On March 21, EPIC Staff Attorney Matt Simmons submitted a letter to the State Water Resources Control Board Division of Water Rights on behalf of EPIC and the Save Jackson Coalition as a formal protest against two Water Right Applications filed by the Department of Forestry and Fire Protection (CAL FIRE) within Jackson Demonstration State Forest that would directly divert water from the Noyo River, Big River, Caspar Creek and Hare Creek stream systems, and impact numerous others.
Read the full letter below:
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State Water Resources Control Board, Division of Water Rights
Attn: Mark Matranga and Erik Wahl
Dear Mr. Matranga and Mr. Wahl,
Please accept this letter on behalf of the Environmental Protection Information Center (EPIC) and the Save Jackson Coalition as a formal protest against Water Right Applications A032122 and A033066 filed by CAL FIRE under Water Code section 1330.
Both applications are deficient in material respects, rendering them incomplete. If approved, these applications would threaten the public interest, adversely affect public trust uses and resources, and adversely impact the environmec nt. The applications are also contrary to law because they have failed to comply with the California Environmental Quality Act (CEQA). Therefore, EPIC and the Save Jackson Coalition ask that the State Water Resources Control Board deny these applications until the issues raised in this protest can be resolved.
These applications would impact the following navigable waters and tributaries of navigable waters: North Fork Caspar Creek, Chamberlain Creek, North Fork Big River, South Fork Noyo River, North Fork James Creek, Hare Creek, Blue Gum Creek, Caspar Creek, South Fork Caspar Creek, Lost Lake Creek, as well as several unnamed streams.
The applications would also impact the following public trust values: fisheries, wildlife, the environment, the right to fish, the right to navigate, right to swim, and the right to use for general recreational and aesthetic purposes, by lowering the water level of several important tributaries of salmon-bearing streams located within the Jackson Demonstration State Forest.
Salmon depend upon adequate cold, clean water to successfully reproduce and return to their spawning grounds. The California Department of Fish & Wildlife (CDFW) has recognized water diversions and altered or diminished in-stream flows as having a significant impact on coho salmon resulting in juvenile and adult mortality. Moreover, CDFW's Coho Recovery Strategy lists water diversions as an impact on Coho Salmon within the Mendocino Coast Hydrological Unit.
Water diversions impact salmon in the following ways. Water diversions reduce flow volume. Reduced flow volume has a strong positive correlation with increased water temperature likely caused by shallower water. Increased water temperatures reduce growth rates in salmonids, increase predation risk, and increase susceptibility to disease. Warmer water also holds less dissolved oxygen, which can reduce survival in juvenile salmonids. Both water temperature and dissolved oxygen are critically important for salmonid survival and habitat quality. Reduced stream flows can also threaten salmonids by diminishing other water quality parameters, decreasing habitat availability, stranding fish, delaying migration, increasing intra and interspecific competition, decreasing food supply, and increasing the likelihood of predation. By permitting withdrawing water from salmon bearing streams and tributaries of salmon bearing streams, these applications would therefore harm these public trust resources and the environment.
The Water Board must weigh these impacts against the purported beneficial use of water claimed by CAL FIRE before granting these water right applications. In order to make an informed decision, the Water Board will require more information from CAL FIRE than it has already submitted. The application is inadequate for the following reasons:
First, the applications lack any site-specific environmental review, which is a fundamental requirement under CEQA. Without site-specific environmental review, the Water Board cannot make an informed determination regarding the impacts to water resources and quality from the proposed appropriations. This is particularly troubling given the fragile status of the freshwater ecosystems located within Jackson Demonstration State Forest and the perilous position of endangered species such as coho salmon. Furthermore, the existence of Timber Harvest Plans (THPs) and Lake & Streambed Alteration (LSA) permits for areas of Jackson Demonstration State Forest do not cure the lack of environmental review for these applications. Those plans are primarily intended to assess the impacts of logging and localized streambed impacts; they are not a sufficient substitute for an environmental impact report (EIR) that addresses the effects of the proposed diversions on the aquatic environment upstream and downstream of each diversion, as well as the impacts on other water users who rely on the same waterways. Moreover, while THPs are temporary projects, water diversions pursuant to a water right are permanent, making it imperative to conduct a thorough environmental review that considers both the potential long-term impacts of each diversion and the cumulative effects of all the diversions on each stream system. A thorough EIR must also consider changing circumstances within the watershed over time and in the future, unlike the analysis completed in a THP or LSA. An adequate environmental analysis, including a thorough EIR, is necessary for this application to comply with California law.
