State Water Resources Control Board Division of Water Rights
P.O. Box 2000   Paul Bonderson Building 901 P St
Sacramento, CA 95812  Sacramento, CA

ATTN: Mike Falkenstein
            Kathryn Bare, Reference No.  331:KGB:31014
 

RE:  SWRCB Request for Information, dated January 4th, 2001
         Protest of: APPLICATION 131014   Lucasfilm Ltd.

The Sierra Club - Marin Group continues to believe that this proposal fails to adequately mitigate effects on Environment, Public Interest, Public Trust, and Other Issues including SWRCB Order 95-17 and California Department of Fish and Game Code 5937.  The Marin County EIR failed to adequately examine the effects of this diversion on Nicasio Creek upstream of Nicasio reservoir, and its existing fisheries populations within, the importance of these fisheries resources and their freshwater needs, and the cumulative impacts of this and other diversions.

We have received copy of letter dated November 1, 2000, from Stephen E. Grinnell of Navigant, the Applicants consultant.  We find that some of the applicant's assertions are incorrect, misleading, and contrary to the record.

• California Department of Fish and Game Code 5937 mandates that holders of permits are required to keep the fisheries below their dams in good condition.  This code should be strictly adhered to.  Also to consider are mandates of the Mono and Yuba River decisions.  There is no mention of this higher law in County documents.

• With regard to the EIR prepared by the County, there apparently was no investigation of fish populations either presently, historically or potentially in the Lucas Valley and Nicasio Creeks which are fed by this drainage.  Claiming insignificant impacts based on the project's percentage of the overall watershed of Nicasio creek does not adequately address effects on the much smaller but blue-line tributaries which have resident native steelhead trout, genetically able although not physically able to go to sea because of man-made impediment of Nicasio reservoir.

 Landlocked steelhead trout, Oncorhynchus mykiss, exist in Nicasio Creek above Marin Municipal Water District's (MMWD) Nicasio Reservoir and below the applicant's project... these fish are most likely the remnants of the historic run of salmonids that once ran Nicasio Creek.  Eric McGuire (MMWD Environmental Services Coordinator) acknowledged the existence of trout in the streams above Lake Nicasio. Eric McGuire; Willis Evens, former DFG fisheries biologist, pers.comm

MMWD used to truck migrating salmon and steelhead up from below the reservoir and release smolts (caught in traps above) below the reservoir each spring as "mitigation" for the Nicasio Reservoir. Willis Evans, ret. DFG Fisheries Biologist, Tomales Bay Watershed, Fall 1995

In the Applicant's November 16th letter to SWRCB, it is acknowledged that small trout have been seen by Eric McGuire, the MMWD Environmental Coordinator, and that fish were observed in disconnected pools of a Nicasio tributary.  The occurrence of disconnected pools indicates a critical level of flow, below which mortality can result.  Further dewatering during critical dry summer months could result in extirpation of these salmonids.

• That National Marine Fisheries Service has withdrawn its protest is merely a bureaucratic technicality and does not negate the fact that landlocked anadromous exist in this creek.  These fish are landlocked as a result of poor management decisions, and as such this does not justify the incremental destruction of our once plentiful salmonid fisheries.  Miles Croom, NMFS biologist and NMFS representative to the Lagunitas Creek Technical Advisory Committee, stated in a telephone conversation on February 1, 2001, that while NMFS has withdrawn its protest, these "trout in Nicasio Creek are potentially important to the long-term recovery plan for steelhead and it is important to see if they are related genetically to the known anadromous steelhead (below Nicasio Reservoir)." Miles Croom, personal communication

• In the event that the SWRCB allows this petition, the Board should ensure that sufficient continual releases be mandated so as to keep the downstream aquatic species in good condition, and instruct the applicant to work in cooperation with Bodega Marine Laboratory, or Jennifer Nielsen of Stanford University, to determine the genetic uniqueness and maintain the genetic diversity of the resident trout that are likely the last remnants of Nicasio run steelhead.  Potential detrimental effects on these remnant populations are not adequately resolved by EIR mitigation measures.  We submit that water for enhancement of fish and wildlife resources in Nicasio Creek are beneficial uses, which are affected by the Lucasfilm proposal and have been woefully under-appreciated in the EIR and the proposal submitted.

