CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
P.O. BOX 357
QUINCY, CALIFORNIA 95971
Mr. Walt Pettit September 14, 1994
Executive Director
State Water Resources Control Board
901 P Street - Bonderson Building
P.O. Box 100
Sacramento, CA 95812-0100
Re: Proposed Salinas Reservoir Expansion Project (Water Right Permit 5882 (Permitted Application 10216) and Water Right Permit 11390 (Permitted Application 17114), Salinas River and Old Creek; Petitions for Extension of Time; City of San Luis Obispo, Petitioner; Comments by the California Sportfishing Protection Alliance, Protestant, to letter of August 22, 1994 from Dale Claypoole representing the Chairman and Members of the State Water Resources Control Board in response to the CSPA letter of July 20, 1994.
Dear Mr. Pettit:
This is in response to Mr. Claypoole's letter of August 22, 1994, which responded to my letter of July 20, 1994, to you, the chairman and the members of the State Water Resources Control Board regarding the above mentioned petitions and proposed Salinas Reservoir Expansion Project.
The Purpose of the CSPA Statement of Facts and Reasons to the State Water Board of July 20, 1994
The purpose of my letter was to advise the Board members and you of what their staff was doing and what their staff was not doing in the above mentioned petitions, the proposed expansion project, the CEQA process, the treating of the CSPA protests in this matter, and having the petitioner and the Board's staff comply with state environmental law concerning both petitions. We envisioned the Board taking internal actions to correct the problems I pointed out in my letter under relief requested. Mr. Claypoole's response did not correct any of the problems for the most part nor did he respond to the relief request portions of the CSPA submittal.
Deficient Response and the Record
Mr. Claypoole stated that my letter was quite long and that I repeated many of the points for each primary issue that I raised. Consequently, he simply treated my specific points of fact as if the points of fact and issues were not made or did not exist, and addressed a few of the issues that were typed in bold headings.
The purpose of my long letter and points of fact was to place into the records the manner in which the staff of the Division of Water Rights was treating: (a) the CSPA protest, (b) the due process rights of the CSPA, (c) the draft EIR by the City of San Luis Obispo (d) state law, and (e) the environmental issues associated with the proposed expansion project.
Upon reviewing the statements in Mr. Claypoole's letter, it is clear to me that he did not review the records and the contents of my letter of July 20, 1994. I urge you to review the records in this matter so that your future written responses to me concerning this matter are accurate and reflect what is in the records.
The Record - CSPA Letter of July 20, 1994
1. Mr. Claypoole did not respond to the record as stated im my submittal of July 20, 1994. The record as stated in my submittal of July 20, 1994 should been addressed by him in his letter of August 22, 1994. I am requesting you to respond to the record as submiited.
The relief requested by CSPA under " The Record " was not addressed in Mr. Claypoole's letter of August 22, 1994. We are requesting you specifically answer the relief requested by CSPA.
I reference pages 2, 3, and 4 of the CSPA submittal of July 20, 1994.
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 - Comments and Legal Objections by the CSPA - CSPA Letter of July 20, 1994
Mr. Claypoole did address this portion of the submittal of July 20, 1994, in part. Our claim that the staff person did not have the authority to dismiss the CSPA protest was correct. As stated by Mr. Claypoole, Edward Anton, Chief, Division of Water Rights, has that authority, provided the dismissal is in accordance with the requirements of the California Water Code and the California Code of Regulations. However, I believe that the dismissal of the CSPA protest at this point in time based on the records would violate the due process rights of the CSPA.
With respect to Mr. Claypoole's allegation that I did not identify adverse impacts at the Salinas Reservoir site is incorrect. Permit 5882 (Salinas River) and Permit 11390 (Salinas River and Old Creek) do not have mandatory daily streamflow requirements to protect public trust fishery resources. Consequently, the terms and conditions in both permits are in violation of state law (Fish and Game Code 5937) and have had adverse impacts to public trust fishery resources of the Salinas River and Old Creek.
With respect to the relief request portion of this portion of the letter of July 20, 1994, Mr. Claypoole's response concerning CEQA is deficient as I will show you later on in this letter. Also, Mr. Claypoole did not respond to statements made by the staff person.
