Roger Patterson, Regional Director September 24, 1993
Bureau of Reclamation
U.S. Department of the Interior
2800 Cottage Way
Sacramento, CA 95825
Cachuma Project Authority
3301 Laurel Canyon Road
Santa Barbara, CA 93105-2017
Santa Barbara County Water Agency
122 W. Figueroa Street, Suite B
Santa Barbara, CA 93101
Re: Notice of Preparation of a Draft Environmental Impact Statement/Environmental Impact Report Associated with the Cachuma Project Contract Renewal for the U.S. Bureau of Reclamation, Santa Barbara County Water Agency and Cachuma Project Authority; Scoping Comments by the California Sportfishing Protection Alliance.
The U.S. Bureau of Reclamation (Bureau), the Santa Barbara County Water Agency (Agency), and the Cachuma Project Authority (Authority) will jointly prepare an Environmental Impact Statement/Environmental Impact Report (Draft EIS/EIR) for contract renewals associated with the Bureau's Cachuma Project which is located on the Santa Ynez River in Santa Barbara County. The Bureau will be the lead agency under the National Environmental Policy Act (NEPA), and the Agency and the Authority will be co-lead agencies under the California Environmental Quality Act (CEQA). According to the NOP Notice, the Bureau will publish a Notice of Intent (NOI) in the Federal Register and will be issuing public notice.
The Bureau, the Agency and the Authority are soliciting comments from interested parties as to the scope, identification of significant environmental issues, alternatives, mitigation or compensation measures and the content of the environmental information to be included in the Draft and Final EIS/EIR. The Bureau, the Agency, and the Authority claim that "as appropriate, interested parties should remark on the information which is applicable to the statutory responsibilities of the Bureau, the Agency, and Authority in connection with the proposed project". We reference the NOP, dated August 30, 1993.
Scoping Comments by the California Sportfishing Protection Alliance
1. The CSPA filed a complaint with the State Water Resources Control Board regarding the operation of the Cachuma Project by the Bureau of Reclamation on November 13, 1987. This complaint alleged that the Santa Ynez River supported a run of several thousand steelhead [southern] prior to the construction and operation of the Cachuma Project. The CSPA complaint contended that the operation of the project had reduced this run to a small remnant of the pre-project fishery and that this constituted a misuse of water within the meaning of Article X, Section 2 of the State Constitution and a violation of Section 5937 of the California Fish and Game Code. State Water Board Order WR 88-2 directed the Bureau of Reclamation, the CSPA, and other interested parties including but not limited to the Department of Fish and Game to hold discussions to see if the concerns raised in the CSPA complaint could be resolved. The CSPA met with the Bureau, but were unable to resolve their differences. State Water Board Order WR 89-18 directed the Division of Water Rights to promptly prepare for and schedule a State Water Board hearing on the CSPA complaint.
Steve Jordan, a farmer whose operations are located near the mouth of the Santa Ynez River below Lompoc, filed a complaint on August 21, 1989. This complaint alleged that the Montecito Water District was making unauthorized diversions that were causing both water quantity and water quality problems in the Lompoc area as well as causing environmental damage to instream uses of water (i.e. steelhead trout fishery). The parties involved were not able to resolve their differences. The Jordan compliant was heard by the State Water Board at the same time the CSPA complaint was heard by them.
A hearing was held by the State Water Resources Control Board in July and August, 1990 regarding both complaints. As a result of the hearing the State Water Board did not take any administrative action in amending the Bureau's water right permit and ordering the Bureau to release water from Bradbury Dam for the fishery resources in accordance with state law. However, the former Chairman of the State Water Board transmitted a letter to all parties, dated December 20, 1990, which is an attachment to the CSPA scoping comments. We reference the State Water Board hearing record of July and August, 1993.
2. The Cachuma Project adversely extinguished the pre-project annual run of southern steelhead trout in the Santa Ynez River because the State Water Resources Control Board did not order mandatory streamflow requirements in the Bureau's water right permit when it was issued to the Bureau to sustain the southern steelhead and other fish species in the river below Bradbury Dam to the Pacific Ocean. The annual run of pre-project southern steelhead trout was between 15,000 to 25,000 fish. Fish and aquatic species and their habitat need water to survive. The operations of the Cachuma Project must be modified in comjunction with the contract renewals which balances the uses of water and provides water for the fish and wildlife resources in the river, and also water for the water users.
The Draft EIS/EIR must include the necessary information and data to answer the following questions:
a) What was the nature and extent of the pre-Cachuma Project southern steelhead trout fishery in the Santa Ynez River?
b) What is the nature and extent of the southern steelhead trout fishery in the Santa Ynez River today?
c) What are the causes of the decline of the southern steelhead trout fishery?
3. Due to heavy rainfall last winter and this spring, large amounts of water were released from Lake Cachuma (Bradbury Dam) into the lower Santa Ynez River to the Pacific Ocean for the first time in a number of years. Bradbury Dam is 47 and 1/2 miles from the ocean. During the winter and early spring, large rainbow trout/southern steelhead trout and other fish species were observed in the Santa Ynez River. Rainbow trout can either live in freshwater year round or they migrate out to sea as young fish and return to spawn when they reach adulthood. If they go to sea, they are known as steelhead trout. The presence of fish within the river renewed interest by the CSPA in requiring daily flow requirements from Bradbury Dam to sustain the fishery resources in the river.
4. To develop better scientific information on the fish inhabiting the Santa Ynez River and other conditions such as water quality (water temperatures), a Technical Advisory Committee (TAC) was established. The TAC represents a cooperative effort to coordinate the collection and sharing of information on the river system. The CSPA is a party to the TAC, which includes state and federal fish and wildlife agencies, water districts, local interests and the Bureau.
5. Results of fisheries surveys conducted to date (August 12, 1993), have shown that a variety of fish inhabit the Santa Ynez River. Fish observed during the surveys include largemouth bass, catfish, mosquito fish, sticklebacks, sunfish, chubs, and trout. Based on observations and reports this winter it was expected that both adult and juvenile trout [southern steelhead] would be present, potential in relatively large numbers. However, results of fisheries investigations have not shown the presence of juvenile inhibiting the mainstem Santa Ynez River, although a limited number of juveniles have been observed within El Jaro and Salsipuedes Creeks which are tributary to the Santa Ynez River. Factors contributing to the apparent low reproductive success of trout remain under investigation by the TAC. (DFG Information - August 12, 1993 - Draft Overview Santa Ynez River Fisheries Investigations)
Also the following fish species were documented in the Santa Ynez Estuary in 1987. Those species are: Pacific herring, rainbow trout, Arroyo Chub, Mosquitofish, Topsmelt, Shinnerperch, Threespine stickleback, Tidewater goby, Prickly sculpin, Pacific staghorn sculpin and Starry flounder. We reference Page B-1; Appendix B; Enlargement of Lake Cachuma and Bradbury Dam Safety Modifications; Department of Water Resources and U.S. Bureau of Reclamation; November, 1990.
Southern steelhead trout utilize tributaries to the Santa Ynez River to survive. i.e. spawning, rearing, resting and food producing habitat. In order for the juvenile fish to migrate to the Pacific Ocean, the juvenile fish need flows in the Santa Ynez River. Adult southern steelhead need flows in the Santa Ynez River for migration purposes. Unlike salmon, steelhead trout adults migrate back to the Pacific Ocean and return to spawn again.
The Draft EIS/EIR must evaluate the impacts to southern steelhead and their habitat (spawning, rearing, resting, food producing and migration) in the Santa Ynez River resulting from: (a) the long term operations of the Cachuma Project; (b) the operations of the Cachuma Project with daily flow releases as agreed to during the interim period between the Department of Fish and Game, water users and the Bureau; (c) various flows as identified in DWR's IFIM fishery flow study of the Santa Ynez River; and (d) a flow of water in the river which connects Bradbury Dam with the lagoon at all times.
The Draft EIS/EIR should include the magnitude and duration of daily releases which are necessary to maintain various levels of southern steelhead trout and other fish and aquatic species and their habitat in the Santa Ynez River from Bradbury Dam to the Pacific Ocean.
6. In addition to fisheries monitoring, water quality and habitat suitability are also being evaluated on the mainstem Santa Ynez River and tributaries. Exposure to elevated water temperatures was identified as a concern regarding the suitability of the Santa Ynez River for various fish species. (DFG Information - August 12, 1993 - Draft Overview Santa Ynez River Fisheries Investigations)
To provide information on seasonal trends in water temperatures a network of continuously recording temperature monitoring stations has been established as part of the cooperative effort. Results to date have confirmed that water temperature is a key factor in determining suitability of fisheries habitat on the Santa Ynez River. Other water quality parameters are also being evaluated. (DFG Information - August 12, 1993 - Draft Overview Santa Ynez River Fisheries Investigations)
Cold water fish species such as southern steelhead trout and rainbow trout need cold water to survive. i.e. spawning, rearing, resting and food producing habitat. The Draft EIS/EIR must include the results of water temperature surveys and studies at different locations in the Santa Ynez River between Bradbury Dam and the Pacific Ocean. The Draft EIS/EIR must evaluate the potential adverse impacts to cold water species and their habitat from the existing operations of the Cachuma Project. The Draft EIS/EIR must also evaluate the potential adverse impacts to cold water species and their habitat from flows ageed upon by the Department of Fish and Game, water users, and the Bureau commencing from the period when the valve at Bradbury Dam was closed and reopened in June, 1993.
7. " During the spring of 1993 the Bureau, at the request of TAC and other parties, modified operations at Bradbury Dam to increase short-term storage of water within Lake Cachuma. The increased storage volume (reservoir surcharge) has been used to maintain a release of 10 cfs from Bradbury Dam to provide fisheries habitat within the Santa Ynez River. The short-term 10 cfs release will continue through at least September 1, 1993 as established through a Memorandum of Understanding (MOU) signed by the California Department of Fish and Game, U.S. Bureau of Reclamation, and local water districts. Scientific data on the fisheries populations inhabiting the river and water temperature monitoring results collected by TAC participants provided the technical foundation for interim flow recommendations adopted by the MOU. Additional scientific data is currently being evaluated by the TAC for use in developing subsequent management recommendations. " (DFG Information - August 12, 1993 - Draft Overview Santa Ynez River Fisheries Investigations)
We seriously question whether the scientific information and data provided a technical foundation to support of flow of 10 cfs from Bradbury Dam to keep in good condition all fish species and their habitat in the Santa Ynez River to the lagoon. It is clear the 10 cfs flow was based on the amount of water surcharged into Cachuma Reservoir and not the biological needs of the fisheries, and sensitive, rare, threatened and endangered species.
The Santa Ynez River watershed also sustain the following sensitive, rare, threatened and endangered species and their habitat: (a) Bald Eagles, (b) Least Bell's Vireo, (c) California Least Tern, (d) Brown Pelican, (e) Peregrine Falcon, (f) Santa Ynez Lupine, (g) Willow Flycatcher, (h) Tricolored Blackbird, (i) California Tiger Salamander, (j) California Red-legged Frog, (k) Southwestern Pond Turtle, (l) Southern Steelhead Trout, and (m) others.
The U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service are federal fish and wildlife agencies. They are responsible for protecting sensitive, rare, threatened and endangered species. They are a party to the TAC, however they did not sign the MOU and may not have agreed to the conditions in the MOU. The Bureau is required to consult with USFWS and USNMFS.
The Fish and Wildlife Coordination Act [16 USC Section 661 et seq.] requires federal agency such as the Bureau to consult with the USFWS, USNMFS and the DFG before undertaking projects that control or modify surface water. This consultation is intented both to promote the conservation of wildlife resources by preventing loss or damage to wildlife resources and to provide for the development and improvement of wildlife resources in connection with water projects. Federal agencies are required to include in project reports recommendations made by the USFWS and state fish and wildlife agencies, to give full consideration to these recommendations, and to include in project plans justifiable means and measures for wildlife purposes.
We reference the U.S. Fish and Wildlife Coordination Act and the U.S. Endangered Species Act. It appears to the CSPA that both Acts were violated because the USFWS and USNMFS were not parties to the MOU and the conditions in the MOU may have violated the U.S. Endangered Species Act and the U.S. Fish and Wildlife Coordination Act..
The mitigation measures and protection measures in the Draft EIS/EIR for sensitive, rare, threatened and endangered species in the Santa Ynez River must be in compliance with the requirements of the U.S. Endangered Species Act and the U.S. Fish and Wildlife Coordination Act. The terms and conditions in the contract renewals between the Bureau and water agencies must also be in compliance with the U.S. Endangered Species Act, U.S. Fish and Wildlife Coordination Act, Section 5937 of the California Fish and Game Code, and other applicable laws.
8. At a meeting with the Bureau between the CSPA and the water users, the Bureau made a commitment to mimic nature and release water from Bradbury Dam to keep the southern steelhead below the dam in good condition. At the following meeting the Bureau decided not to implement this recommendation.
At noon on June 18, 1993 the Bureau shut the valve off at Bradbury Dam. The inflow into Cachuma Reservoir with a full reservoir was about 67.5 cfs. On June 19, 1993, the valve was still closed, but the inflow into a full Cachuma Reservoir was about 66.5 cfs. On June 20 and 21, 1993 the valve was still closed, and the inflow into a full Cachuma Reservoir was 61.5 and 42 cfs. The valve was opened on June 22, 1993. The release was 7 cfs. The inflow into a full Cachuma Reservoir was about 46 cfs. Between June 23 to June 30, 1993, the release from the dam was still 7 cfs, but the inflow into the full Cachuma Reservoir ranged from 23.5 cfs to 74.5 cfs. From July 1 to July 26, 1993, the release was still 7 cfs, but the inflow into the full Cachuma Reservoir ranged between 10.5 cfs to 42.5 cfs. (CSPA Data)
Had the Bureau followed through with their original commitment, the flow from Bradbury Dam would have ranged between 10.5 to 74.5 cfs between June 18 to July 26, 1993.
The Draft EIS/EIR should include an hydrology analysis to show the daily amounts of inflow into Cachuma Reservoir which could be released from Bradbury Dam when Cachuma Reservoir is at full capacity to sustain the fishery resources from the dam to the ocean.
9. We have reviewed the NOP. Under "Alternatives" on page 8 the notice states as follows: " The following may represent actions, elements or features with an alternative that requires modification to the terms and conditions. These include, but are not limited to, the following: "
" Environmental Considerations
- instream flows
- water quality
- fish and wildlife resources "
We believe the Bureau and all terms and conditions in contract renewals must comply with state and federal law, and not simply to consider complying with the law. To state that the Bureau, the Agency, and the Authority may consider instream flows, water quality and fish and wildlife resources is in total conflict with state and federal law. The Bureau must modify the operations of the Cachuma Project so that instream flows from Bradbury Dam are maintained in adequate amounts at all times to keep the southern steelhead trout and other fish species in the river in good condition.
Secondly, the Bureau, the Agency, and the Authority do not have the discretion not to comply with federal and state law with respect to protecting sensitive, rare, threatened and endangered species. It is not a matter of considering whether to protect these species, the federal Endangered Species Act require that listed species and their habitat are not jeopardized, and that the Bureau's operation of the Cachuma Project must comply with recovery plans for each listed species.
Finally, the fish and wildlife resources of the Santa Ynez River are public trust assets and are the property of the people of the State of California. We believe the Bureau, the Agency, and the Authority do not have the discretion to give away public trust assets for self serving purposes because we believe that constitutes "unjust enrichment" (taking of water) and a trespass (taking of public trust resources).
We are requesting all alternatives in the Draft EIS/EIR for the operations of the Cachuma Project in conjunction with contract renewals contain mandatory streamflow requirements, water temperature requirements, and protection and restoration measures for all fish and wildlife species affected by the operations of the project.
10. We are requesting the Draft EIS/EIR include a "Cumulative Environmental Impact Analysis" of the entire Santa Ynez River watershed from the headwaters to Surf. The following was stated by the Chairman of the State Water Resources Control Board after the hearing on the Santa Ynez River:
" 1. A cumulative environmental impact report must be prepared because the projects for which applications have been filed can have cumulatively significant effects not addressed in the environmental papers prepared for the individual projects (Several applicants have prepared only negative declarations for their projects). Evidence introduced during our hearing sessions in July and August of 1990 demonstrated a variety of significant environmental impacts that can only be addressed in a cumulative environment impact report. "
We reference " A Final Decision on the Applications Before the State Water Resources Control Board in the Consolidated Santa Ynez River Hearing is not Possible Within the Next Two to Three Years"; W. Donald Maughan, Chairman, SWRCB; December 20, 1990. (See Attachment)
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)
The recommended "Cumulative Impact Analysis" for the entire Santa Ynez River watershed must evaluate and mitigate the cumulative impacts to:
(a) The pre-project and post-project southern steelhead trout populations and habitat in the Santa Ynez River watershed (and tributaries) from Bradbury Dam to the Pacific Ocean.
The cumulative analysis on southern steelhead trout must include information, data and studies on all impacts to this species and habitat (spawning, rearing, resting, food producing and migration) from the management of water from the operations of the Cachuma Project, the operations of Gibraltar Reservoir, the operations of Jameson Reservoir; the operations of all other diversions above Cachuma Reservoir, and the diversion and pumping of water by all water users between Bradbury Dam to the Pacific Ocean.
(b) Resident trout populations and habitat in the Santa Ynez River watershed, in and above Cachuma Reservoir to the headwaters of the Santa Ynez River.
The cumulative impact analysis on resident trout must include information, data and studies on all impacts to this species and habitat from the lack of mandatory daily flow requirements from Gibraltar Dam, Jameson Dam and by other water diversions above Cachuma Reservoir.
(c) Aquatic species and habitat in the Santa Ynez River watershed from Bradbury Dam to the Pacific Ocean, and in and above Cachuma Reservoir to the headwaters of the Santa Ynez River.
The cumulative impact analysis on aquatic species must include information, data and studies on all impacts to all aquatic species and their habitat from from the operations of the Cachuma Project, the operations of Gibraltar Reservoir, the operations of Jameson Reservoir; the operations of all other diversions above Cachuma Reservoir, and the diversion and pumping of water by all water users between Bradbury Dam to the Pacific Ocean.
(d) All fish species populations and their habitat in the Santa Ynez River watershed below Bradbury Dam to the Pacific Ocean and in and from Cachuma Reservoir to the headwaters Santa Ynez River.
We have cited the fish species found in the Santa Ynez River Estuary. We also cited the fish species observed in the river in 1993.
The cumulative impact analysis on fish species must include information, data and studies on all impacts to all fish species and their habitat from the operations of the Cachuma Project, the operations of Gibraltar Reservoir, the operations of Jameson Reservoir; the operations of all other diversions above Cachuma Reservoir, and the diversion and pumping of water by all water users between Bradbury Dam to the Pacific Ocean.
e) All sensitive, rare, threatened and endangered fish, aquatic, bird, wildlife and plant species in the Santa Ynez River watershed from the Pacific Ocean to the headwaters of the Santa Ynez River.
The Santa Ynez River watershed sustains the following sensitive, rare, threatened and endangered species and their habitat: (a) Bald Eagles, (b) Least Bell's Vireo, (c) California Least Tern, (d) Brown Pelican, (e) Peregrine Falcon, (f) Santa Ynez Lupine, (g) Willow Flycatcher, (h) Tricolored Blackbird, (i) California Tiger Salamander, (j) California Red-legged Frog, (k) Southwestern Pond Turtle, (l) Southern Steelhead Trout, and (m) others.
The cumulative impact analysis must include information, data and studies on sensitive, rare, threatened and endangered fish, aquatic, bird, wildlife and plant species and evaluate all impacts to these species and their habitat from the operations of the Cachuma Project, the operations of Gibraltar Reservoir, the operations of Jameson Reservoir; the operations of all other diversions above Cachuma Reservoir, and the diversion and pumping of water by all water users between Bradbury Dam to the Pacific Ocean.
The Draft EIS/EIR must include Biological Opinions from the applicable federal fish and wildlife agencies, and must also include recovery plans. Mitigation measures in the Draft EIS/EIR must comply with the BO's and recovery plans. The terms and conditions in the contract renewals must also comply with the BO's and recovery plans.
f) Riparian habitat in the Santa Ynez River from the Pacific Ocean to the headwaters of the Santa Ynez River.
The Draft EIS/EIR should include a discussion and answer the following questions:
a) Was was the nature and extent of the pre-Cachuma riparian vegetation along the lower and upper Santa Ynez River?
b) In what manner did wildlife rely upon this vegetation?
c) Has this vegetation been adversely impacted since inception of the Cachuma Project? If so, have these impacts adversely effected wildlife or are there other factors such as urban encroachment which have adversely impacted the wildlife?
d) If a decline in riparian vegetation has led to adverse impacts to wildlife, is the Cachuma Project solely responsible or are other diverters also responsible?
e) What magnitude and duration of releases are necessary to maintain and restore adequate levels of riparian vegetation along the lower and upper Santa Ynez River?
The Draft EIS/EIR should evaluate and mitigate the impacts to riparian habitat along the river and the effects from flow diversions to said riparian habitat. There are a number of riparian dependent species which utilize riparian habitat. This riparian analysis should also include all impacts to riparian dependent species.
11. Other past, ongoing and proposed projects which must be evaluated and mitigated, and included in the cumulative impact analysis are as follows:
a) Past and ongoing operation of Cachuma, Gibraltar and Jameson Reservoirs.
These projects have altered the flow regime in the Santa Ynez River by exporting water out of the watershed and by storing and regulating runoff. Changes in the flow regime have significantly affected vegetation, fish and wildlife resources, and water quality. The blockage of the Santa Ynez River by Bradbury Dam prevents southern steelhead from reaching spawning habitat in the upper Santa Ynez River. The lack of mandatory daily minimum streamflows from Gibraltar Dam effects fishery resources and their habitat.
b) Past and ongoing ground water use.
Use of ground water resources in the Santa Ynez River Valley has contributed to a reduction in furface flows available to support fisheries and riparian vegetation. The Department of Water Resources estimated that ground water pumpers in the Santa Ynez River Conservation District have pumped 45,000 acre-feet of waterin one year from Santa Ynez ground water basins.
c) Past and ongoing urbanization.
The development and growth of communities in the Santa Ynez River Valley has significantly affected environmental resources through conversion of land to urbanized use, consumption of natural resources, generation of wastes, and displacement of native vegetation and wildlife habitat.
d) Past and ongoing agricultural activities.
Agricultural activities in the Santa Ynez Basin have significantly changed vegetation types along the river corridor as well as throughout the Santa Ynez River watershed. Use of fertilizers, pesticides, and other agricultural chemicals also adversely affect fish, wildlife, and water quality in the Santa Ynez River.
e) Ongoing and proposed flood control activities by the Santa Barbara County Flood Control and Water Conservation District.
The Santa Ynez River below Bradbury Dam, in both the Santa Ynez Valley and the Lompoc Valley is subject to route maintenance by the Santa Barbara County Flood Control and Water Conservation District which includes brush removal and reshaping of the channel. The maintenance work has the potential to adversely impact southwestern pond turtle and California red-legged frog, and also riparian habitat known to support a number of species, including the tri-colored blackbird and willow flycatcher.
f) On going sand gravel operations.
Degradation of the Santa Ynez riverbed near Solvang and Buellton has been high, and gravel mining is thought to influence this (McManus, 1989). Expansion of the sand and gravel operations could increase the rate of degradation, further degrade the river habitat, and reduce the habitat potentially available to southern steelhead and other species.
g) Proposed Lompoc PLain Ground Water Basin Recharge Project by the Santa Ynez River Water Conservation District.
In 1978, three dikes were constructed across the Santa Ynez River to form shallow holding ponds and thereby increase percolation in the river bed. Off-road vehicle use and a flood on the Santa Ynez River in 1983 destroyed the dikes. The Santa Ynez River Water Conservation District has a water permit extension pending before the State Water Resources Control Board for diversion of up to 40,000 acre-feet per year for ground water recharge in the Santa Ynez River channel. The addition diversion of water downstream of Cachuma could adversely affect southern steelhead by reducing flows, which might restrict access to Salsipuedes Creek spawning grounds.
h) Mitigation measures for cumulative impacts in the Santa Ynez watershed.
Many activities could cumulatively affect the southern steelhead trout fishery, riparian vegetation, and other water-dependent resources of the Santa Ynez River. The State Water Resources Control Board is considering the resources of the entire watershed and has the authority to require certain actions, if feasible, to mitigate project impacts. The Bureau can modify the operations of the Cachuma Project in conjunction with the contract renewals to mitigate the cumulative impacts caused by their project. Cumulative impacts resulting from land use practices could be mitigated by local agency enactment of land-use control regulations. The development of restoration and management plan for the entire Santa Ynez River watershed could also reduce cumulative impacts to less than significant.
12. The former Chairman of the SWRCB further stated in his letter of December 20, 1990 following the Santa Ynez River hearing:
" 3. Potential mitigation measures for public trust uses of water, such as measures for the remnant steelhead fishery and for rare and endangered species and related habitat must be evaluated. A representative of most of the water purveyors in Santa Barbara County, recommended during our August hearing that a task force be established to investigate all types of fishery mitigation measures and report back to the State Water Board. A thorough understanding of the river's hydrology will be necessary in order to evaluate flow oriented mitigation measures and their impacts on municipal water supplies."
" The Santa Ynez River TAC is currently developing the necessary scientific and technical basis for establishing a long-term management plan for the Santa Ynez River system. Development of the management plan includes consideration of results of fisheries and water quality monitoring, habitat assessment, and water supply availability as part of a balanced, long term planning effort. Development of the management plan will recognize and consider water supply needs for both environmental enhancement and municipal and agricultural demands. The long-term plan will also consider changes in fishing regulations and other habitat management activities designed to protect and improve conditions for fisheries populations within the Santa Ynez River system. Development of the long-term management plan represents a continuing cooperative effort among resource agencies, environmental interests, and the water industry for the Santa Ynez River system. " (See (DFG Information - August 12, 1993 - Draft Overview Santa Ynez River Fisheries Investigations)
The Department of Fish and Game's description of a long-term management plan for the Santa Ynez River is deficient. First the long-term management plan should provide for the restoration of the steelhead trout fishery, the restoration of other fish and aquatic species, the restoration of all sensitive, rare, threatened and endangered species, the restoration of wildlife species, riparian habitat, and the ecosystem of the river. The DFG description only addresses the fisheries, and does not call for a restoration management plan for the ecosystem of the river.
The Draft EIS/EIR must include a long term fish and wildlife and ecosystem restoration management plan for the Santa Ynez River watershed from Bradbury Dam to the Pacific Ocean. The long term management plan must include modifications to the operations of the Cachuma Project by the Bureau in conjunction with contract renewals. The plan must include flow recommendations based on the results of fishery studies and other restoration, protection and improvement measures which restores the steelhead trout populations and habitat, sensitive, rare, threatened and endangered fish, wildlife, and plant species, and the the ecosystem of the Santa Ynez River. The Draft EIS/EIR must develop a reasonable target number to restore the southern steelhead fishery. Because of the significantly reduced populations southern steelhead caused by the operations of the Cachuma Project, the restoration management plan should include the planting of "wild southern steelhead trout" into the waters of the Santa Ynez River to mitigate for past damages.
13. The Draft EIS/EIR must include alternatives which modifys the operations of the Cachuma Project, modifys the existing contract agreements and restores the ecosystem (all fish and wildlife species) of the Santa Ynez River watershed affected by the operations of the Cachuma Project and said contracts.
Like the requirement to describe mitigation measures within an EIR, the requirement to set forth project alternatives within the document is also crucial to CEQA's mandate that avoidable significant environmental damage be avoided where feasible. (Section 21002; CEQA Guidelines, sections 15002, subd. (a)(3), 15021, subd. (a)(2), 15126, subd. (d).)
To allow agencies to effectuate this substantive requirement at the findings stage of the CEQA process, EIRs must produce information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned. A draft EIR thus must describe a range of reasonable alternatives to the proposed project, or to its location, that could feasibly attain the project's basic objectives, and must evaluate the comparative merits of each alternative. (CEQA Guidelines, section 15126, subd. (d); section 21100, subd. (d).)
The discussion of the project must focus on alternatives capable of either eliminating any significant adverse environmental effects or reducing them to a level of insignificance, even if such alternatives would be more costly or to some degree would impede the project's objectives. (CEQA Guidelines, section 15126, subd. (d((3).)
One of the alternatives analyzed must be the "no project alternative". It must describe what condition or program preceded the project. If the no project alternative is environmentally superior to all others, the EIR must also identify which of the others, as among themselves, causes the least environmental damage. (CEQA Guidelines. section 15126, subd. (d)(2).)
We are requesting the following alternatives be evaluated in the Draft EIS/EIR:
a) The "no project alternative" We are requesting a detailed analysis for this alternative. The "no project alternative" must include mandatory daily streamflow requirements and releases from Bradbury Dam to protect, restore and mitigate impacts caused by the operations of the Cachuma Project.
b) Modification of the Operation of the Cachuma Project in conjunction with the Desalination Project being on line at all times, with fish and wildlife, and ecosystem restoration, mitigation and protection measures for the river. This alternative should include having the Desalination Project on line at all times to give the water agencies an additional water supply to augment water which must be released from Bradbury Dam for public trust fish and wildlife resources. We are requesting a detailed analysis for this alternative.
c) Modification of the Operation of the Cachuma Project in conjunction with the Desalination Project being on line at all times and also using State Water Project water, with fish and wildlife, and ecosystem restoration, mitigation and protection measures. This alternative should include having the Desalination Project on line at all times and using State Water Project water to give the water agencies an additional water supply to augment water which must be released from Bradbury Dam for public trust fish and wildlife resources. We are requesting a detailed analysis for this alternative.
d) Modification of the Operation of the Cachuma Project in conjunction with the Desalination Project being on line at all times, using State Water Project water, and the removal of silt from Gibraltar Reservoir, with fish and wildlife, and ecosystem restoration, mitigation and protection measures. This alternative should include having the Desalination Project on line at all times, using State Water Project water and the removal of silt from Gibraltar Reservoir for additional storage to give the water agencies an additional water supply to augment water which must be released from Bradbury Dam for public trust fish and wildlife resources. We are requesting a detailed analysis for this alternative.
e) Modification of the Operation of the Cachuma Project in conjunction with the Desalination Project being on line at all times, using State Water Project water, the removal of silt from Gibraltar Reservoir for additional storage, and the enlargement of Bradbury Dam, with fish and wildlife, and ecosystem restoration, mitigation and protection measures. This alternative should include having the Desalination Project on line at all times, using State Water Project water, the removal of silt from Gibraltar Reservoir and the enlargement of Bradbury Dam for additional storage to give the water agencies an additional water supply to augment water which must be released from Bradbury Dam for public trust fish and wildlife resources. We are requesting a detailed analysis for this alternative.
14. The Draft EIS/EIR must evaluate growth inducing impacts in the service areas of the Agency, and the Authority from:
a) The operation of the Cachuma Project in conjunction with contract renewals.
b) The alternatives as recommended by the CSPA in paragraph 11 (b) thur (e).
c) All other alternatives in the Draft EIS/EIR.
CEQA requires a discussion of the ways in which a proposed project could foster economic or population growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment.
15. The Santa Barbara Desalination Project serves the City of Santa Barbara, Goleta Water District and the Montecito Water District. This project can produce 7,500 acre-feet of water annually, but it was taken of line this year. It is our understanding there is ongoing negotiations to sell the water produced by the project to the MWD through a water transfer where Las Vegas would recieved Colorado River water and MWD would recieve water from the desalination project.
The water agencies using Cachuma Project have complained about providing for the fish and ecosystem of the river because of apparently reductions to their water supply. However, on the other hand they have a source of water which would augment some of the effects from releasing water into the Santa River for fish and wildlife resources.
The Draft EIS/EIR should discuss the proposed selling of the desalination project. Also, please describe who holds the water rights for the desalination project, and what type of right it is. i.e. riparian, permitted, etc.
The Draft EIS/EIR should evaluate the potential impacts to proposed streamflows from Bradbury Dam as a result of the selling the desalination project.
16. It is our understanding the Bureau and the water agencies are having discussions regarding the purchase of the Cachuma Project from the federal government. The Draft EIS/EIR should provide details and a discussion concerning the potential sale of the project to the water agencies.
17. The purchase and takeover of Gibraltar Reservoir and James Reservoir and their project works by the Bureau should be considered as an alternative in the Draft EIS/EIR to the contract renewals.
The takeover of Gibraltar Reservoir and James Reservoir and the project works would give the Bureau the ability to manage the entire ecosystem above of the river above Bradbury Dam as well as the water supplies. Federal funding could also be used to remove silt from Gibtaltar Reservoir which provide more store to manage the river and the water supplies.
18. Tecolote Tunnel extends 6.4 miles through the Santa Ynez Mountains from Lake Cachuma to the headworks of the South Coast Conduit. It is our understanding the U.S. Forest complained that the Tecolote Tunnel was diverting water underlying Forest Service. Also, the tunnel may be losing water because of leakage. Other tunnel and pipe lines which provide water to the water agencies may be losing water as a result of seepage.
The Draft EIS/EIR should evaluate whether the Tecolote Tunnel is diverting water from the overlying lands of the Forest Service. The Draft EIS/EIR should also evaluate the amount of seepage lost from seepage and mitigate those losses, if any.
19. Glen Anne Dam and Reservoir is part of the Cachuma Project. Glen Anne Reservoir has a capacity of 500 acre-feet of water and is located on West Fork of Glen Anne Canyon Creek below the outlet of Tecolote Tunnel.
The Draft EIS/EIR should evaluate the direct, indirect and cumulative impacts to the environment of West Fork of Glen Anne Canyon Creek resulting from the operations of this project. Describe the pre-project and post-project environmental condition of the stream below the dam. The Draft EIS/EIR should describe the type of water rights for this project and whether there is mandatory minimum streamflow from Glen Anne Dam to protect the fisheries and ecosystem of the stream. The Draft EIS/EIR should describe how the impacts to the fish and wildlife resources and the environment of the West Fork of Glen Anne Canyon Creek will be mitigated to less than significant.
Describe the historic annual diversion and use of water from Glen Anne Canyon Creek. Describe the season of use, the purpose of use, and the maximum amount of water which can be diverted from the stream if limited by a water right permit.
20. Lauro Dam and Reservoir is part of the Cachuma Project. Lauro Reservoir has a capacity of 640 acre-feet of water and is located on Diablo Creek.
The Draft EIS/EIR should evaluate the direct, indirect and cumulative impacts to the environment of Diablo Creek resulting from the operations of this project. Describe the pre-project and post-project environmental condition of the stream below the dam. The Draft EIS/EIR should describe the type of water rights for this project and whether there is mandatory daily minimum streamflows from Lauro Dam to protect the fisheries and ecosystem of the stream. The Draft EIS/EIR should describe how the impacts to the fish and wildlife resources and the environment of the Diablo Creek will be mitigated to less than significant.
Describe the historic annual diversion and use of water from Diablo Creek. Describe the season of use, the purpose of use, and the maximum amount of water which can be diverted from the stream if limited by a water right permit.
21. Ortega Dam and Reservoir is part of the Cachuma Project. Ortega Reservoir has a capacity of 60 acre-feet of water and is located on Picay Creek.
The Draft EIS/EIR should evaluate the direct, indirect and cumulative impacts to the environment of Picay Creek resulting from the operations of this project. Describe the pre-project and post-project environmental condition of the stream below the dam. The Draft EIS/EIR should describe the type of water rights for this project and whether there is mandatory daily minimum streamflows from Ortega Dam to protect the fisheries and ecosystem of the stream. The Draft EIS/EIR should describe how the impacts to the fish and wildlife resources and the environment of the Picay Creek will be mitigated to less than significant.
Describe the historic annual diversion and use of water from Picay Creek. Describe the season of use, the purpose of use, and the maximum amount of water which can be diverted from the stream if limited by a water right permit.
22. Carpinteria Dam and Reservoir is part of the Cachuma Project. Carpintera Reservoir has a capacity of 40 acre-feet of water and is located on Carpinteria Creek.
The Draft EIS/EIR should evaluate the direct, indirect and cumulative impacts to the environment of Carpinteria Creek resulting from the operations of this project. Describe the pre-project and post-project environmental condition of the stream below the dam. The Draft EIS/EIR should describe the type of water rights for this project and whether there is mandatory daily minimum streamflows from Carpinteria Dam to protect the fisheries and ecosystem of the stream. The Draft EIS/EIR should describe how the impacts to the fish and wildlife resources and the environment of the Carpinteria Creek will be mitigated to less than significant.
Describe the historic annual diversion and use of water from Carpinteria Creek. Describe the season of use, the purpose of use, and the maximum amount of water which can be diverted from the stream if limited by a water right permit.
23. Unscreened diversions entrain fish and can cause adverse impacts both to the displacement of fish and fish kills. The Draft EIS/EIR should describe whether the Tecolote Tunnel at Cachuma Reservoir is screened to prevent fish from being harmed. In the event it is not screened, the Draft EIS/EIR should describe mitigation measures to eliminate the fish losses.
24. The Draft EIS/EIR should include a detailed hydrology analysis of all water being stored, diverted and/or pumped from the Santa Ynez River watershed from the Cachuma Project, and from all reservoirs and diversions above Cachuma Reservoir. This hydrology analysis should include all flow since commcement of the operations of the Cachuma Project.
This analysis should also include the diversions of the underflow of the river between Bradbury Dam to the Pacific Ocean. The analysis should also include the amounts of water stored, diverted and/or pumped, the season of diversion, the purpose of use, and whether the diversions and/or pumps were authorized by the State Water Resources Control Board. This analysis must also include whether water stored and diverted from the Cachuma Project has been put to full beneficial use as to the amount of storage and direct diversion which are contained in the Bureau water right permit and authorized by the State Water Resources Control Board.
This analysis is essential because any daily flow requirements for fish from Bradbury Dam must take into account the amount of water diverted and pumped from the river both above and below the Bradbury Dam. For example. If 50 cfs of water is being released daily as a fish flow requirement and downstream diversions divert and pump 10 cfs, there will some type of impact to fish and aquatic habitat below the points of diversion. Also water pumped from the underflow will effect surface flows with resulting effects to fish and aquatic habitat below the points of pumping.
25. In December, 1990, the Department of Water Resources and the Bureau prepared a Draft EIR/EIS for the " Enlargement of Lake Cachuma and Bradbury Dam Safety Modifications ". The following was stated in this document concerning potential flood occurrence at Bradbury Dam:
" In July 1984, Reclamation conducted a flood analysis for Bradbury Dam (SEED report). The results of that analysis indicated that the existing Bradbury Dam cannot safety pass the PMF - a hypothetical flood of a magnitude such that there is virtually no chance if being exceeded (Reclamation, July 1984)
" Bradbury Dam was originally designed for a peak inflow of 183,000 cubic feet per second (cfs) and a 3-1/2 day volume of 330,000 AF. As a result of additional hydrological and meteorological data, Reclamation developed a revised PMF for Bradbury Dam. Lake Cachuma was assumed to be at the maximum normal water surface elevation (750 feet) at the beginning of the PMF occurrence, and downstream releases would begin immediately. The PMF developed has a peak inflow of 370,000 cfs with a 72 hour volume of 618,200 AF and a 9 day volume of 898,000 AF. Studies of the revised PMF indicate that the dam would be overtopped by a flood occurrence with a peak inflow equivalent to 62 percent of the PMF. From historic data, discharges exceeding about 80,000 cfs would cause significant damage downstream of the dam. Discharges would exceed this level after 24 hours; after 31 hours the capacity of the existing spillway would be exceeded and the lake level would continue to rise until overtopping of the dam occurred. Such prolonged overtopping of Bradbury Dam could result in failure by breaching. "
" The Bradbury Dam outlet works was found to be incapable of evacuating the reservoir within the specified time frame. Evacuation computations indicated that 263 days would be required to evacuate 90 percent of the reservoir storage. Current Reclamation guidelines state that a drawdown time of 40 - 50 days is desirable for a dam similar to Bradbury Dam. "
" Reclamation estimated that there is potential for loss of 200 to 500 lives if dam failure occurred. This represents a significant incremental increase in the potential for loss of life when comparing the dam failure to the natural (no dam) condition. The downstream damage assessment indicates that there is potential for over $5.3 million in downstream property damage resulting from dam failure. This damage assessment represents the incremental increase to damage when comparing dam failure to natural conditions. " We reference the Draft EIR/EIS for the " Enlargement of Lake Cachuma and Bradbury Dam Safety Modifications "; II Purpose and Need; Dam safety Issues; under Potential Flood Occurrence; page 9; Department of Water Resources and U.S. Bureau of Reclamation; November 1990.
The Draft EIR/EIS for the Enlargement of Lake Cachuma and Bradbury Dam Safety Modification further stated:
" Reclamation's Safety of Dams program is carried out under the authority of the Reclamation Safety of Dams Act of 1978 (Public Law 95-578) and the Reclamation Safety of Dams Act Amendment of 1984 (Public Law 98-404). "
" The intent of the above acts is " to preserve the structural integrity of Bureau of Reclamation dams and related facilities, " and the Secretary of the Interior has been authorized to preform such dam safety modifications as he/she deems reasonably required. "
" Section 3 of the Safety of Dams Act states that construction authorized by the Act shall be for purposes of dam safety and not for the specific purposes of providing additional conservation storage or developing benefits over and above those provided by the original dams and reservoirs. Nothing in the Act shall be construed to reduce the amount of project costs allocated to reimbursable as heretofore authorized. "
The Draft EIS/EIR must evaluate the potential adverse impacts to lives and private property resulting from a flood event as describe above. It must determine when the Secretary of the Interior intents to conduct dam safety modifications to Bradbury Dam to protect lives and private property in the downstream reaches of the Santa Ynez River below Bradbury Dam. i.e. Lompoc Area.
Most major dams in California have flood control levels which were ordered by the U.S. Army Corps of Engineers, a federal agency. The Draft EIS/EIR should evaluate whether flood control levels for Cachuma Reservoir should be incorporated into the operations of the Cachuma Project to protect lives and private property in the downstream reaches of the Santa Ynez River below Bradbury Dam.
The Draft EIS/EIR should provide a discussion to determine whether the Bureau is operating the Cachuma Project in accordance with the Reclamation Safety of Dams Act of 1978 (Public Law 95-578) and the Reclamation Safety of Dams Act Amendment of 1984 (Public Law 98-404).
26. When there is water flowing in the Santa Ynez River between Bradbury Dam and the Pacific Ocean public recreational activities occur. i.e. Spring of 1993. Some of the recreational activities in the Santa Ynez River below Bradbury dam are: fishing, swimming, wading, picnicking, etc. There is a public river park in the Lompoc area located adjacent to the river.
The operations of the Cachuma Project has had adverse impacts to public recreational activities in the Santa Ynez River between Bradbury Dam and the Pacific Ocean when the river is not flowing because of the operations of the Cachuma Project by the Bureau.
The Draft EIS/EIR should evaluate the impacts to public recreation activities in the Santa Ynez River from Bradbury Dam to the Pacific Ocean. The Draft EIS/EIR should also evaluate the benefits to public recreational activities from modifying the operations of the Cachuma Project which includes flows at all times from Bradbury Dam to restore, mitigate and protect the fish and wildlife resources. This evaluation should evaluate a number of flow requirements which provides for the restoration of the public trust fish and wildlife resources and public trust recreational activities in the river from Bradbury Dam to the Pacific Ocean.
27. The operations of the Cachuma Project may have adversely degraded ground water quality in the Lompoc Area because of sea water intrusion. Degraded ground water quality can adversely affect the growing of crops for agricultural purposes. Ground water pumping for agricultural purposes occurs in the Lompoc area.
The Draft EIS/EIR should evalaute the potential adverse impacts to ground water quality in the Lompoc area resulting from the operation of the Cachuma Project. The Draft EIS/EIR should mitigate any adverse impacts to less than significant.
28. The Bureau is the lead agency under the National Environmental Policy Act, and the Santa Barbara County Water Agency and the Cachuma Project Authority are co-lead agencies under the California Environmental Quality Act.