• Red-legged frogs are listed.  The Applicant asserts that there is no evidence of red-legged frogs in Nicasio Creek.  However, see Unit 12 of critical habitat Unit, included in Federal Register Vol. 65 # 76, Monday, September 11, 2000.) Nicasio Creek and tributaries to Nicasio Creek are known to have red-legged frogs.  Jules Evens, Personal Comm.  Mr. Evens indicated he has personally observed red-legged frogs in Nicasio Creek at the Nicasio Bridge.

Red-legged frogs have been observed in Nicasio Creek and within upper Nicasio Creek tributaries, including good numbers in at least one within the Lucasfilm holdings, Bulltail Creek.  Bob Chamberlain, Personal Comm.

• The present number of stock ponds or other water diversions on streams tributary to Tomales Bay, Lagunitas Creek, and Nicasio Creek need to be documented and an evaluation of the cumulative long-term effect on the fishes and the ecosystem of Nicasio Creek and Tomales Bay by this and the many stock-pond diversions which have proliferated over the years within the Lagunitas and greater Tomales Bay watersheds needs to be performed.   The County report states the Lucasfilm proposal would have no environmental effect on Tomales Bay because it is affecting only a small percentage of the watershed, but the issue of cumulative effect has been virtually ignored. The proliferation of "stock ponds" can be observed by examining USGS maps and readily available aerial photographs from current to the 1950s.  We believe there may be hundreds.

The aspect of cumulative impact is a continued concern. The transcript of hearings in 1980 and 1981 leading to SWRCB Decision 15-82 contains repeated testimony regarding freshwater removals from Tomales Bay and refers to a paper by Michael Rozengurt that states that when 30 percent of freshwater input has been removed from an estuary, a critical point has been reached and that further removals can cause massive changes in the biological structure of the eco-system. The testimony indicates that the critical point has been reached for Tomales Bay (Transcript 12-8-80 P.64 Thomas Yokum, USNMFS)

The Applicant obfuscates this potential by referring to the admittedly relatively minimal effects during high rainfall years, and ignoring the potential effects during normal and lower rainfall years, during normal dry periods within those years and combinations of the above, whereby the aggregate could have potential to serve as a last-straw effect on the Bay.

• Unless there are provisions for ample scheduled releases, and especially adequate monitoring of downstream fisheries habitat conditions to ensure habitat enhancement, the application constitute a waste, unreasonable use, and unreasonable method of use of water under the California Constitution and Water Code.  We understand that there may be at least one other well (not mentioned in the EIR) on the property such that there may be sufficient well supply for both domestic and fire fighting capability without this dam.  Bob Chamberlain, Personal Comm. and protest dated 6-24-00

• The purpose of the Lucasfilm diversion is ostensibly for wildlife enhancement as well as fire reserve and recreation, however it appears that the aesthetics is the sole purpose for retaining a full pond, which the applicant is striving for. We submit that this is clearly a waste of resources and that the diversion is not augmenting or assisting in any instream habitat, which by DFG Code 5937 requires any permit holder to maintain the fisheries below in good condition. This diversion is of private benefit with little public trust considerations.  In order to mitigate this oversight and to be of benefit to the public trust, there needs to be additional mitigation for the take of water.

• Should the SWRCB approve this proposal, we agree with and support in principle the protest by North Marin Water District (NMWD) and the conditions suggested by the district to be imposed upon the applicant during low rainfall years, with modifications outlined below.  Because the applicant will hold rights junior to all others in the watershed, we believe it appropriate and defensible for your agency to hold Lucasfilm to the no take conditions imposed on NMWD's junior rights within Lagunitas Creek.  The Marin County EIR has no analysis and little if any mention of the historically and environmentally significant SWRCB Order 95-17, although it does acknowledge that various water agencies need to determine the appropriate discharges.  We believe that it is therefore appropriate to call for releases.