Also Mr. Claypoole did not answer the question of law under relief request. That question was " 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 ? "
Mr. Claypoole also did not advise me whether an attorney from the State Water Board will determine whether or not the City's 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 prepared by the City responded properly to the issues raised by the CSPA in its letter of March 14, 1994.
I reference pages 4, 5, 6, and 7 of the CSPA submittal of July 20, 1994.
1st Public Information Request - Public Resources Code - CSPA Letter of July 20, 1994
Mr. Claypoole did not disclose the information and data we requested. I will discuss this matter later in this letter.
I reference pages 7, 8, and 9 of the CSPA submittal of July 20, 1994.
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 Correspondance Whether or Not an Application for Water Right Must be Submitted by the City of San Luis Obispo For The Salinas Reservoir Expansion Project - CSPA Letter of July 20, 1994
I spelled out the requirements of the California Water Code and the California Code of Regulations regarding this matter. Mr. Claypoole failed to acknowledge in his letter of August 22, 1994, the sections of the codes I cited in my letter of July 20, 1994. Those sections of the codes are very clear about how to file for unappropriated water. As stated in my letter of July 20, 1994, we believe the City has also lost it right by not putting the water under Permit 5882 to full beneficial use.
I reference pages 9, 10, 11, and 12 of the CSPA submittal of July 20, 1994.
The Heart of the CSPA Protest - CSPA Letter of July 20, 1994
Mr. Claypoole did not answer this portion of the submittal of July 20, 1994, nor did he answer the relief requested.
I reference pages 12, 13 and 14 of the CSPA submittal of July 20, 1994.
The Burden of Proof is Placed in 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 - CSPA Letter of July 20, 1994
Mr. Claypoole did not address the points made by me in this portion of the submittal of July 20, 1994. Later in this letter I will show advise you of the complaint process and the regulations.
I reference pages 14, 15 and 16 of the CSPA submittal of July 20, 1994.
2nd Public Information Request - Public Resources Code - CSPA Letter of July 20, 1994
Mr. Claypoole did not disclose the information and data we requested. I will discuss this matter later in this letter.
I reference pages 16, 17, 18, 19, 20, 21, 22 and 23 of the CSPA submittal of July 20, 1994.
Permit No. 11390 (Application 17114) - Old Creek Tributary to the Pacific Ocean - CSPA Protest Condition - CSPA Letter of July 20, 1994
In my letter to of July 20, 1994, I did disclose to the Board and you the adverse impacts and violations of law associated with Permit 1190 and the petition for extension of time. Mr. Claypoole letter of August 22, 1994, did not touch on this issue at all.
I reference pages 23, 24, 25, 26 and 27 of the CSPA submittal of July 20, 1994.
The adverse impacts to the public trust resources is the dewatering of Old Creek by the Petitioner under Permit 11390 which extinguished the southern steelhead trout populations of Old Creek. Fish need water to survive.
So that there is no misunderstanding on your part, the following should satisfy Mr. Claypoole's request for information regarding CSPA protest conditions:
a) We are requesting water be released at all times from Whale Rock Dam to restore and protect the public trust southern steelhead trout resources of Old Creek adversely impacted by the operations of Whale Rock Reservoir.
(b) The releases of water should be in sufficient amount and water quality (cold water) to restore and protect southern steelhead trout trout and other cold water species below the dam to the Pacific Ocean.
(c) Since it can be assumed that the southern steelhead trout species and "runs" thereof which existed in the stream during pre-project periods have been extinguished because of the lack of water being released at all times, we recommend the petitioner restore the river with natural southern steelhead trout stocks.
d) Since the Public Trust Doctrine requires the Board to balance the uses (public trust uses and water uses), we recommend 50% of the inflow of Old Creek be released from Whale Rock Dam at all times. However, we are not opposed to having the petitioner fund an IFIM study to determine the daily amount of water necessary to maintain and restore southern steelhead trout species and habitat below the dam to the Pacific Ocean.
Water Rights - State Water Board - Authority to Act - Permits 5882 and 11390 and Other Permitted and LicensedApplications to Store, Divert and Use the State's Water of the Salinas River and Old Creek.
