The Draft EIR for the proposed enlargement project also violated Fish and Game Code 5937 and Section 782, California Code of Regulations, Title 23; when it also did not recommend as a condition to the subject project, mandatory daily environmental flow requirements from Salinas Dam. The City of San Luis Obispo does not have the discretion or the authority to violate state law and the California Code of Regulations. The City of San Luis Obispo has the duty to comply with state law and so does the Division of Water Rights.

The staff of the Division of Water Rights in the letter of July 12, 1994, suggests that " Thus, the CSPA request to modify the existing permit condition is not a relevant protest issue for the time extension proceeding. If CSPA wishes to pursue this issue, it may do so through the complaint process. "

First the CSPA protest request to require water be released from Salinas Dam is a relevant issue because that is the law. We believe the staff of the Division of Water Rights has a duty to obey the law. The staff of the Division of Water Rights, suggests that the CSPA spend more time and more money and file a complaint with the State Water Board, when in fact the matter of water for the environment and the public trust resources below the dam is required by state law and applies to the subject project and Permit 5882 at this time.

Relief Requested by CSPA

We request the State Water Board to comply with Fish and Game Code 5937 and Section 782, California Code of Regulations, Title 23; and require the City of San Luis Obispo to release sufficient amounts of water at all times to keep the public trust resources below the dam in good condition at all times with or without the proposed expansion project.

In order to determine the daily amount of water necessary to sustain, restore and protect the public trust resources below the Dam, the State Water Board must require the City to fund an IFIM fishery study, however in the interim the Board must require that water is released at all times to satisfy Fish and Game Code 5937.

The Burden of Proof is Placed on the CSPA by the Staff of the Division of Water Rights When in Fact the Burden of Proof is that of the City of San Luis Obispo

The Staff of the Division of Water Rights in the letter of July 12, 1994, went on to state that " If you choose to file a complaint, CSPA may be required to present evidence to document the following:"

" (1) Numeric streamflow releases requested by CSPA; "

The burden of proof to provide numeric releases from Salinas Dam is that of the City and not the CSPA. The City has that information and data, and that information and data must be made available to the State Water Board for the subject expansion project and subject petition.

" (2) extent of stream which one could reasonably expect to be enhanced any additional releases from Salinas Reservoir [Santa Margarita Lake] requested by CSPA; "

The burden of proof which one could reasonably protect and restore the Salinas River below the Salinas Reservoir (Santa Margarita Lake) is that of the Board and not the CSPA. State law requires the City to release water below Salinas Dam to protect the public trust public trust resources. It is not a matter of enhancement as suggested by the staff of the Division of Water Rights, it is a matter of protection and restoration as required by state law.

" (3) total withdrawal from storage in Salinas Reservoir [Santa Margarita Lake] required to implement the CSPA requested modification; "

The burden of proof is that of the City to provide the State Water Board and its staff with water withdrawals and diversions information and data from storage from Salinas Reservoir (Santa Margarita Lake). The City has that information and data. Didn't the City provide this information and data to the staff of the State Water Board in conjunction with the proposed expansion project? How can the State Water Board and its staff make a decision whether or not there is unappropriated water in the Salinas River during wet years, normal years, dry years and critically dry years without this information and data from the City?

" (4) total number of other water users located in the requested enhancement stream reached. If the CSPA provides the requested information, the Division will seek the comments of the Department of Fish and Game, Army Corps of Engineers (owner of Salinas Dam), City, and other known affected parties. An appropriate course of action will be determined after opportunity for comment by the affected parties. "

This request for information from the CSPA is unreasonable, ridiculous, and preposterous. Some and/or most of that information and data should be contained in the Division's files. Secondly, the City should have all of that information pursuant to the "live stream agreement". In order for the City to comply with Section 15130 of the Guidelines for the California Environment Quality Act, that information should have been included in the "cumulative environmental analysis" of the Salinas River in the Draft EIR for the expansion project. The City violated Section 15130 of the CEQA Guidelines because the City failed to provide a "cumulative environmental analysis" of the potential impacts to the public trust resources of the Salinas River below the dam from the proposed expansion project, existing diversions (live stream agreement) and future project.

Relief Requested by CSPA

We believe the City must be required by the Board to prepare a supplemental EIR for the proposed expansion project because it failed to disclose, discuss, evaluate and mitigate the cumulaltive environmental impacts to the Salinas River from the proposed expansion project in the draft EIR as required by Section 15130.