During Normal Rainfall years, as defined by SWRCB Order 95-17, we call for a minimum flow of at least 30 gpm to be maintained during the period of April 30th through December 1st.  The County and Lucasfilm consultant estimates for average evaporation rate from the reservoir is 27 gpm during the runoff period.  Any rainfall events can serve to meet, augment, or surpass such requirement.  The release intake should be at a lowest level practical in order to keep creek temperatures as low as possible.

During Dry-Year periods, as defined by Order 95-17, whatever amount Lucasfilm has in the pond above 24AF fire reserve should be released at a rate to empty the pond by the next foreseeable date of eligibility to divert, i.e. the following December 1st.  Lucasfilm should not be allowed to divert (capture) water during this dry-year occurrence.   If there is insufficient rainfall to produce a normal rainfall year by that date, Lucasfilm should be required to not divert until normal year rainfall is established.  The normal year 30 gpm requirement shall not go into effect unless diversion has commenced during the December 1 to April 30th period, and in any event will not be required from below the 24AF minimum pond level.

• If Lucasfilm desires to maintain the pond at capacity for appearance and aesthetic reasons, they will be able to utilize the wells on the property.  It should be recognized, however, that wells are not an endless supply and can affect surface waters.  Given that we are asking that the normal year releases commence on April 30th, it seems likely that the pond will stay near capacity until at least mid-summer in most years.
• Finally, there needs to be some accurate way of determining inflow to the pond, which is water coming from the overlying streams, hills and sky, in order to assure that there is no diversion of surface waters in the normal periods of no-take.  The consulting engineer opined that Lucasfilm is not a dam operator... but in reality, that is exactly what they will be...and therefore we, and SWRCB, should therefore expect nothing less in order to protect the public trust resources.   As noted in Order 95-17 and within testimony of the supporting 1992 hearings, summer flows are critical for salmonid habitat.

• Regarding the December 21, 2000 letter on behalf of North Marin Water District, we fully agree that the senior rights held by NMWD, although junior to Marin Municipal Water District (MMWD), should be expressly acknowledged by this Application.  Most important, the Applicant's diversions to storage should be curtailed in a dry year, using the same definition made applicable to NMWD in the SWRCB Order 95-17.  We do not acknowledge or recognize any benefit to the environment by monetary compensation, therefore cannot support that alternative.  We support a finding pursuant to Government Code Section 11425.60 and 23 California Code of Regulations section 648, that a decision in favor of Application No. 31014 shall not be used as precedent for future SWRCB decisions or orders on appropriation of water from the Lagunitas Creek system.

• With regard to the MMWD emergency agreement, we demand that unless there is a demonstrably overwhelming benefit to public trust resources, that the releases be gradual and spread out over the entire season, and not to 7-day period.  During summer dry periods, a 300cfs flow surge would have a devastating effect on the instream habitat.  According to Bill Cox, CA DFG Fisheries Biologist for Marin and Sonoma Counties, "I would definitely not want any surge releases that drained it in just a few days.  Such a surge could be very destructive of aquatic life."  Bill Cox,  District Fishery Biologist, Sonoma / Marin - California Dept.of Fish and Game, via e-mail  31 Jan. 2001

• Considering the potential for effects to public trust resources, we believe that the burden of proof should fall squarely upon the applicant, not on Protestants who clearly have no conflict of interest.  Regarding arguments as to undetermined effects on gravel recruitment, we have merely pointed out an obvious flaw in the environmental investigations, which need to be further analyzed. The potential effects cannot be justified as insignificant because of the former existence of an illegally constructed dam.