You are quite aware of the Board's authority to amend water right permits to protect public trust resources. This need no further explanation.
Anti-Environmental Management Direction
Mr. Claypoole addressed my comments concerning the Division of Water Rights anti-environmental management direction. I disagree with his statements and conclusion.
The evidence in this matter is very clear. I reference all protests and letters filed by the CSPA with the Board and its staff on water right petitions filed by permittees and licensees, including the records.
As I recall there are about 16,000 water right permits issued by the Board. A large majority of those permits do not have mandatory flow requirements to protect the state's fishery resources. I reference meetings between Jim Crenshaw, President, CSPA and Bob Baiocchi, CSPA, with you when you were the former chief of the Division of Water Rights, and Chuck Rich, of the Division's Complaint Unit at that time.
Because a majority of water right permit do not have mandatory streamflow conditions to protect public trust fishery resources, the CSPA commenced filing protests on petitions for extension of time. The administrators of the Division of Water Rights refused time and time again to amend permits and accept the CSPA public trust streamflow requirement protests.
Pursuant to Water Code Section 100 and 275 and the common law public trust doctrine, all rights and privileges under permitted rights, including method of diversion, method of use, and quantity of water diverted and stored, are subject to the continuing authority of the SWRCB in accordance with law and in the interest of the public welfare to protect public trust uses and to prevent waste, unreasonable use, unreasonable method of use or unreasonable method of diversion.
It is clear that the SWRCB has the authority to amend terms and conditions to protect public trust resources. However, the chief and his staff of the Division of Water Rights has worked in direct contravention of protecting public trust resources when they refused to consider amending existing permits and recommemd to the Board the ordering of mandatory streamflow requirements to protect the public trust resources. In my view that is anti-environmental management and anti-public trust management direction.
Rather than having the CSPA and other parties continuing to file protest after protest on petitions, the most reasonable and lawful solution would be for the Division of Water Rights to recommend the ordering of mandatory streamflows requirements for public trust resources when petitions are filed and existing permits do not have any streamflow protection measures to protect public trust resources. That would take time, but it would be a wonderful start in the right direction to correct a major public trust problem with water right permits issued many years ago when the law was not clear.
Equal Treatment and Consideration by the Board and its Staff Towards All Parties
It appears to me that the statements in Mr. Claypoole's letter of August 22, 1994, attempted to support statements and positions by the engineering staff of the Division of Water Rights regardless of the facts, issues, state laws, state regulations and the record in this matter. It is my belief that the administrators of the Division of Water Rights have a duty and a responsibility to protect public trust resources and assets when administering water right matters such as the proposed Salinas Reservoir Expansion Project and the extension for time for Permit 11390 (Old Creek). It is also my belief that applicants and petitioners should not be given special treatment and consideration, and that protestants, applicants and/or petitioners should be treated equally on a level playing field in accordance with the mandates of the law and the Board's own regulations.
Burden of Proof by CSPA - The Law - Water for Protection of Public Trust Resources
The central issue concerning the CSPA protest is that the water right permits held by the City of San Luis Obispo fail to have a mandatory daily streamflow requirement to protect the public trust fish and wildlife resources in the Salinas River below Salinas Dam, and also in Old Creek below Whale Rock Dam. Unfortunately when the water right permits were issued by the Board, the Board did not order releases of water from the dams to protect public trust resources below the dams. On a consistent basis the CSPA has attempted to have the Division's staff recommend the ordering of mandatory daily streamflows for the public trust fish and wildlife resources when terms and conditions in existing water right permits do not have this state mandated requirement. I believe that is a reasonable request since that is state law and the chief of the Division of Water Rights has a duty to uphold the law.
Deficient Draft EIR
The Draft EIR for the proposed project prepared by the City fails to comply with state law and does not recommend mandatory daily streamflow requirements from Salinas Dam to protect and restore the public trust fish and wildlife resources in the Salinas River adversely impacted by the operations of the existing project. In fact the Draft EIR did not evaluate and mitigate the impacts to the public trust fish and wildlife resources below the dam from the proposed project. CEQA requires that all potential environmental impacts are evaluated and mitigated to less than significant. Mr. Claypoole did not address this matter in his letter of August 22, 1994 because I believe he did not review the records.
In many water right matters, when an applicant and/or a petitioner is the lead agency and prepares a deficient Draft EIR, the staff of the Environmental Unit in conjunction with the Division's management, required the preparation of supplemental EIR's. I recommend you discuss this matter with the staff of the Environmental Unit to determine whether or not this is true or not. Often, deficiencies in the Draft EIR are cleaned up by the staff of the Environmental Unit before the document is released for public comment. In this instant situation the deficiencies were not cleaned up.
The Board's Authority Under CEQA as the Responsible Agency is in Error and Not in Accordance With CEQA and its Guidelines
Under Section 15096 of the CEQA Guidelines, the Board can require a supplemental EIR, and can in fact, as the responsible agency, take the issue to court within 30 days after the lead agency files a notice of determination. However, Mr. Claypoole advised me in his letter that the Board does not have the authority to determine the legal adequacy of the City's EIR, and that the CSPA would have to take the matter to court. Consequently I disagree with Mr. Claypoole's conclusion. Based on his explanation, I find it interesting that the Board would issue a water right permit and/or amend an existing permit based on a deficient EIR that did not evaluate the impacts to fishery and aquatic resources below the dam, and fails to provide water at all times from the dam to protect and restore public trust resources below the dam as required by state law.
Under Section 15096 of the CEQA Guidelines the following is stated:
Section 15096 (b) - " Response to Consultation. A responsible agency shall respond to consultation by the lead agency in order to assist the lead agency in preparing adequate environmental documents for the project. By this means, the responsible agency will ensure that the documents it will use will comply with CEQA. (Emphasis Added)
The State Water Board is mandated under Section 15096 (b) to ensure that the City's Draft and Final EIR will comply with CEQA. Consequently, Mr. Claypoole's statement that the "SWRCB does not have the authority to determine the legal adequacy of the City's EIR " is in error of law.
Will you ensure the City's Draft and Final EIR is in full compliance with CEQA and its Guidelines?
CEQA Process - Integrity of the Board and its Staff
In Mr. Claypoole's description of the CEQA process and the role of the Board as the responsible agency, it appears to me that Mr. Claypoole really does not care whether or not the Draft and Final EIR for the subject project is in compliance with CEQA and its Guidelines. I believe the integrity of the Board's CEQA process concerning water rights matters and proposed water projects must be held to the highest of standards so that the public can be assured that the Board and its staff is factually mitigating adverse impacts and protecting public trust resources when the Board approves water projects and water right permits.
Do you plan to have the chief and staff of the Division of Water Rights have low standards or the highest of standards to protect public trust resources when reviewing environmental documents prepared by applicants/petitioner concerning the issuance of water right permits and/or the approval of petitions and water right applications?
The Board's Complaint Process - Title 23 California Code of Regulations - Sections 820, 821, 822 and 823 - CSPA Complaints
On behalf of the CSPA, over a course of many years, I have filed hundreds of protests and dozens of complaints with the Board. Many protests and complaints were scheduled for hearings and hearings were held by the Board. i.e. Lower Yuba River, Lower Mokelumne River, Santa Ynez River, etc.
Mr. Claypoole stated that under Title 23, Sections 820 to 823, the CSPA is compelled to " If the CSPA files a complaint against the City in which it requests additional releases from Salinas Reservoir, it must state how much water should be released, when those releases should occur, and the purpose of the releases." He cited Title 23 CCR Section 820 (e) to support his statement.
Section 820 (e) does not state what Mr. Claypoole alleged. Section 820 (e) states; " The specific action which complaintant requests. "
When the CSPA Public Trust Complaint against the Bureau of Reclamation on the Santa Ynez River was filed by the CSPA with the Board, the CSPA did not spell out how much water should be released and when those releases should be released. We requested water be released to protect and restore public trust resources of the Santa Ynez River because the Board had failed to require mandatory flows for public trust fishery resources. The Division's Complaint Unit investigated said complaint and a hearing was held by the Board. Most importantly, the complaint was not dismissed based on Mr. Claypoole's opinion of Section 820 (e).
When the CSPA Public Trust Complaint against East Bay MUD on the Lower Mokelumne River was filed by the CSPA with the Board, the CSPA did not spell out how much water should be released and when those releases should be released. We requested more water be released to protect and restore public trust resources of the Lower Mokelumne River. The Complaint Unit investigated said complaint and a hearing was held by the Board. Most importantly, the complaint was not dismissed by the Board and Its staff based on Mr. Claypoole's opinion of Section 820 (e).
When the CSPA Public Trust Complaint against Yuba County Water Agency et al. on the Lower Yuba River was filed by the CSPA with the Board, the CSPA did not spell out how much water should be released and when those releases should be released. We requested more water be released to protect and restore public trust resources of the Lower Mokelumne River. The Complaint Unit investigated said complaint and a hearing was held by the Board. Most importantly, the complaint was not dismissed based on Mr. Claypoole's opinion of Section 820 (e).
Directly under Title 23 CCR Section 820 (c), the following is stated: " Any person may complain of a violation of a condition intended for the benefit of the public." (Emphasis Added)
Complaints filed by the CSPA benefit the public, benefit public trust resources, and protect public property. The state's fish and wildlife resources are the property of the people of California. The fish and wildlife resources are public trust resources and assets.
It is very clear to me that Mr. Claypoole has developed his own rules concerning Title 23 CCR Section 820 to 823. His rules are not in accordance with the regulations, and in fact violate the due process rights of complaintants as well as the regulations.
So that there is no misunderstanding on your part, the following should satisfy Mr. Claypoole's request for information regarding CSPA protest conditions:
a) We are requesting water be released at all times from Salinas Dam to restore and protect the public trust resources in the Salinas River adversely impacted by the operations of Salinas Reservoir.
(b) The releases of water should be in sufficient amount and water quality (cold water) to restore and protect wild trout and other cold water species below the dam.
(c) Since it can be assumed that cold water species which existed in the river during pre-project periods have been extinguished because of the lack of water being released at all times, we recommend the petitioner restore the river with natural wild trout stocks. Releases for wild trout should restore riparian habitat and provide water for wildlife species, as well as provide for recreation.
d) Since the Public Trust Doctrine requires the Board to balance the uses (public trust uses and water uses), we recommend 50% of the inflow of the Salinas River (all tributaries) be released from Salinas Dam at all times. However, we are not opposed to having the petitioner fund an IFIM study to determine the amount of water necessary to maintain cold water species such as wild trout.
Request for Hearing Denied
Mr. Claypoole denied the CSPA request for hearing on the basis of the adequacy of the City's Draft EIR.
My request to the Board for a hearing was to have the Board require the City of San Luis Obispo to prepare a supplemental EIR for the proposed project because the Draft EIR as written is deficient and is in violation of CEQA and its guidelines, and it is specifically in violation of Fish and Game Code 5937 (state law). I also believe that a violation of Fish and Game Code 5937 also violates the common law public trust doctrine.
In Mr. Claypoole's letter he stated that: " As I discussed in the section regarding CEQA compliance, it is inappropriate for the SWRCB to hold a hearing for the purpose of determining whether the City has complied with CEQA and whether the Final EIR, when it is adopted by the City, is adequate. Only a court hearing a challenge to the City's certification of the EIR has that authority. "
It is true that the CSPA may challenge the adequacy of the Final EIR in a court hearing as well as challenge the Board in the courts, should the Board approve the proposed project on the basis of the adequacy and findings in the Final EIR.
In any event, the Board should hold a hearing on the subject project, so that the Board makes a decision and finding based on a hearing record.
Violation of Due Process Rights of the CSPA
If Mr. Claypoole had reviewed the records, he would have found that the City of San Luis Obispo and its agents, did not submit to me a timely copy of the Draft EIR so that the CSPA had the opportunity to submit timely comments on the adequacy of the Draft EIR. However, I did comment on the Draft EIR after the deadline period because we needed to respond in writing to the adequacy of the CEQA document and have our comments placed into the Division's records. We still stand behind those comments.
It is my belief that all applicants/petitioners should act in good faith and provide protestants with copies of Draft EIR's so that the protestants have the opportunity to review said documents and provide written comments to the lead agency and the responsible agency. I believe that the Board and its staff should in the future require that all applicants/petitioners provide protestants with timely copies of Draft EIR's, and when timely copies are not forwarded to protestants, that the Division's staff have the comment period extended.
How do you plan to correct this problem?
Adverse Impacts - Fish Need Water to Survive
I disagree with Mr. Claypoole that I have not identified any adverse impacts associated with the proposed project. Again, he did not review the records. I refer you to the CSPA comments to the Draft EIR and other submittals in the Division's files for said petitions.
Again, the existing water right permits are in violation of Fish and Game Code 5937 (Salinas River and Old Creek), and the petitioner proposes not to comply with Fish and Game Code 5937 for the proposed expansion project because it would conflict with the purpose of the project. Public trust fish and aquatic resources need water to survive. It is also my belief that the failure of the Petitioner to recommend water for the public trust fish and wildlife resources below Salinas Dam for the proposed project is also a violation of the common law public trust doctrine.
Water Rights Process - Protecting and Restoring Public Trust Resources
I am attempting to work the Board's administrative water rights process in this matter so that public trust fish and wildlife resources of the Salinas River and Old Creek watersheds are protected and restored. Rather than correct the problems as stated in my letter, it appears Mr. Claypoole's letter simply puts the CSPA into a position of seeking court actions to correct administrative deficiencies associated with the CSPA protest and the proposed project and petitions. I hope this is not true, and I truly hope your goal is to carry out the public trust duties and responsibilities that the Board has authorized the Division of Water Rights to carry out in administrating water right matters.
Do you plan to have the Division of Water Rights protect public trust resources when administering water rights?
Certificate of Review and Analysis - CEQA
I disagree with Mr. Clayborne that the Division of Water Rights and/or the State Water Board is not required to complete a "Certificate of Review" with a detailed analysis (findings) for the subject EIR. I have consulted with the staff of the Environmental Unit more than once and they have advised me that a "Certificate of Review" with a detailed analysis is required by CEQA, however, the Division's management is attempting to change the rules and requirements internally. I recommend you discuss this matter with the staff of the Division's Environmental Unit to further clarify this matter. By staff I mean not only Mike Falkenstein, but the entire staff.
Is the Division of Water Rights properly or improperly administering CEQA and its Guidelines when the Board is the responsibility agency?
Water Rights Application - The Filing of a Petition for Extension of Time by the City Was Improper and Not in Accordance With the Board's Regulations and the California Water Code.
Mr. Claypoole stated that " you do not cite specific sections of either the Water Code or the Code of Regulation which requires the action you seek and I am not aware of any ". I did cite sections of the California Water Code and the California Code of Regulations in my letter of July 20, 1994. I reference said comments.
The City is proposing to appropriate unappropriated water. Petitions for extensions of time are not platforms for applying for and constructing major water projects. Extensions of time are specifically to show the Board and its staff that the permittee is putting the permitted water to full beneficial use, and the permittee needs additional time to do so.
Again I will reference the sections of the California Water Code and the California Code of Regulations.
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)
Section 1202 (a) states - " All water which has never been appropriated. "
Section 1202 of the California Water Code further 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. "
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. We believe 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 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. "
Title 23 CCR Section 695 states as follows:
" Section 695. Unappropriated Water - A permit can be issued only for unappropriated water. Unappropriated water does not include being used pursuant to an existing right, whether the right is owned by the applicant, or by another person.
We are again requesting the Division to require the City to file an application for water right for the proposed expansion project as required by the California Water Code and the California Code of Regulations.
We also believe the Division of Water Rights should conduct an investigation to determine whether or not the City has lost part of its rights under Permit 5882.
Public Information Request - Public Resources Code - Falure of Asst. Executive Director Dale Claypoole to Disclose Public Information
In the CSPA Letter of July 20, 1994, I requested the disclosure of information and data. Mr. Claypoole in his answer to said letter did not provide said information and he stated that " The SWRCB is unable to provide you with information which does not exist or is not sufficiently identified to enable staff to determine what it is ". He did agree to submit to me certain documents, however there may be a copying charge.
Mr. Claypoole stated that " You also requested certain information be disclosed. The SWRCB is unable to provide you with information which either does not exist or is not sufficiently identified to enable staff to determine what it is. "
The information I requested to be disclosed is pertinent to the proceeding. Without the information, I question how the Division of Water Rights staff can process the subject petitions and subject expansion project. The request for disclosure of information is specific. I am again requesting the disclosure of this information. The requested information is as follows:
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
PROVIDE THE CSPA WITH THE POINTS OF LAW AND AUTHORITY OF LAW.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
PROVIDE THE CSPA WITH THE POINTS OF LAW AND AUTHORITY OF LAW.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THIS DOCUMENT IS CONTAINED IN THE DIVISION OF WATER RIGHTS FILES. PLEASE FORWARD THIS DOCUMENT.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THIS DOCUMENT SHOULD BE CONTAINED IN THE DIVISION OF WATER RIGHTS FILES. PLEASE FORWARD THIS DOCUMENT. IF A CEQA DOCUMENT WAS NOT PREPARED, PLEASE ADVISE ME OF THAT FACT IN WRITING.
c) Disclose and provide to the CSPA copies of Permits 5882, which includes all amendments.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THESE DOCUMENTS ARE CONTAINED IN THE DIVISION OF WATER RIGHTS FILES. PLEASE FORWARD COPIES OF SAID PERMITS.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THESE DOCUMENTS ARE CONTAINED IN THE DIVISION OF WATER RIGHTS FILES.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND OR DWR AND FORWARD IT TO THE CSPA.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THE DISCLOSURE OF THIS INFORMATION CAN BE MADE IN WRITING BY THE STAFF OF THE DIVISION OF WATER RIGHTS.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THE DISCLOSURE OF THIS INFORMATION CAN BE MADE IN WRITING BY THE STAFF OF THE DIVISION OF WATER RIGHTS.
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 and both petitions.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THE DISCLOSURE OF THIS INFORMATION CAN BE MADE IN WRITING BY THE LEGAL STAFF OF THE SWRCB.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THE DISCLOSURE OF THIS INFORMATION CAN BE MADE IN WRITING BY THE LEGAL STAFF OF THE SWRCB.
5. The Division of Water Rights did not disclose and discuss how the Public Trust Doctrine applies to the proposed project.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THE DISCLOSURE OF THIS INFORMATION CAN BE MADE IN WRITING BY THE LEGAL STAFF OF THE SWRCB.
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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
7. The Division of Water Rights did not disclose and discuss the cumulative impacts to the Salinas River Lagoon from this project and Nacimiento Reservoir. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
8. The Division of Water Rights did not disclose and discuss the amount of water released or bypassed by each water right holder below the Salinas Dam to protect public trust resources. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact below specific points of diversions.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
9. The Division of Water Rights did not disclose or discuss the cumulative impacts to seawater intrusion in Salinas Valley resulting from the proposed project during different water year types. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
10. The Division of Water Rights did not disclose or discuss the cumulative impacts to groundwater 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. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
11. The Division of Water Rights did not disclose or discuss the Salinas River Basin Water Resources Management Plan and Planning Project, nor did it disclose and discuss the cumulative effects to said program and project resulting from reduced flows caused by the proposed project. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact to the Salinas River Basin Water Resources Management Plan and Planning Project resulting from the proposed project.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
12. The Division of Water Rights did not disclose or discuss the efforts of the USEPA and the Monterey Bay Area Governments to assess water quality problems in the Salinas Valley and the cumulative impacts to reduced flows in the Salinas River from the proposed project. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact to reduced flows (surface and underflow) from the proposed project.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
13. The Division of Water Rights did not disclose or discuss 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 City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact to said land holding and wetlands, riparian vegetation and estuarine aquatic habitats from reduced flows as a result of the proposed project.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
14. The Division of Water Rights did not disclose and discuss the Salinas River Management and Enhancement Plan. The City's Draft EIR did not disclose, discuss and evaluate this potential cumulative environmental impact 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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
15. The Division of Water Rights did not disclose and discuss the Coordinated Resource Management and Planning (CRMP) process in San Luis Obispo County. The City's Draft EIR did not disclose, discuss and evaluate the potential direct and cumulative environmental impacts to the proposed comprehensive river planning by CRMP as a result of the proposed project.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
16. The Division of Water Rights did not disclose and discuss whether or not 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. The CSPA made that request in its comments of March 14, 1994.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THE SWRCB CAN DISCLOSE THIS INFORMATION IN THE FUTURE.
