State of California
Before the State Water Resources Control Board
Cardoza Family, Applicant
Application No. 30558
Application to Appropriate Water
Unnamed Tributary to Tolay Creek thence San Pablo Bay thence San Francisco Bay thence Pacific Ocean
Public Trust Protest
by the California Sportfishing Protection Alliance
We have reviewed the State Water Resources Control Board's public notice of December 12, 1997 regarding Application 30558. We reference the public notice of December 12, 1997.
DESCRIPTION OF PROJECT
Application 30558
The applicant seeks a right to collect water to storage in two (2) existing onstream reservoirs. Reservoir #1 is a 18-foot high earthfill dam forming a 25 acre-foot capacity reservoir with a surface area of 3 acres. Reservoir #2 is a 20-foot high earthfill dam forming a 25 acre-foot capacity reservoir with a surface area of 2 acres. Water collected to storage in Reservoir #2 may also be used to supplement storage for proposed offstream storage. The applicant proposes construction of three (3) separate diversion facilities to be located on Tolay Creek in which supplemental water may be pumped to three offstream reservoirs known as Reservoir #3,#4, and #5. Water collected from the existing onstream reservoirs and the proposed offstream reservoirs will be used for irrigation (1500 acres of vineyard), frost protection, recreation, domestic, and stocking watering. The amount of water requested by the applicant is 1,100 acre-feet. The requested season of diversion and storage is October 1 to May 15.
CSPA PUBLIC TRUST PROTEST
This protest is based on environmental and legal water right grounds. The steelhead trout of the Central Valley Region have been adversely impacted by diversions of the state's water. And fish and aquatic resources need water to survive.
STATEMENT OF FACTS AND REASONS FOR PUBLIC TRUST PROTEST
1. The proposed project under Application 30558 has the potential to cause adverse impacts to steelhead resources. Central Valley steelhead trout may be listed in the short term future under the protection of the federal Endangered Species Act. Also, Tolay Creek and the unnamed tributary should sustain fish and aquatic resources, including wildlife. The proposed project has the potential to effect water quality and other public trust resources in the Tolay Creek Watershed.
2. The Division should investigate and determine the applicant's water rights associated with the two (2) existing reservoirs. In the event the applicant does not have valid water rights to divert, store, and use water from the existing onstream reservoirs, the Division should require the applicant cease diverting the state's water and take actions pursuant to Section 1052 of the California Water Code.
3. We need to know, and the records must show, the specific mandatory daily flow requirements from the two existing onstream dams to protect the downstream public trust resources.
4. The applicant should be required by the SWRCB to maintain a daily flow of water into the unnamed tributary from their dams and/or diversion works to protect the downstream environmental needs of Tolay Creek and the environment of the unnamed tributary. We recommend a minimum flow of 60% of the average flow in the unnamed tributary and also Tolay Creek.
5. The applicant should be required by the SWRCB to install and maintain measuring devices which measures the amount of water diverted; the amount of water stored at all reservoirs; and also the amount of water bypassed from all onstream dams and diversions. We recommend full time measuring devices.
6. The SWRCB should determine whether other fish and aquatic resources exist in the unnamed tributary, and also in Tolay Creek, and whether a fish screen and a fish ladder should be installed and maintained by the applicant.
7. Waterfowl and other wildlife may be sustained by the unnamed tributary and Tolay Creek, and the streams may provide valuable wetlands. The SWRCB should determine whether waterfowl and other wildlife are sustained by the streams.
8. There are two other water applications to appropriate water from the Tolay Creek Watershed. The SWRCB should prepare a CEQA document which discloses, evaluates, and mitigates all cumulative impacts to steelhead and other public trust resources resulting from this project, other pending applications, and existing projects.
9. To protect water quality in the Bay Delta Estuary the applicant should be required to install and maintain fences at all reservoirs to prevent livestock from entering the stream and waters of the state. The applicant should be required to submit to the SWRCB a water quality management plan for the proposed project.
10. There may not be water available from the Bay Delta Estuary to satisfy water quality requirements for the Delta, and also satisfy the applicant needs for irrigation during all water year types. The applicant should be required by the SWRCB to reach agreement with the USBR and CDWR so that water diverted by the applicant is replaced by the USBR and CDWR.
11. Because of the potential adverse impacts to steelhead trout and water quality in the Tolay Watershed; the potential effects to water quality and water quantity to the Bay Delta Estuary; and the potential cumulative impacts to public trust resources resulting from the three projects (applications) to divert, store, and use water from the Tolay Watershed; an Environmental Impact Report should be prepared for all three (3) applications. The applicants should share the funding of the recommended EIR.
The CSPA Public Trust Protest is Based on the Following:
12. The CSPA public trust protest is based on: (a) Common Law Public Trust Doctrine; (b) California Water Code; (c) Article X, Section 2 of the California Constitution; (d) California Environmental Quality Act and its Guidelines; (e) federal Clean Water Act; (f) federal Endangered Species Act; and (g) state laws and regulations.
Under what conditions may this public trust protest be disregarded and dismissed?
1. None at this time.
2. Provide me with a copy of the draft CEQA document for our review and comment.
Respectfully Submitted
______________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Bus Tel: 916-836-1115 - Fax: 916-836-2062
e-mail cspa@psln.com
January 12, 1998
cc: Chris Murray, Application Unit
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Cardoza Family, Applicant
c/o Drew L. Aspegren. P.E.
176 Main Street, Suite B
St. Helena, CA 94574
Interested Parties