Sierra Club Ventana Chapter & Carmel River Steelhead Association
Rancho San Carlos Partnership Protocol
Formal Complaint filed with The State Water Resources Control Board on September 8th 2003
STATE WATER RESOURCES CONTROL BOARD
Division of Water Rights
COMPLAINT OF VENTANA CHAPTER OF THE SIERRA CLUB
and
CARMEL RIVER STEELHEAD ASSOCIATION
against the
RANCHO SAN CARLOS PARTNERSHIP
ONE RANCHO SAN CARLOS ROAD
CARMEL, CALIFORNIA 93923-7999
The alleged diversion is located on Garzas Creek, a tributary of the Carmel River in the County of Monterey.
This is a complaint against the Rancho San Carlos Partnership (RSCP) by the Carmel River Steelhead Association (CRSA) and the Ventana Chapter of the Sierra Club (Ventana Chapter). The complaint alleges (1) that the RSCP is harming public trust resources, specifically steelhead and red legged frogs, by unauthorized diversions from Garzas Creek; and (2) that Moore’s Lake, owned by the RSCP, is an unreasonable use of water.
A copy of this complaint has been sent to the alleged offender by certified mail.
Complainants are represented by Laurens H. Silver, California Environmental Law Project, who is authorized to represent them in all matters arising out of their complaint.
Complainants, Carmel River Steelhead Association and the Ventana Chapter of the Sierra Club, have members who use Garzas Creek and the Carmel River for recreational, scientific, and esthetic purposes. Members of CRSA have engaged in attempts to preserve and increase the steelhead population in the Carmel River and its tributaries by engaging in projects to reduce steelhead mortality rates and promote the conservation of spawning habitat. The Sierra Club has also had a longstanding interest in preserving the steelhead and promoting habitat restoration to assist and promote steelhead recovery in the River and its tributaries. Its members use Garland Regional Park and other areas along the Carmel River corridor. On July 27, 1987 CRSA filed a complaint alleging that diversions by the California-American Water Company (Cal-Am) from the underflow of the Carmel River are unauthorized and are destroying the public trust resources of the river, including steelhead. On March 5, 1991 the Sierra Club (Ventana Chapter) filed a complaint alleging that the diversions by Cal-Am were harming the steelhead and that diversions from the San Clemente Dam during low flow periods is an unreasonable method of diversion. Their complaints resulted in WR 95-10 and Order WR 2002-0002 in which the Board ordered that diversions be made from wells downstream of San Clemente Dam and made other orders intended to improve steelhead habitat by regulating the manner in which diversions in the River were made.
STATEMENT OF FACTS
Garzas Creek is a tributary of the Carmel River that drains a portion of the Santa Lucia Mountains between the Carmel Valley and the coast, and in particular a large portion of what is now called Rancho San Carlos. The Garzas Creek watershed lies to the northwest of other major tributaries of the Carmel River that drain the Santa Lucia Mountains. A small dam on Garzas Creek at the edge of the San Francisquito Flat in Rancho San Carlos creates Moore’s Lake, at an elevation of about 1350 feet. Downstream from the dam, lower Garzas Creek flows northeast for several miles through a steep canyon before reaching Carmel Valley, where it crosses a short alluvial reach to join the Carmel River at an elevation of about 210 feet, well downstream from the San Clemente Dam. Much of the lower canyon is in the Garland Regional Park, and public access is provided by park trails. The Carmel River still supports a significant population of steelhead, Oncorhynchus mykiss, although the population is much reduced from historical levels.
In Board Order WR 95-10 the Board determined:
The Carmel River supports populations of at least ten resident freshwater and anadromous fish species. Of these fishes, the steelhead (oncorhynchus mykiss) has been considered the most important, and extensive studies have been performed to define its ecology in the river. (SWRCB:42,III-41.)
Adult steelhead live in the ocean and migrate into the upper reaches of the Carmel River to spawn. Migration may begin in the fall after the Lagoon sandbar is breached by artificial means or by the first major storm and when sufficient flow is established in the lower river to allow upstream passage.
Typically, in early January the adults spawn and migrate back to the ocean. After approximately three to eight weeks of incubation, depending on water temperature, the eggs hatch and fry soon emerge from the gravel. These fry continue development in the river until fall. By fall, fry will have developed into juveniles and begin moving downstream. They remain in the lower reaches of the river and the lagoon adapting to brackish water until late spring. In the late spring, as high river flows are receding, they migrate out into the Pacific Ocean. Some juveniles and adults remain in the river for one or two additional years before migrating to the ocean, hence these life stages may be found in the river throughout the entire year. (SWRCB:42,III-42.)
