State of California
Before the California Regional Water Quality Control Board
Los Angeles Region
Designation of Regional Category "A" Waterbodies
Under the California Inland Surface Waters Plan
Los Angeles Regional Water Quality Control Board
Hearing of October 19, 1992
Written Testimony of California Sportfishing Protection Alliance
My name is Robert J. Baiocchi. I am the Executive Director of the California Sportfishing Protection Alliance (hereinafter known as "CSPA"). I am employed by my board of directors to acquire and preserve administrative standing on water activities affecting fisheries and other environmental resources before the State Water Resources Control Board.
To fulfill those duties I have filed hundreds of protests and dozens of complaints regarding water development and distribution activities in California. I have filed dozens of complaints and petitions of interventions with the Federal Energy Regulatory Commission regarding water and power activities in California. I have maintained correspondence with the U.S. Fish and Wildlife Service, U.S. National Marine Fisheries Service, U.S. Forest Service, U.S. Bureau of Reclamation, U.S. Bureau of Land Management and the U.S. Army Corps of Engineers. I have also maintained correspondence with the State Water Resources Control Board, California Department of Fish and Game, California Department of Water Resources, State Lands Commission, State Reclamation Board, California Division of Forestry and the California Resources Agency.
The purpose of this correspondence is to acquaint each of these agencies with suggestions, criticisms, and evaluations of their actions and their effects on public trust values.
The CSPA has taken a substantial part in the State Water Resources Control Board hearing process during the recent past. The Santa Ynez River hearing which took approximately 6 days of valuable Board time resulted in stalemate; no additional appropriations were allowed, the Department of Water Resources withdrew its enlargement of the Cachuma Project, but the Santa Ynez River still lies stagnant and depleted, and no steelhead return to the river from the sea.
The CSPA recently took part at the Lower Yuba River hearing. The 15 day hearing concerned a complaint filed by the CSPA et al. against Yuba County Water Agency and other water users. At the hearing the Department of Fish and Game (DFG) submitted testimony and evidence supporting the Department's Lower Yuba River Fisheries Management Plan. The plan supports the CSPA allegations in its complaint with respect to the protection of anadromous fisheries of the lower Yuba River. I provided testimony at the hearing.
The CSPA also recently took part at the 15 day Bay-Delta hearing concerning water rights and an interim solution to fix the Bay-Delta. I provided testimony at that hearing. The Bay-Delta is broken, and on or about November 15, 1992, the State Water Board will be making a decision whether to repair the Bay-Delta and determine what parties will need to provide additional fresh water into the Bay-Delta Pool.
In August of this year, I provided testimony at the Carmel River hearing representing the CSPA concerning a complaint filed by the Carmel River Steelhead Association. In my testimony I concluded that Cal-Am did not have water rights to divert the underflow of the Carmel River and that the State Water Board must follow the law and have Cal-Am cease their diversions. In a related matter, the State Water Board will also schedule a hearing in October, 1992, to hear testimony and evidence on an application by the Monterey Peninsula Water Management District to construct a new dam on the Carmel River. The CSPA filed a protest on said water right application for said new dam and is a party in the proceedings.
The CSPA recently took part at a State Water Board hearing concerning the proposed Los Vaqueros Project. I testified at the hearing representing the CSPA. The CSPA will be taking part at a State Water Board hearing in November to resolve a complaint filed by the CSPA against East Bay MUD's operations of dams and reservoirs on the lower Mokelumne River. I will testify at said hearing.
The CSPA has also taken part with various regional water quality boards concerning the impacts to water quality and fishery resources. i.e. Penn Mine, Mokelumne River and Mammoth Creek, tributary to Hot Creek.
The issue before the regional board today in our view is the first step to relax waste discharge requirements for those municipal waste dischagers who discharge into rivers and streams.
The Clean Water Act requires all states to develop numeric water quality standards for priority pollutants. The California Inland Surface Waters Plan, adopted by the State Board in April 1991, outlines new objectives for most of these constituents on a statewide basis. Over the next few years, these water quality objectives will result in revised effluent limits for discharges into rivers throughout the Region.
One provision in the Inland Surface Waters Plan (ISWP) allows for Regional Board consideration of Category "A" designations. The ISWP defines Category "A" as "waterbodies, or segments thereof that are not naturally perennial and, as of the date of adoption of this plan, support, or are planned to support within six years of plan adoption, aquatic life beneficial uses during the dry season as a result of the discharge of reclaimed water".
The Los Angeles Regional Board is considering a proposal to designate a number of rivers and streams in Southern California under Category "A", including portions of the Ventura and Santa Clara Rivers, the North Fork Arroyo Conejo, Arroyo Simi, and Conejo Creek.
According to the Regional Board's adopted definition, "Category A" is a river or stream which "does not naturally have perennial flow". "Category A" designation are inappropriate to watersheds in Southern California which naturally exhibit highly variable flow regimes which provide habitat for public trust assets. (Emphasis Added) Some of those public trust assets are: steelhead trout, other sensitive fish species, and most importantly, rare, threatened and endangered species such as Arroyo Toad, Western Pond Turtle, Tidewater Goby, Three-Spined Unarmored Stickleback, Least Tern, and other species.
The Regional Board staff originally recommended against using the "Category A" designation for any river and stream in Southern California at the Regional Board's June 1, 1992 meeting. However, because of outside pressure from municipal waste dischargers, including the Ojai Valley Sanitary District and the City of Thousand Oaks, the Regional Board's staff revised its recommendation not to protect public trust assets in conflict with the Clean Water Act and the Public Trust Doctrine even though the "Category A" is opposed by the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service and the California of Fish and Game.
We believe the Regional Board and the State Water Board have an obligation and responsibility to enforce the Clean Water Act and the Public Trust Doctrine to protect public trust assets in all rivers and streams in Southern California when any decision being considered may jeopardize or extinguish public trust assets. To allow for waste dischagers to adversely impact public trust assets is a violation of the law. Consequently the Regional Board must adopt an order against using "Category A" designation for any river or stream in Southern California.
The Regional Board in cooperation with the State Water Board must conduct investigations to determine whether diverters are allowing sufficient flows at all times from their diversions to maintain livestreams and protect fish and aquatic life throughout all watersheds in Southern California. We cite Section 5937 of the California Fish and Game Codes which requires water to be released by dam owners at all times to protect fish that exist or are planted below the dam. The Boards must also investigate whether waste dischargers are adversely affecting water quality in the underflow of rivers and streams in Southern California. In order to determine whether the underflow is being adversely impacted, the Boards need to make a scientific finding to determine whether or not there is underflow.
This concludes the written testimony of the CSPA.
Respectfully Submitted
________________________________________
Robert J. Baiocchi, Executive Director, CSPA
P.O. Box 357
Quincy, CA 95971
October 17, 1992