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 153, 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)

Public Information Request - Public Resources Code

Provide the CSPA with the following information:

a) Disclose and provide the CSPA with information and data of daily numeric daily streamflow releases of water from Salinas Dam since project construction and operation.

b) Disclose and provide the CSPA with information and data regarding total withdrawal and diversions from storage in Salinas Reservoir [Santa Margarita Lake] by the City since project construction and operation.

c) Disclose and provide information and data to the CSPA regarding the names and total number of other water users in the "live stream agreement" who divert and use water from the Salinas River and the subject reservoir below Salinas Dam. Include the locations of diversions, season of diversion, the purposes of use, the amounts of daily and annual diversions for wet year, normal year, below normal year, dry year and critically dry year conditions.

d) Disclose and cite the points of law and authority of law whereby a staff person of the Division of Water Rights has the discretion not to comply with Fish and Game Code 5937 and Section 782, California Code of Regulations, Title 23; with respect to petitions of extension of time for the Salinas River and Old Creek, and other water right applications.

e) Disclose and cite the points of law and authority of law whereby the City of San Luis Obispo has the discretion not to comply with Fish and Game Code 5937 and Section 782, California Code of Regulations, Title 23; with respect to its petitions of extension of time for the Salinas River and Old Creek.

LIve Stream Agreement - Board Order 78-3

The staff of the Division of Water Rights stated that, " In the City's September 20, 1991 response to protest, the City stated on June 1, 1972, the State Water Resources Control Board (SWRCB) issued an order which established the "live stream agreement", which was subsequently reaffirmed as the appropriate stream management condition for Salinas Reservoir in Water Right Order 78-3. "

Public Information Request Concerning Live Stream Agreement and Board Order 78-3 - Public Resources Code

a) Disclose and provide a copy to the CSPA of Board Order 78-3.

b) Disclose and provide a copy to the CSPA of the environmental document pursuant to the provisions of the California Environmental Quality Act and Its Guidelines which was prepared and approved by the State Water Board for Board Order 78-3.

c) Disclose and provide to the CSPA copies of Permits 5882, which includes all amendments.

d) Disclose and provide to the CSPA copies of all petitions for extension of time submitted to the State Water Board by the City of San Luis Obispo since the project became operational for Permit 5882.

e) Disclose and provide the CSPA with a copy of the investigative report by the Division of Dam Safety which shows there is a seismic safety problem at Salinas Dam and Reservoir

The Division of Water Rights Letter of July 12, 1994, Failed to Discuss, Disclose and Evaluate Protest Issues in the CSPA Letter of March 14, 1994

1. The Division of Water Rights did not disclose and discuss whether the information and data presented in the CSPA response of March 14, 1994, contained in No. 1 under "We find the Draft EIR deficient and in violation of state law for the following reasons: " was correct and true, and on what specific grounds it was not valid.

We believe the Division of Water Rights must make this finding in the Certificate Of Review and Analysis for the subject project.

2. The Division of Water Rights did not disclose and discuss whether the information and data presented in the CSPA response of March 14, 1994, contained in No. 2 under "We find the Draft EIR deficient and in violation of state law for the following reasons: " was correct and true, and on what specific legal grounds each reason is not valid.

We believe the Division of Water Rights must make this finding in the Certificate Of Review and Analysis for the subject project.

3. The Division of Water Rights did not disclose and discuss whether the CSPA reasons for enforcement of Fish and Game Code 5937 is true and correct, and on what specific legal grounds Fish and Game Code 5937 does not apply to the proposed project.

We believe the Division of Water Rights must make this finding in the Certificate Of Review and Analysis for the subject project.

4. The Division of Water Rights did not disclose and discuss Sections 100, 1241 and 1243 of the California Water Code and how these sections apply to the proposed project.

We believe the Division of Water Rights must make this finding in the Certificate Of Review and Analysis for the subject project.

5. The Division of Water Rights did not disclose and discuss how the Public Trust Doctrine applies to the proposed project.

We believe the Division of Water Rights must make this finding in the Certificate Of Review and Analysis for the subject project.

6. The Division of Water Rights did not disclose and discuss the cumulative impacts from this proposed project and Nacimiento Reservoir and the need to release water from the reservoir to prevent salt water intrusion in the Salinas Valley. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact.