Katherine Mrowka May 11, 1994
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Re: Salinas Reservoir Expansion Project; Draft EIR; Petition for Extension of Time; WR Permit 5882 (Application 10216) and WR Permit 11390 (Application 17114); Response to Comments by the City of San Luis Obispo to CSPA Comments of March 14, 1994 to Draft Environmental Impact Report.
I have consulted with our attorney, Mike Jackson, regarding the letter of comment by Scott Slater of Hatch & Parent representing the City of San Luis Obispo concerning the CSPA comments to the Draft Environmental Impact Report. We reference that letter to this letter of comment.
The City of San Luis Obispo has taken the notion that the City is excused from having to respond to the CSPA comments to the Draft EIR in the Final EIR. We believe the City is not excused from having to respond to the CSPA comments whether the comments are in the form of comments to the Draft EIR, or are comments to the Final EIR. By notice of this letter we expect Scott Slater to provide me with a timely copy of the Final EIR. ( My Emphasis)
First, the City violated the due process rights of the CSPA as a protestant when it failed to provide a timely copy of the Draft EIR to the CSPA so that the CSPA could provide the City with timely comments to the Draft EIR. The City had a copy of the CSPA protest and my mailing address and telephone number were shown on the protest. In fact the City filed an answer to the CSPA protest, dated September 20, 1991. The City willfully and knowingly did not provide a timely copy of said Draft EIR to the CSPA, protestant, and consequently willfully and knowingly violated the due process rights of the CSPA as a protestant.
CEQA notice requirements may be insufficient to satisfy constitutional mandates. Although the CEQA notice provisions are adequate to foster "generalized public participation" in environmental decisionmaking, they may be inadequate in instances in which a proposed project may substantially affect the "fundamental interests" of some person or persons. Where such interests are at stake, such as the CSPA as a formal protestant, constitutional due process standards require that notice must be "reasonably calculated to afford affected persons the realistic opportunity to protect their interests". Such notice, moreover, must "occur sufficiently prior to a final decision". [See Horn v. County of Ventura (1979) 24 Cal.3d 605, 617-618 [156 Cal. Rptr. 718] (My Emphasis)
In Horn, these constitutional principles of due process were relevant because the project in question -- a tentative subdivision map approval -- was quasi-adjudicatory in character. The proposed Salinas Reservoir Expansion Project is quasi-adjudicatory because the City of San Luis Obispo must obtain the approval of said petition from the State Water Board. The following kind of project has been held to be quasi-adjudicatory: the granting of use permits. [See Neighborhood Action Group v. County of Calaveras (3d Dist. 1984) 156 Cal.App.3d 1176, 1186 [203 Cal.Rptr. 401]; [See Horn v. County of Ventura (1979) 24 Cal.3d 605, 617-618 [156 Cal. Rptr. 718]; Johnston v. City of Claremont (1958) 49 Cal.2d 826, 834 [323 P.2d 71, 76].
Secondly, I am responsible for reviewing and submitting comments on any Draft and Final EIR when it is part of a water right protest filed by the CSPA with the State Water Board. The City takes the notion again that a CSPA representative in the local area was well aware of the availability of the Draft EIR and consequently that satisfied the CEQA notice process. The City circumvents the issue because the CSPA was a protestant to said petition, and for that reason formal timely notification of the Draft EIR and the opportunity for timely comments should have been made to me by the City.
Also, the City did not provide the CSPA with a copy of the Notice of Preparation for said Draft EIR so that the CSPA had the opportunity to provide scoping comments to the preparation of said Draft EIR. Again, the due process rights of the CSPA were violated by the City.
Thirdly, the City of San Luis Obispo comments in its letter of May 2, 1994 to you regarding the CSPA comments to the Draft EIR are grossly deficient and are not in compliance with the California Environmental Quality Act and its Guidelines. In fact the project as proposed by the City is in violation of state law.
Public participation is an essential part of the CEQA process. [See CEQA Guidelines Section 15201] Comments to the Draft EIR are an integral part of the [final] EIR. [See Sutter Sensible Planning, Inc. v. Board of Supervisions (3d Dist. 1981) 122 Cal.App.3d 813, 820 [176 Cal.Rptr. 342] ]
The courts have articulated and the CEQA Guidelines have restated, six separate grounds justifying the requirement that lead agencies must seek and respond to public comments: (1) "sharing expertise"; (2) "disclosing agency analysis"; (3) "checking for accuracy"; (4) "detecting omissions"; (5) "discovering public concerns"; and (6) "soliciting counterproposals". [See CEQA Guidelines Section 15200; see also Selmi, The Judicial Development of the California Environmental Quality Act (1984) 18 U.C. Davis Law Review 197,245]
Clearly the CSPA comments to the Draft EIR are in accordance with the six separate grounds justifying the requirement that the City must seek and respond to the CSPA comments to the Draft EIR, and that the Final EIR must also respond to said CSPA comments so that CEQA and its Guidelines are not violated.
We reference our comments to the Draft EIR of March 14, 1994 to this letter of comment. We reference the CSPA protest of March 25, 1991 to this letter of comment.
The State Water Board is the responsible agency under CEQA for this petition and the proposed project. We urge you and the State Water Board to comply fully with CEQA and its Guidelines should the State Water Board approve the City's Final EIR and the proposed project.
Rather than having you "pick and choose" the validity of each of the CSPA comments, we believe that a hearing should be held by the State Water Board to determine the adequacy of the Draft and Final EIR, the validity of the specific CSPA comments, and whether the proposed mitigation measures for the proposed project by the City will in fact reduce the direct, indirect and cumulative impacts to the environment to less than significant.
We are requesting the State Water Board to schedule a hearing on the City's petition and on the adequacy of the Draft and Final EIR for the proposed Salinas Reservoir Expansion Project. Please advise the State Water Board accordingly.
Please advise me when a hearing will be held by the State Water Board on this matter.
If there are any questions, I can be reached at my office at 916-283-3767 or at the Law Office at 916-283-1007.
Respectfully Submitted
_____________________________________________
Robert J. Baiocchi
For: California Sportfishing Protection Alliance, Protestant
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-283-3767 (CSPA Quincy Office) or 916-283-1007 (Law Office)
FAX: 916-283-5017
cc: Marc Del Piero, Member
State Water Resources Control Board
Mike Jackson, Counsel, CSPA
Tom Gregory, Paralegal
Mike Jackson Law Office
Jim Crenshaw, President, CSPA
Bill Jennings, Chairman, CSPA
City of San Luis Obispo
c/o Scott Slater
Hatch & Parent
21 East Carrillo Street
Santa Barbara, CA 93101-2782
Gary Henderson, General Manager
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93403
Interested Parties