When first seen by Spanish explorers in 1603, the Carmel River supported a spectacular steelhead run, believed to have been well in excess of 12,000 fish annually. (CSRA:5,2.) Heavy fishing in the 1850s through the 1870s diminished the fishery. Fish planting began in 1910 and continued through the 1940s. (MPWMD:289,8-8.)
When San Clemente Dam was constructed in 1921 (RM 18.5), a fish ladder was also built. (MPWMD:289,8-8.) Access to a major portion of the steelhead spawning and rearing habitat was effectively eliminated in 1949 with the construction of Los Padres Dam at RM 23.5. (CSRA:5,2.) Although a fish trap was installed downstream of the dam and captured adults transported into the reservoir, the facility proved ineffective at maintaining steelhead populations. (MPWMD:289, 8-8.)
Annual counts of steelhead passing through the San Clemente fishway began in 1961. The critical dry years of 1976-77 and 1987-92, drought, and diversion by Cal-Am from its wells have combined to reduce water available to steelhead and have also reduced the steelhead population to remnant levels. Only one fish was recorded in 1991 and 15 fish in 1992. (MPWMD:337,49.) Past review of Carmel River environmental problems have identified flow reduction and habitat alteration as major factors associated with steelhead decline. (ESWRCB:42,III-44)
Paralleling the declining steelhead population during this period was the rising urban demand for water. Originally, the Monterey Peninsula water supply was diverted entirely from the two reservoirs and from surface flow. When demand exceeded the developed surface resources, wells drilled in the Carmel Valley alluvium aquifer were added to supplement supply. In recent times, dry season surface flows below the Narrows at RM 10 have been depleted in most years as a result of heavy ground water pumping. This results in the stranding and death of many juvenile fish as surface flow recedes. (DFG:4,32.)
Carmel River steelhead are part of the South-Central California Coast Evolutionarily Significant Unit (ESU), which is listed by NOAA Fisheries (formerly National Marine Fisheries Service, or NMFS) as threatened under the federal Endangered Species Act.
Lower Garzas Creek supports steelhead, although natural barriers in the steep canyon apparently prevent steelhead from migrating as far upstream as San Francisquito Flat. Garzas Creek contributes significantly to steelhead habitat in the Carmel River drainage. It provides tributary habitat that is important for steelhead following a life-history pattern with longer freshwater residency, compared to fish rearing in the mainstem of the river below the dams. Diversity in life-history patterns helps to buffer populations of salmonids from the effects of extreme environmental events such as fires, floods, and droughts (NMFS, Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units, NOAA Technical Memorandum NMFS-NWFSC-42). Garzas Creek also expands the spatial distribution of good tributary habitat in the Carmel River basin, which similarly helps buffer steelhead from extreme events such as fires that may affect only a portion of the Carmel River watershed. Hence, Garzas Creek contributes substantially to the viability of the steelhead population in the Carmel River.
The Carmel River and Garzas Creek also support red-legged frogs (Rana aurora), another species listed as threatened under the federal Endangered Species Act.
The background to this complaint up to November 1999 and the physical geography of the relevant area are described in the Report of Investigation Regarding Complaints Filed by the California Sportsfishing Protection Alliance (CSPA) and Bruce Dormody Against Rancho San Carlos, by the Division of Water Rights (Staff Report). The CSPA complaint concerned a specific incident in which lower Garzas Creek was dewatered to the extent that numerous juvenile steelhead in the stream perished. The Staff Report essentially supported the CSPA complaint. The Dormody complaint alleged unauthorized use of water on a golf course that is outside the Garzas Creek watershed. The Staff Report noted that the RSCP has filed Application 29282 for rights to store up to 250 acre-feet per year in Moore's Lake, which has existed since 1925, and notes that "... the Division's general policy has been to forgo enforcement action in these situations [when an application has been filed for an existing use] provided there does not appear to be a potential for harm to public trust resources or vested prior rights as a result of such diversion" (p. 8, emphasis in original). Although the Staff Report suggested operational procedures intended to avoid such harm, it also questioned whether Moore’s Lake is a reasonable use of water: “(B)ecause of this chronic shortage of water [in the Carmel River watershed] and the significant public trust values provided by Las Garzas Creek, Complaint Unit staff question whether maintaining the level of a 250 acre-feet “reflecting pool” under any claim of right is either reasonable or in the public interest” (pp. 10-11).