We object to the Santa Barbara County Water Agency and the Cachuma Project Authority being co-lead agencies for this project. Santa Barbara County Water Agency and the Cachuma Project Authority have the authority to sign the contract renewal, but do not have the authority in carrying out the duties and the responsibilities of the State Water Resources Control Board who has continuing authority over the Bureau's water rights permit for the Cachuma Project as well as the authority over all water rights permits diverting surface flow and the underflow of the Santa Ynez River.
The State Water Resources Control Board should have been the lead agency under CEQA as shown below:
The Public Trust
The State Water Board has a duty to protect public trust resources when administrating water rights, and, in situations where damage has already been done by water users, to reallocate water to preserve the trust. It is the latter duty which the Board must perform for the Santa Ynez River.
The State Water Board has the continuing authority over all water rights under the common law public trust doctrine to protect public trust resources. [See National Audubon Society v. Superior Court of Alpine County (1983) 33 Cal.3d. 419, 189 Cal. Rptr. 346.]
The public ownership of the State's waters and water courses has its roots in Roman Law of the 6th Century A.D. The public ownership of fish and wildlife also has its roots in ancient Roman Law from the 6th Century A,D. [See Althaus 1987] This fish and wildlife (includes shellfish, birds, mammals, and other classes of wild animals) in their natural state can be regarded as property belonging to the people, with governmental agencies such as the State Water Board and the Department of Fish and Game as trustees.
The California Supreme Court in its Mono Lake Decision [National Audubon Society v. Department of Water and Power, City of Los Angeles (33 Cal.3d 419,658 P.2d 709-1983) reiterated and clarified some of its past rulings regarding public trust properties, uses and values. The Court further emphasized the State's overall duties and responsibilities to protect the people's common heritage of streams, lakes, marshlands and tidelands for the many uses covered by the public trust.
In this 1983 ruling, the California Supreme Court also stated:
o Parties acquiring rights in trust property (in this case water), hold those rights subject to the trust, and can assert no vested right to use those rights in a manner harmful to the trust.
o The public trust is more than an affirmation of the State power to use public property for public purposes, it is the duty to take public trust properties (fish, wildlife and water quality) into account in the planning and allocation of water and to avoid or minimize any harm to these properties, interests or associated uses whenever feasible.
o The State, under its public trust responsibilities, has the affirmation of the duty and continuing authority to vigorously protect the public trust uses and to avoid or minimize harmful impacts to such uses.
o The public trust is more than an affirmation of the state's power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.
o The Public Trust doctrine protects navigable waters from harm caused by diversion of non-navigable tributaries.
o The State can reconsider previous water allocations at any time under its continuous authority.
o The public trust includes the protection of ecological and biological values of water and waterways.
o Any member of the general public has standing to raise a claim of harm to the public trust. (Emphasis Added) The CSPA public trust complaint with the State Water Resources Control Board is in accordance with that court ruling.
The CSPA scoping comments are based on the Public Trust Doctrine. The statement of facts clearly shows that the public trust resources of the Santa Ynez River has been neglected and damaged by existing practices by the Bureau, and the failure of the State Water Board to carry out its duty to protect the public trust fish and wildlife assets Santa Ynez River.
California Fish and Game Code 5937 - Water for Fish
There has been a long history of concern for California's fishery resources. The California Legislature in 1852 enacted a statute designed to protect migrating steelhead trout and salmon on their spawning runs by outlawing obstructions in any river or stream as a public nuisance. The law is that "the running water of the State of California are public property. One who obstructs them obstructs them under license or permission from the state, but only upon such conditions as to their use as the state may impose" [See Schaezlien v. Cabaniss (135 Cal 466, 470, 67 Pac Rpt. 755, 757-1902)] The State can impose conditions upon owners of a dam or other structure as it sees fit to permit the free running of water or migration of fish up or down a stream.
In 1870 the California Legislature enacted Penal Code 637 which required " as far as practicable" fishways over obstructions in the State's rivers and streams. The court ruled that Taylor's dam on Papermill Creek violated Penal Code 637 by failing to keep the fishway in repair to allow fish to move upstream [See Taylor v. Hughes (62 Cal 32 1882)]
In 1915 another statute was enacted requiring continuous water release from dams through fishways for the purpose of keeping fish below such dams in "good condition". In 1937, what is now California Fish and Game Code 5937 was enacted by the California Legislature. Fish and Game Code 5937 states that the owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. [See Use it or Lose It - Fish and Game Code 5937; Law Review Article; Joel Baiocchi; U.C. Davis, 1980]
The State Water Board was challenged in the courts over not enforcing Fish and Game Code 5937 involving the construction of four (4) dams on tributaries to Mono Lake and the diversion of their entire flow by the Los Angeles Department of Water and Power for municipal and industrial water supply and hydropower uses. There were no instream flow provisions incorporated into water right permits issued by the State Water Board to keep trout alive and in "good condition" in streams below the dams. [See California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]
The Appellate Court's findings in California Trout v. State Water Resources Control Board supported the concept that trust properties, such as fish, have a unique status. The title to the fish property in State waters is vested in the State and held in trust for the people.
Other important points of the decision include:
o Fish and Game Section 5937 mandates that the owner of any dam shall allow sufficient water at all times to pass through a fishway or in the absence of a fishway, allow sufficient water to pass over, around or through the dam to keep in good condition any fish that may be planted or exist below the dam. (Emphasis Added)
o Limits the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure the continued existence in good condition of fish life below the dam. (Emphasis Added)
o Compliance with Fish and Game Code 5937 was not negated by the agreement to build a trout hatchery.
o The public trust interest as to a fishery in a non-navigable stream is in the nature of a state property interest
o There are a variety of public trust interests in addition to fish and the fishery that pertain to non-navigable streams.
o Water right permit actions or the failure to take action is not time barred. The nature of the State's property interest in both fish and water is such that one may not oust the State's property or trusts interests by a statute of limitation. " The public is not to lose its rights through the negligence of its agents, nor because it has not chosen to resist an encroachment by one of its own number, whose duty it was, as much as that of every other citizen, to protect the state in its rights." [See People v. Kerber (1908) (152 Cal. 731, 732, 736, 93 P. 878) in California Trout v. State Water Resources Control Board, et al (207 Cal.App.3d 585 (1989)]
o If a nuisance is an ongoing conduct that can be discontinued by an order to stop such acts, the nuisance is viewed as continuing and hence abatable. There are no statute of limitations that permit such acts to continue.
o The licenses to appropriate water must be conditioned by the State Water Board mandating that the dam owner allow sufficient flow of water to pass downstream of the dam to keep the fish alive and in good condition.
The Appellate Court also found that Fish and Game Code 5937 are expressions of both the California Constitution and the California Legislature for protecting the value of the State's instream waters as an ecosystem and the fishery resources that utilize that ecosystem. The effect of that provision is to limit the amount of water that may be appropriated by diversion by requiring that sufficient water first be released to assure that fishlife below the dam are maintained in "good condition". (Emphasis Added)
The criteria "in good condition" is not defined in Fish and Game Section 5937. However, "in good condition" must include the conservation and protection of the biological, physical, and chemical aspects of the aquatic environment that are necessary to support self-maintaining or renewable fish populations, associated ecological values and other beneficial and public trust uses of the Santa Ynez River.
The State Water Board cannot continue to ignore its duty to enforce the law against water users. In the words of the United States Supreme Court;
"The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties except in the instances of parcels mentioned for improvement of the navigation and use of the waters and when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police power in the administration of government and preservation of peace." [Illinois Central Railroad Co. v. State of Illinois, (1892) 146 U.S. 452.]
