State of California
Before the State Water Resources Control Board
CALMAT Company, Applicant
Water Right Application 30498
Application to Appropriate Water
Santa Clara River Subterranean Stream
Agua Dulce Creek Subterranean Stream Tributary
to Santa Clara River thence Pacific Ocean
County of Los Angeles
Public Trust Protest by the
California Sportfishing Protection Alliance
and Santa Barbara Urban Creeks Council
The California Sportfishing Protection Alliance (hereinafter known as "CSPA") and the Santa Barbara Urban Creeks Council (hereinafter known as "SBUCC") hereby file a public trust protest against the above mentioned water right application as follows:
1. The CSPA has standing with the SWRCB on water right matters pertaining to the appropriation and diversion of the state's water. The agent for the CSPA is Robert J. Baiocchi, Consultant, P.O. Box 357, Quincy, CA 95971.
2. The SBUCC also has standing with the SWRCB on water right matters pertaining to the appropriation and diversion of the state's water in southern California. The agent for the SBUCC is Brian Trautwein, Executive Director, SBUCC, 5771 Leeds Lane, Goleta, CA 93117.
3. We have reviewed the information in the public notice of October 11, 1996, regarding water right application 30498 by CALMAT Company.
We reference Notice of Application to Appropriate Water; Application 30498; Description of the Project; Application Information; Environmental Information; Procedures for Submitting Protests; Resolution of Protests; and Contact Person; Pages 1 through 4; State Water Resources Control Board; October 11, 1996.
4. In the Public Notice for Application 30498, the SWRCB stated that according to the California Environmental Quality Act and its Guidelines, the County of Los Angeles, Department of Regional Planning, is the lead agency and will be responsible for preparation of the appropriate environmental documents for the project and for determining whether or not the project will cause a significant effect on the environment.
The public notice did not include the contact person for the Los Angeles County Department of Regional Planning, nor did the public notice provide for a telephone number, nor did the public notice provide a mailing address.
Statement of Reasons for Public Trust Protest
Water Right Application 30498
5. The Applicant seeks a water right permit for year round direct diversion of 1.923 cfs not to exceed 1,354 acre-feet of water from the subterranean streams of the Santa Clara River and Agua Dulce Canyon Creek. The purpose of use is for domestic and mining operations.
Historical Information - The Steehead
6. The Santa Clara River Watershed sustains steelhead trout and their habitat as follows:
(a) The Santa Clara River system once supported a popular winter steelhead fishery based on its apparently large and consistent runs. The average annual run in the Santa Clara may have been on the order of about 9,000 adult steelhead.
(b) Steelhead migrated upstream through the lower Santa Clara River to reach spawning grounds in Santa Paula, Sespe, and Piru creeks, and perhaps in other tributaries and reaches of the upper Santa Clara itself
(c) "However, the steelhead stock has declined precipitously since the 1950's, primarily due to an increase in surface water diversions in the lower Santa Clara itself." Our Emphasis
(d) The steelhead decline has also been attributed, in part, to altered flow patterns and blocked access to historic spawning grounds by upstream dams.
(e) In 1991 Nehlsen et al.listed the Santa Clara River steelhead stock as having a high risk of extinction.
We reference Historic Review and Current Status of California Steelhead in Coastal Drainages South of San Francisco Bay; Robert Titus and Don Erman; Recent Report; at pages 141 and 142.
(f) Any reduction in streamflows in the Santa Clara River Watershed as a result of Application 30486 has the potential to have adverse cumulative impacts to steelhead and their habitat, and other public resources of the Santa Clara River.
The SWRCB and its staff need to prevent any adverse effects to steelhead and their habitat from Application 30498 and other water right permits issued by the SWRCB.
The Department of Fish and Game - Santa Clara River - The Steelhead - SWRCB Water Rights Decisions
7. In 1982, the State Water Resources Control Board (SWRCB) adopted Decision 1586 approving the appropriation of water from the Santa Clara River and its tributaries by United Water Conservation District (District) and the California Department of Water Resources (DWR). The application was protested by DFG on the basis that it would irreparably harm the steelhead resources of the Santa Clara River. In Decision 1586, the SWRCB required that a steelhead study be preformed and reserved jurisdiction to adopt new permit conditions upon the completion of the study.