The Staff Report also notes that although Moore's Lake was constructed in 1925, RSCP has claimed some pre-1914 water rights based on the asserted existence of a reservoir constructed before 1914; however, "... the capacity of the [alleged] previous reservoir is unknown, as is the capacity of Moore's Lake at the time of construction. It is also unknown when the previous reservoir was constructed, when the previous reservoir was breached, to what degree the previous reservoir use was beneficially used, and whether continuous use was made of any water appropriated prior to 1914" (p. 8).
The SWRCB filed a Civil Liability Complaint against RSC on 3 July 2000. Complaint No. 272.5-2. On 11 September, following meetings with RSCP, NMFS, the California Department of Fish and Game (DFG), and the United States Fish and Wildlife Service (USFWS), the SWRCB withdrew and reissued the complaint (No. 262.5-21 (Reissued)), finding in pertinent part that "(T)he basis of this ACL Complaint is RSCP's unauthorized diversions caused by the diversion of water to storage without a valid basis in right and the resultant injury in an unreasonable manner of public trust resources." The ACL also noted that "... the Dormody complaint will be dismissed due to lack of showing that additional injury occurred either to public trust resources or to other legal users of water due to the operations of RSCP under the direction of the DF&G in 1999." Moreover, all but $2,300 of the $22,300 penalty was to be waived provided that RSC took several specified actions:
“RSCP shall install continuous flow monitoring devices capable of measuring all inflows to and releases from the lake; RSCP shall maintain a record of inflows to and releases from Moore’s Lake and provide this record to the SWRCB.”
On 7 March 2001 the DWR notified interested parties by letter that RSCP, in conjunction with DFG, USFWS, and NMFS, had developed a protocol for the operation of Moore's Lake. and that "(l)egal counsel for RSCP has also confirmed in writing that RSCP will enter into a written agreement with the SWRCB for compliance with the requirements of ... (CEQA) pursuant to the processing of Application 29282, if the SWRCB reasonably concludes that further analyses are necessary." The letter also stated that the DWR staff had concluded, presumably in light of the protocol, that "... the issues raised in complaints filed by the [CSPA and Bruce Dormody] have been adequately addressed and that these complaints should be closed without further notice."
Unfortunately, subsequent events have demonstrated that the issues raised have not been adequately addressed. In the summer and fall of 2001, following implementation of the protocol, normally perennial reaches of lower Garzas Creek went dry, Exhibits B,C, and D (Sierra Club, Ventana Chapter, (January 31, 2002); Declaration of Gary Tate (December 16, 2001); Notes of Hydrologist James (August 14, 2001). An analysis by a qualified hydrologist concluded that because the preceding winter was not unusually dry, increased water use on RSC was the most plausible cause of this event. Exhibit E (Letter to G. Taylor, dated January 27, 2002, from John G. Williams, Hydrologist.)
Following presentations by the CRSA and the Ventana Chapter at the January 2002 meeting of the Board of Directors of the Monterey Peninsula Water Management District (MPWMD), the Board directed its staff to host a meeting of all interested parties to discuss the possible impacts of water use on RSC on Garzas Creek and whether the protocol provided adequate protection for public trust resources. This meeting occurred on 12 March 2002. On 28 March, NMFS responded with a letter to the MPWMD and RSCP stating in part that "(O)ne of the requirements of the protocol is that if adverse impacts are resulting downstream and/or in Moore’s Lake due to the operational protocol, adaptive management, through agreement between RSCP, NMFS, USFWS, and CDFG will be used to adjust the protocol as necessary. As a result of the issues raised at the meeting, NMFS has agreed to review data and records provided by RSCP, MPWMD, and CDFG to determine if the implementation and effectiveness of the operational protocol is adequately protecting the aquatic resources of Moore’s Lake and downstream in Las Garzas Creek." Exhibit F-1
To date, agreement has not been reached regarding a revised protocol, as described in a series of letters from NMFS (now NOAA Fisheries) to RSCP or its consultants (Exhibits F-2, G, H, and I, Letters of 6 May 2002, 8 July 2002, 31 January 20003, 20 March 2003). As of 20 March 20, 2003, NOAA Fisheries remained dissatisfied with the plan for work prepared by consultants for RSCP for an environmental analysis required by the SWRCB, and noted that “NOAA Fisheries believes that potentially significant impacts to listed steelhead populations may be occurring as a result of current operations and implementation of the [existing] Protocol.” Exhibit I.