17. The Division of Water Rights did not disclose and discuss that 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)
As stated by the CSPA, " 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.]
As stated by the CSPA, " 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 ".
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
THE DISCLOSURE OF THIS INFORMATION CAN BE MADE IN WRITING BY THE STAFF OF THE DIVISION OF WATER RIGHTS.
18. The Division of Water Rights did not disclose and discuss whether the Draft EIR was in compliance with state and federal law. In the City's 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.]
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
AS THE RESPONSIBILE AGENCY THE STAFF OF THE DIVISION OF WATER RIGHTS MUST MAKE THIS DETERMINATION AND FINDING.
19. The Division of Water Rights did not disclose and discuss whether Fish and Game 5937 is applicable to the proposed project. The City's 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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
AS THE RESPONSIBILE AGENCY THE STAFF OF THE SWRCB MUST MAKE THIS DETERMINATION.
20. The Division of Water Rights did not disclose and discuss that 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.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
AS THE RESPONSIBILE AGENCY THE STAFF OF THE SWRCB MUST MAKE THIS DETERMINATION.
21. The Division of Water Rights did not disclose and discuss 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.The City's 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. Without this site-specific information and data the City's Draft EIR was deficient and did not evaluate the direct and cumulative impacts to the fish and aquatic species in the river below the dam affected by the proposed project.
This request for information is self explanatory. However, for additional questions regarding this request, please have your staff call me by telephone.
IN THE EVENT THE STAFF DOES NOT HAVE THIS INFORMATION, THE STAFF SHOULD REQUEST THIS INFORMATION FROM THE PETITIONER AND FORWARD IT TO THE CSPA.
Statement of Reason For Written Response - The Records
In conclusion, I disagree with Mr. Claypoole's statements concerning my letter of July 20, 1994, and the records. In his letter of August 22, 1994, he stated that if I have any additional questions, I should contact him. Based on my experience, I have found that telephone calls are not documented and placed into the records. For that reason, all comments from the CSPA on this matter will be in writing so that the comments are placed into the records.
California Fish and Game Code 5937 - Will the Board and its Staff Enforce State Law to Protect and Restore Public Trust Fish and Wildlife Resources
I need to know whether the Board will enforce Fish and Game Code 5937 and require the City of San Luis Obispo to release water at all times from Salinas Dam and Whale Rock Dam to keep fish in good condition and restore and protect the public trust fish and wildlife resources of the Salinas River and Old Creek below the dams.
I am requesting your staff under your supervision to review all of the records in this matter and than respond to me in writing concerning all of issues and the points in my letter of July 20, 1994 and all of the issues and all of the points and all of the questions in this letter.
Please place this letter into the records for the subject petitions and proposed expansion project.
A written response is requested. Please forward copies of your written response to Joel C. Baiocchi, Michael Jackson and me.
Respectfully Submitted
________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-283-3767 (New Office - Same Telephone) or 916-283-1007 (Law Office) or 916-836-0338 (Home Office)
cc: Joel C. Baiocchi, Counsel, CSPA
Mike Terry, Para-Legal
Mullen and Henzell
P.O. Drawer 789
Santa Barbara, CA 93102-0789
Michael Jackson, Counsel, CSPA
Tom Gregory, Para-Legal and Water Rights Consultant
P.O. Drawer 207
Quincy, CA 95971
Jim Crenshaw, President, CSPA
Bill Jennings, Chairman, CSPA
Scott Slater
Hatch and Parent
21 East Carrillo Street
Santa Barbara, CA 93101-2782
Katherine Mrowka
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Interested Parties