In Water Right Order 87-8, the SWRCB found that the required study demonstrated the continued existence of the steelhead resources in the river. The SWRCB incorporated into Water Right Order 87-8 a prior agreement between the District and DFG to construct and operate a fish screen and fishway to prevent the entrainment of juveniles into the diversion canal and to facilitate migration of adults. The SWRCB also ordered a bypass requirement of 40 cfs for 48 hours after each storm event (when the flow in the river has subsided to 415 cfs) to facilitate migration. Emphasis Added
Finding by the California Department of Fish and Game
8. In February 1996, the Department of Fish and Game made the following recommendation as a result of a restoration management plan for steelhead in the Santa Clara River: "Instream flow studies should be undertaken on the mainstem Santa Clara River to determine necessary flows for steelhead." Emphasis Added
We reference Steelhead Restoration and Management Plan for California; Department of Fish and Game; February, 1996. at pages 204, 205 and 206 under Santa Clara River.
(a) The applicant proposes to cease diversion when the Santa Clara River's discharge at the proposed well site falls below .5 cfs. The applicant did not propose to cease diversions on Agua Dulce Canyon.
(b) The applicant should be required by the SWRCB and its staff to conduct instreamflow studies in the Santa Clara River, and also in Agua Dulce Canyon, to determine the daily amount of water necessary to maintain and protect all fish species and their habitat, and aquatic species and their habitat, and water quality, and other public trust resources in all water year types. i.e. wet, above normal, normal, below normal, dry, and critically dry water years.
(c) The applicant should also be required by the SWRCB and its staff to conduct instreamflow studies in the downstream areas of the Santa Clara River Watershed to determine whether the proposed diversion rate, and the proposed bypass flow requirement has any cumulative impacts to steelhead populations and habitat in the lower river during all water year types. i.e. wet, above normal, normal, below normal, dry, and critically dry water years. Our Emphasis.
Santa Clara River Watershed Management and Enhancement Plan
9. The State Coastal Conservancy, the U.S. Fish and Wildlife Service, and Los Angeles and Ventura counties are currently developing the Santa Clara River Watershed Management and Enhancement Plan. The purpose of the plan is to document existing resources and values; describe and analyze hydrologic, geomorphic, and water quality conditions and effects from human activity; identify significant problems and formulate alternatives to address the problems; and proposed specific implementation measures to enhance the river environment on the mainstem and on one or more representative tributaries. A draft of the plan should be completed by summer or fall 1996.
We reference Steelhead Restoration and Management Plan for California; Department of Fish and Game; February, 1996. at page 206.
The proposed project has the potential to conflict with the Santa Clara River Management and Enhancement Plan by reducing flows in the Santa Clara River year round, with cumulative impacts to steelhead migration (adults and juveniles) and habitat (all life stages), and other public trust resources.
The SWRCB has issued water rights on the Santa Clara River Watershed. The SWRCB and its staff should get involved in the development of the Santa Clara River Watershed Management and Enhancement Plan.
Proposed Listing of Steelhead - Santa Clara River
10. The U.S. National Marine Fisheries Service is proposing to list steelhead under the protection of the federal Endangered Species Act. The CSPA was a party among other parties that filed a petition to list steelhead in California, Oregon, Washington, and Idaho. The Santa Clara River is located in the NMFS Southern California ESU area. In that ESU area the steelhead are being proposed to be listed as endangered.
Reduction in River Flows - Application 30498
11. Steelhead, other fish species, and aquatic resources need water to survive. Water in the Santa Clara River flows downstream, but water diversions have significantly reduced the amount of water available for the steelhead and other public trust resources.
The proposed appropriation of 1.923 cfs or 1,354 acre-feet of water year round by the applicant in conjunction with other water right permits issued by the SWRCB will have a cumulative impact to the amount of water available for the steelhead (all life stages) in the downstream areas of the Santa Clara River during all water year types. i.e. wet, above normal, normal, below normal, dry, and critically dry water years.
The SWRCB should prepare a Steelhead Cumulative Impact Analysis for the Santa Clara River Watershed. That analysis should include all existing diversions and uses of the river approved by the SWRCB, including Application 30498. Only then will the SWRCB and its staff understanding and know the specific amounts of water needed for the steelhead and other public trust resources, and the amount of water available for appropriations under Appplication 30498 and any other water right application.
Wild Trout - Unarmored Threespine Stickleback
12. The Santa Clara River and Agua Dulce Canyon Creek may sustain wild trout and their habitat, including aquatic species and their habitat. Reduction in flows has the potential to adversely impact wild trout population and habitat (all life stages); and aquatic species and their habitat (all life stages) as a result of Application 30498.
The Unarmored Threespine Stickleback populations and habitat exist in the river environment. This species of fish could be extinguished as a result of the proposed year round appropriation regardless whether monitoring is conducted by the applicant and reported to the Department of Fish and Game.
The Proposed Project - Mining
13. The public notice did not expressly state that the proposed project will either be terrace mining or in-channel mining. However, it appears the applicant may mine the streambeds of the Santa Clara River and Agua Dulce Canyon Creek. Mining the streambeds has the potential to have significant adverse impacts to: fish species and their habitat; aquatic species and their habitat; riparian habitat; water quality; wildlife and their habitat; wetlands; downstream recruitment of gravel for steelhead spawning; vegetation; and channel destabilization causing downstream flooding related problems, etc.
In Northern California, in-channel mining has caused significant adverse impacts to the stream environment as well as to downstream Cal Trans bridge structures. i.e. Stony Creek, a tributary to the Sacramento River.
The proposed project will have 19 separate desilting basins with the potential to adversely affect water quality and the channel environment by depositing sediment in the downstream areas of the Santa Clara River as well as the Agua Dulce Canyon Creek.
The CSPA and SBUCC believe the proposed project has the potential to cause significant adverse direct, indirect, and cumulative impacts to the public trust resources and environments of the Santa Clara River and Agua Dulce Cannyon. Consequently, the SWRCB and its staff should advise the Los Angeles Department of Regional Planning that an Environmental Impact Report should be prepared for the proposed project and the proposed appropriation of water.
The CEQA Process and the CEQA Document for the Proposed Project
14. As stated beforehand and as shown in the public notice, the County of Los Angeles Department of Regional Planning will prepare a CEQA document for the proposed project under Application 30498 in accordance with CEQA and its Guidelines.
The Environmental Unit of the Division of Water Rights must engage the CEQA process for the proposed project prior and during the preparation of the CEQA document so that the document discloses, evaluates, and mitigates all of the potential adverse direct, indirect, and cumulative impacts associated with the proposed appropriation and the effects to steelhead and their habitat and other public trust resources.
Water Availabilty Analysis
15. The SWRCB has a duty to determine whether there is water available in the Santa Clara River Watershed for appropriations for Application 30498.
We are requesting the SWRCB and its staff to conduct a water availability analysis to determine the amount of water available in the Santa Clara River Watershed; and the available season of diversions.
The Value of Water - Southern California
16. It is no secret that water in southern California has a significant value. It also is no secret the applicant could acquire the water right permit and then turn around (now or later) and transfer the water right to other points of uses and purpose of uses by simple filing a change petition. i.e. 1354 acre-feet of water (Application 30498) @ $800 per acre-foot has a value of $1,083,200 annually.
In the event the SWRCB decides to issue a water right permit to the applicant, specific conditions in the permit should prohibit the use of the water for any other purposes other then mining, and domestic uses associated with mining.
Legal Basis of Public Trust Protest
17. This public trust protest is based on the following:
(a) Public Trust Doctrine;
(b) California Fish and Game Code 5937;
(c) Section 782; CCR; Title 23;
(d) Federal Endangered Species Act;
(e) California Environmental Quality Act and its Guidelines;
(f) California Water Code;
(g) Article X, Section 2; California Constitution;
(h) Other applicable state and federal law and regulations.
The Key Issues
18. The staff of the Division of Water Rights decides on key issues at the SWRCB hearing. Privately, the SWRCB may also decide. The following are the key issues which should be included in any hearing for Water Right Application 30498:
a). Is there sufficient water available for appropriation for the proposed project under Application 30498? During what season and during what types of water years is the water avialable?
b). What are the specific cumulative impacts to steelhead and their habitat (all life stages), and other public trust resources in the Santa Clara River during all water year types as a result of the proposed project under Application 30498?
c). What are the specific impacts to water quality in the Santa Clara River as a result of the proposed project under Application 30498?
d). What are the specific impacts to public trust resources in Agua Dulce Canyon during all water year types as a result of the proposed project under Application 30498?
e). What are the specific impacts to water quality in Agua Delce as a result of the proposed project under Application 30498?
f). Is the proposed project under Application 30498 consistent with the DFG 1996 Steelhead Restoration and Management Plan for California?
g). Is the proposed project under Application 30498 consistent with the Santa Clara River Watershed Management and Enhancement Plan.
h). Is the proposed project under Application 30498 consistent with the NMFS Steelhead Recovery Plan for the Santa Clara River. (Presuming the steelhead are listed under ESA when the appplication is heard by the SWRCB).
Request for Additional Information
19. The CSPA and SBUCC request the following information from the staff of the SWRCB:
(a) A copy of Application 30498, which includes the environmental document prepared by the applicant;
(b) Copies of all protests against Application 30498 after the deadline period;
(c) The name of the contact person, telephone number, and mailing address of the County of Los Angeles, Department of Regional Planning;
(d) The SWRCB staff should advise the Los Angeles Department of Planning that it should provide all CEQA documents for the proposed project to all protestants, such as the CSPA/SBUCC;
(e) Copies of all studies prepared by the applicant for Application 30498 which are submitted to the SWRCB and its staff;
(f) A copy of any and all amendments to Application 30498 submitted by the applicant to the SWRCB;
(g) The CSPA and SBUCC request the oportunity to provide comments to the SWRCB regarding any mitigated Negative Declaration which may be prepared by the County of Los Angeles;
(h) In the event an EIR is prepared for the proposed project under Application 30498, the CSPA request copies of the NOP and draft EIR so that we have the opportunity to provide comments to the County of Los Angeles and the SWRCB.
Dismissal Terms and Conditions
We have no dismissal terms and conditions at this time until we have reviewed the draft and final environmental document for proposed project under Application 30498. In the event the CEQA document is deficient, we will advise the SWRCB and its staff.
We are requesting the opportunity to amend this protest, if necessary.
Respectfully Submitted
_________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
and Santa Barbara Urban Creeks Council
P.O. Box Box 357
Quincy, CA 95971
Bus Tel: 916-836-1115 or 916-283-3767; Fax: 916-283-5017
Dated: November 5, 1996
Certificate of Service
Larry Attaway, Chief
Hearing Unit
Division of Water Rights - SWRCB
P.O. Box 2000
Sacramento, CA 95812-2000
(Original)
Ed Dito, Chief
Application Unit
Division of Water Rights - SWRCB
P.O. Box 2000
Sacramento, CA 95812-2000
Steve Herrera
Environmental Unit
Division of Water Rights - SWRCB
P.O. Box 2000
Sacramento, CA 95812-2000
Attn: Environmental Issues
Jim Canaday
Environmental Unit
Division of Water Rights - SWRCB
P.O. Box 2000
Sacramento, CA 95812-2000
Attn: Environmental Issues
James Lecky, Chief
Protected Species
Management Division
U.S. National Marine Fisheries Service
501 West Ocean Blvd, Suite 4200
Long Beach, CA 90802- 4213
Attn: Steelhead Listing - ESA
Wayne White, State Supervisor
c/o Joel Medlin, Field Supervisor
U.S. Fish and Wildlife Service
3310 El Camino Avenue, Suite 130
Sacramento, CA 95821-6340
Attn: Steelhead - ESA
Jerry Mensch, Water Rights
Environmental Services
Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
Mike Sherwood, Esquire
Sierra Club Legal Defense Fund
180 Montgomery Street, Suite 1400
San Francisco, CA 94104
Attn: Endangered Species Act - Steelhead
Steve Volker, Esquire
Sierra Club Legal Defense Fund
180 Montgomery Street, Suite 1400
San Francisco, CA 94104
Attn: SWRCB Water Rights
Richard Roos-Collins, Esquire
Natural Heritage Institute
114 Sansome Street, Suite 1200
San Francisco, CA 94104
Attn: SWRCB Water Rights
Mike Jackson, Esquire
P.O. Box Drawer 207
Quincy, CA 95971
Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Avenue, Suite D
Woodland, CA 95695
Bill Jennings, Chairman
California Sportfishing Protection Alliance
3536 Rainier Avenue
Stockton, CA 95204
Ray Cole, CSPA Board
2874 Calariva Drive
Stockton, CA 95204
Jim Edmondson, Executive Director
California Trout
9770 Sombra Terrace
Shadow Hills, CA 91040
CALMAT Company, Applicant
c/o G. Thomas Davis
P.O. Box 2950, Terminal Annex
Los Angeles, CA 90051
Interested Parties