Second, the applications are incomplete and inadequate because they lack any water availability analysis based on present and predicted water flows in the waterways at each point of diversion. CAL FIRE has not provided any information to demonstrate that there is a reasonable likelihood that unappropriated water is available for the proposed appropriation. This analysis is particularly crucial given that the proposed diversions are scheduled to occur between April 1 and November 15, a period when water levels in the relevant waterways are at their lowest and water temperatures are at their highest. The water availability analysis must encompass not only recent flow data but also worst-case scenarios, given our changing climate, to ensure the survival of all aquatic life, including state and federally listed species that are increasingly vulnerable due to drought and climate change. Current climate forecasts for our region foresee a climate permeated by drought and punctuated by infrequent severe storms. We are also unaware of any water rights that have been granted in recent years for direct diversions from streams between April 1 and November 15, despite the fact that CAL FIRE has cited riparian rights as a justification for their longstanding practice of direct diversions during this period. The applications are silent on whether the Division of Water Rights or CDFW has approved the amount and locations of these riparian right diversions. We believe that all recent direct diversion water rights from creeks and rivers require that diversions only occur during winter high flows, with the diverted water stored for use in the spring, summer, and fall. Furthermore, the Big River Watershed is already listed on the 303(d) List due to impairment and/or threat of impairment to water quality by temperature. This makes the additional temperature polluting impacts of these water withdrawals in the summertime particularly troublesome. While CAL FIRE has proposed using the water for dust control and possible fire protection, they have not provided any evidence to justify direct diversions between April 1 and November 15, when the potential impacts on the aquatic environment, including ESA listed species, are most severe. Given our region’s increasingly frequent droughts and resulting stress on stream systems and public trust resources such as salmon, it is not responsible to divert water for dust control during this period. Even in wet years such as this one, the delayed and long-lasting impacts of drought on public trust resource species must be considered. For instance, it was recently announced that the Chinook fisheries for the entire west coast of the State would be closed due to decreasing populations. This is due almost entirely to low water levels that prevailed several years ago, and are likely to reoccur in the future, highlighting the need to consider the overall trend in water conditions rather than just the condition at any one point in time.
Third, CAL FIRE has not provided any documentation demonstrating that use of water for dust control is a beneficial use as defined by California Law. The Water Board’s beneficial use definition guidance document does not list timber harvesting or dust control associated with timber harvesting as a beneficial use. Under the section titled “Justification of Amounts Requested” in CAL FIRE’s applications, CAL FIRE checked the box marked “other” in both applications. CAL FIRE must provide an explanation and justification of how dust control is a beneficial use of water so that the Water Board can make an informed decision when weighing the benefits of that use against the impacts to public trust resources.
Finally, simply because CAL FIRE has appropriated water in the past for the purpose of dust control does not give the agency an inherent right to continue to do so if that appropriation threatens the public trust. As the California Supreme Court explained in National Audubon Society v. Superior Court (1983), “[i]n exercising its sovereign power to allocate water resources in the public interest, the state is not confined by past allocation decisions which may be incorrect in light of current knowledge or inconsistent with current needs.” The Court explained that therefore “[t]he state accordingly has the power to reconsider allocation decisions even though those decisions were made after due consideration of their effect on the public trust.”
In light of these concerns, the Environmental Protection Information Center and the Save Jackson Coalition formally protests the granting of these water rights. Until the required studies assessing water availability at each diversion and an environmental impact report on the individual and cumulative impacts of all the proposed diversions is completed, these water right applications should be denied due to their negative impacts on the public interest, public trust uses and resources, and the environment.
One potential mitigation measure that we foresee would be CAL FIRE not withdrawing water during summer months, and instead withdrawing water in winter months when water levels are higher. Moreover, because CAL FIRE has failed to comply with the California Environmental Quality Act, these applications are contrary to law and should not be approved until brought into compliance.
We look forward to reading CAL FIRE’s response and working together in good faith to resolve the protest. We would be willing to withdraw our protest once these terms are met.
Sincerely,
Matthew Simmons
matt@wildcalifornia.org
Staff Attorney
Environmental Protection Information Center
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