NOAA Fisheries has also expressed a serious concern regarding interception of unmeasured flow from springs by Moore’s Lake that would otherwise reach Garzas Creek. In its letter of 8 July 2002, Exhibit G, NOAA Fisheries noted that the “… artesian flow of well S-1 in the San Francisquito Flat area, the observation that the area contains ‘extensive wetland soils,’ and the 2001 flow records that show outflow and pumping exceeds inflow by as much as 0.25 cfs in late May, bolsters the argument that ground water springs are contributing to the unimpaired inflow to Moore’s Lake – flow which is not measured at the Las Garzas Creek gauge above the lake.” This calculation does not include evaporation from the lake, and so understates the loss of unmeasured flow to the stream. Net evaporation from Moore's Lake during the summer, as estimated by consultants for RSCP, is "about 0.12 cfs" (Exhibit J, 26 October 2000 memo from Polly Boissevain of Camp Dresser & McKee). Therefore, the presence of Moore’s Lake results in significant loss of flow to Garzas Creek, even if no water is being diverted from the lake for human use.
Consultants for RSCP have speculated that under natural conditions water ponded on the San Francisquito Flat, creating a wetland on the site before Moore’s Lake was created, and that evapotranspiration from the wetland was approximately equal to evaporation from the lake, so that the presence of the lake has little or no net effect on flow in the stream. This speculation is not supported by the 1917 USGS survey. The mapped contours indicate that Garzas Creek had a moderate gradient across the San Francisquito Flat, (>0.015), and show the creek and three small tributaries well incised into the flat (note how the contours extend upstream along either side of the streams). In short, the map shows that the flats were reasonably well drained. Exhibit A.
In August 2002 a consultant (John G. Williams) for the complainants surveyed lower Garzas Creek up to the boundary between the park district and RSC property, along with a biologist from NOAA Fisheries. They found that the stream was discontinuous, and observed numerous juvenile steelhead in watered reaches or in isolated pools. Some of these pools were drying, and they observed juveniles that were dying for lack of water. Exhibit K.
Unauthorized Diversions by RSCP Have Harmed Public Trust Resources in Garzas Creek, And are Highly Likely To Do So Again.
The history described above documents that the issues raised previously relating to public trust resources in Garzas Creek and the Moore’s Lake diversion have not been resolved, and that unauthorized diversions by RSCP have caused significant harm to public trust resources, especially steelhead, a threatened species. Complainants ask the SWRCB to order RSCP to cease all non-riparian diversions pending the processing of Application 29282. In this instance, RSCP should not be allowed to continue non-riparian diversions for which it has no lawful permit.
As noted above, evaporation from Moore’s Lake during the summer has been estimated by consultants for RSCP at 0.12 cfs. By itself, 0.12 cfs would sustain a substantial amount of habitat for juvenile steelhead and for red legged frogs in lower Garzas Creek. Although the precise relationship between flow and habitat in Garzas Creek is unknown, it seems clear that steelhead habitat in Garzas Creek is limited by low flows during normal summers, and that an additional 0.12 cfs would substantially increase the available habitat. Hence, the loss of 0.12 cfs to evaporation from Moore’s Lake substantially reduces habitat for steelhead and red legged frogs in lower Garzas Creek. As described in the Staff Report, Moore’s Lake serves more as an amenity, associated with development on the Ranch, rather than as a reasonable water storage facility. Moore’s Lake is therefore an unreasonable use of water, and should not be permitted to continue.
Basis For Resolving This Complaint
The complaints herein could be resolved if the RSCP ceases diverting water from Garzas Creek for non-riparian or unreasonable riparian uses until it has secured a valid right for reasonable non-riparian uses. Complainants ask the Board to address this matter as soon as possible because of its implications for the survival of a viable steelhead population in the Carmel River and its tributaries.
DATED: August 6, 2003 Respectfully submitted,
Filed on September 8th 2003
CALIFORNIA ENVIRONMENTAL LAW PROJECT
By:
Laurens H. Silver
Attorney for Complainants
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