Water Quality - The Fish
In People v. Truckee Lumber Co. (116 Cal. 397, 48 Pac. 374 (1897)) the actions of Truckee Lumber Co. were declared a nuisance and enjoined. The lumber mill allowed the dumping of saw dust, shaving, edgings and other wastes into the Truckee River. The material was polluting the river and was deleterious to aquatic life, killing trout and other life in the river and destroying the fishery. The chemical, biological and physical components in a significant reach of the Truckee River were being impacted by such wastes.
The California Supreme Court in its Truckee decision stated:
"the fish within our waters constitute the most important constituent of that species of property commonly designated as wild game, the general right and ownership of which is in the people of the state -- and the right and power to protect and preserve such property for the common use and benefit is one of the recognized prerogatives of the sovereign, coming to use from the common law and preserved and expressly provided for by the statutes of this and every state of the Union --.
--The Dominion of the State, for the purposes of protecting its sovereign rights in the fish within its water and their preservation for the common enjoyment of its citizens is not confined--. It extends to all waters within the State, public or private, wherein these animals are habited or accustomed to resort for spawning or other purposes, and through which they have freedom of passage to and from the public fishing grounds of the State". (Emphasis Added)
The State Water Board must carry out its duty and not neglect its duty to protect the public trust fishery resources of the Santa Ynez River.
The Right To Fish - Abundance of Public Trust Resources
The State Water Board when issuing water right permits to use the waters of the state has responsibilities for preserving and protecting the public trust resources and public interest by incorporating mandatory protection requirements into water right permits. In this situation recreation, fishery resources, water quality, riparian habitat, and other public trust resources of the Santa Ynez River must be protected against harm or degradation by the Bureau operations of the Cachuma Project in conjunction with contract renewals.
The California Constitution, Article 1, Section 25, clarifies the public fishing right.
" The people shall have the right to fish upon and from the public lands of the State and in the waters thereof and no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish there upon -"
The right to fish the Santa Ynez River can not be enjoyed by the people unless public trust fishery resources are in sufficient abundance to be harvested and enjoyed.
The continued existence, renewability and abundance of such resources in their broadest context, the integrity of water as an aquatic environment upon which such resources depend, rests upon the State Water Board.
Water Rights - State Water Board - Authority to Act
The State Water Board has several sources of authority to modify the Bureau's Permit:
o Water Code Section 1394 authorizes the State Water Board to include a specific reservation of jurisdiction in a permit.
o Pursuant to Water Code 1258, the State Water Board may subject appropriations to such terms and conditions as it finds necessary to enforce water quality control plans.
o The State Water Board has continuing authority under Water Code Sections 100 and 275 to enforce the requirements of California Constitution Article X, Section 2 with respect to all water right holders.
o The State Water Board's regulations at 23 Cal. Code Regs. Section 784 describes the State Water Board's authority to require release of of stored water.
o Section 780 (a) sets forth the State Water Board's standard permit term reserving continuing authority. This term describes how the State Water Board might exercise its continuing authority under Water Code Sections 100 and 275, under Cal. Const. Art. X, Section 2, and under the common law public trust doctrine.
o The State Water Board has continuing authority over all water rights under the common law public trust doctrine to protect public trust uses.
o The standard permit term for continuing authority at Section 780(a) of Cal. Code Regs., Title 23, is based in part on the public trust doctrine.
o The State Water Board has the authority and responsibility to prevent the unauthorized use of the state's water when a water right has not been acquired in compliance with the provisions of Section 1225 of the California Water Code.
It is clear that the State Water Resources Control Board should have been the the lead agency under CEQA because of its duties and responsibilities are shown above. The Santa Barbara County Water Agency and the Cachuma Project Authority simply have the authority to sign the contract renewals.
We are requesting all mitigation measures, modifications of the Cachuma Project, and the final decision in the EIS/EIR be in full compliance with duties and responsibilities of the State Water Resources Control Board and the law as shown above.
29. There are a number of water right applications pending before the State Water Resources Control Board. They are as follows:
a) Consideration of a request for an extension of time by the Santa Ynez River Water Conservation District under Permit 17447 (Application 23960) to complete construction and develop full beneficial use of water.
b) Consideration of approval of Applications 28670 and 28671 of the Montecito Water District to appropriate water from two streams tributary to the Santa Ynez River in the vicinity of Juncal Dam.
c) Consideration of approval of Application 28687 of the City of Santa Barbara to appropriate water from Devils Canyon tributary to the Santa Ynez River in the vicinity of Gibraltar Dam.
d) Consideration of approval of Application 28990 of the Buellton Community Services District to appropriate water from the Santa Ynez River Underflow.
e) Consideration of approval of Application 29082 of the California Department of Water Resources to appropriate water from the Santa Ynez River at Bradbury Dam.
The State Water Resources Control Board must make a determination on the availability of unappropriated water in the Santa Ynez River watershed. The State Water Resources Control Board stated that " The evidence submitted to date, which is intended to demonstrate that water is available, is not sufficient to support a finding of availability and a determination of the conditions under which the water might be appropriated without injuring downstream and instream interests ". We reference the letter from former Chairman Donald Maughan which is an attachment to the CSPA scoping comments.
The Draft EIS/EIR should evaluate pending water right applications and determine the potential adverse impacts to the public trust fish and wildlife resources of the Santa Ynez River from said pending water right applications and the operations of the Cachuma Project.
30. We are requesting the draft and final EIS/EIR be in full compliance with the requirements of NEPA (42 U.S.C. Section 4321 et seq.). We reference 40 CFR 1500.1 et seq.
31. We are requesting the draft and final EIS/EIR be in full compliance with CEQA (Public Resources Code Section 21000 et seq.) and its guidelines. We reference CCR, tile 14 Section 15000 et seq. The procedures that public agencies adopt to implement CEQA must be consistent with the Guidelines.
32. All direct, indirect and cumulative impacts from the operations of the Cachuma Project in conjunction with contract renewals must be mitigated and reduced to less than significant as required by CEQA.
33. We reference the State Water Resources Control Board hearing record for the Santa Ynez River in July and August, 1990, to the CSPA scoping comments.
Forward a timely copy of the Draft EIS/EIR to me at the address listed below. We will provide comments to the Draft EIS/EIR.
Respectfully Submitted
_____________________________________
Robert J. Baiocchi, Executive Director
California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Office Tel: 916-283-3767
Fax: 916-283-5017
With Attachment
Certificate of Service
Roger Patterson, Regional Director
Bureau of Reclamation
U.S. Department of the Interior
Cachuma Project Authority
Santa Barbara County Water Agency
Walt Pettit, Executive Director
State Water Resources Control Board
Wayne White, State Supervisor
U.S. Fish and Wildlife Service
Craig Faanes
Ventura Office
U.S. Fish and Wildlife Service
Jim Bybee
U.S. National Marine Fisheries Service
Santa Rosa Office
John Turner, Chief, Environmental Services
Department of Fish and Game
Steve Herrera, Environmental Unit
Division of Water Rights
Carl Dealy
Project Superintendent Office
Fresno Office
Bureau of Reclamation
John Bridgewater
Los Padres National Forest
U.S. Forest Service
Brian Troutwein
Urban Creek Council
Steve Volker, Counsel
Sierra Club Legal Defense Fund
Jim Crenshaw, President, CSPA
Bill Jennings, Chairman, CSPA
Michael Jackson, Counsel, CSPA
Dave Heaslett, Counsel, CSPA
Interested Parties