We met with the Applicants consultants in an attempt to come to some compromise and understanding such that we could withdraw our protest, and we agreed unilaterally to lower the releases we had called for in order to come to a reasonable level that both the fisheries and Lucasfilm could live with, however they indicated no willingness to discuss any compromises, and indicated that the project (which has moved thousands of tons of earth and disturbed the Creek) is somehow better for the environment.  While we acknowledge that their agricultural management plan is sound, and we view this plan as exemplary, it is clearly not mitigation-- as the land is already agriculturally zoned. Their letters subsequent to our meeting are disappointing in failing to understand the importance of any of our concerns, the importance of instream habitat, and the values of wildlife enhancement, which their project purports as a purpose. Regretfully, this leaves us with no recourse but to continue our protests. Should the SWRCB determine there is insufficient evidence, we ask for a time extension and more direction as to the requested information.  Thank you for your consideration.
 

Sincerely,

Gordon Bennett, Conservation Committee Co-Chair

State Water Resources Control Board Division of Water Rights
PO Box 2000, Sacramento, CA 95812 / Attn: Kathryn Bare, Via Fax 916-657-1485

Re:  Protest - Lucasfilm Notice of Application to Appropriate Water #31014
The Sierra Club - Marin Group (Sierra Club) recommends that the SWRCB deny Application 31014 based on Public Trust, Public Interest, Environmental and other Concerns per:

Lucasfilm's Application to Appropriate Water has not demonstrated a reasonable beneficial use.  The proposed firefighting and domestic needs may be able to be met through existing supply wells without significantly impacting the watershed.  Landscaping choices to improve the viewscape of office workers do not constitute a beneficial use of California's scarce water resources.  The Conditions for Approval requires the applicant "to minimize the combined 6% net loss of water to the recharge of the alluvial stream acquifer," yet the Lucasfilm Civil Engineering Report (pg 1-4) proposes that a reduction to only a 5.2% figure satisfies the constraints.  Nature is not a Hollywood set that can be manipulated for eternity by stagehands or engineers. The Sierra Club requests that Application 31014 be denied until these issues are addressed.

Lucasfilm diversions are from tributaries to Tomales Bay, an impaired water body, per EPA. Studies have shown that Tomales Bay is at the critical point at which additional diversions can cause significant changes in the ecosystem.   Many of the existing diversions are un-permitted and their cumulative effects un-calculated.  The existing stock pond that Lucasfilm proposes to expand and legalize is also un-permitted.  The Sierra Club requests that Application 31014 be denied until the SWRCB determines the cumulative effects of multiple diversions on the health of Tomales Bay and the appropriateness of the Lucasfilm diversion within this to-be-discovered context.

Lucasfilm diversions are from tributaries to Lagunitas Creek, a fully appropriated stream, per SRWCB 95-17, with releases mandated for salmonid protection.  In addition, Point Reyes National Seashore has acquired the Giacomini Ranch at the mouth of Lagunitas Creek for the purpose of restoring it to natural wetland functioning and has senior rights that could be impacted by upstream diversions. Sierra Club requests that Application 31014 be denied until the SWRCB requires Lucasfilm to refrain from impounding in the Lagunitas Creek watershed during dry years (per SWRCB 95-17) and confirm that downstream water use is not negatively impacted by their diversion and storage.

Lucasfilm diversions are from streams containing landlocked steelhead trout (Oncorhynchus mykiss) that constitute the original genetic stock blocked from its natural range by Marin Municipal Water District's (MMWD) Nicasio dam (per MMWD mitigation plan).  Downstream tributaries also contain both red-legged frogs (Rana aurora) and yellow-legged frogs (Rana boylei).  California Fish and Game  (Code 5937) requires that permit holders keep downstream fisheries in good condition.   The current agreement between MMWD and Lucasfilm that requires discharge within 7 days down to the 24AF Fire Protection level treats water as a commodity to be passed down to the senior rights holder, ignoring habitat needs and erosion/sedimentation effects.    Sierra Club requests that Application 31014 be denied until mandated releases to Nicasio Creek are monitored to insure adequate and continuous flow to maximize habitat value and to minimize erosion and sediment transport to Nicasio Reservoir.

Sincerely,

Gordon Bennett, Conservation Co-Chair