Tomales
Bay Association
SIERRA CLUB MARIN GROUP
P.O. Box 369 Point Reyes Station, California94956 P.O. Box 216 Muir Beach, California, 94965
30 July 2001
Chris
DeGabriele, General Manager
Board
of Directors
North
Marin Water District
P.O.
Box 47
Novato,
CA 94947
Re:
Proposed Mitigations for North Marin Water District's (NMWD) Proposed Notice
of Exemption For Change in Place and Purposes of Use for 0.67 cfs of Lagunitas
Creek water under State Water Resources Control Board (SWRCB) License No.4324B
Dear
Sirs,
The
Save Tomales Bay Committee believes strongly that win-win possibilities
exist for both North Marin Water District customers and Papermill / Lagunitas
Creek.In contrast to the headlines
of the 7/19/01 Point Reyes Light, Save Tomales Bay is not “challenging”
the water supply of local communities.Instead,
we support the increased reliability of community water supplies and support
the rights of local communities to determine their own futures.However,
NMWD’s present plan would provide enough water for a buildout of over four
times what is currently planned in the local communities.To
induce quadruple-buildout potential is unneeded, unjustifiable, and carries
considerable risks and costs.NMWD
should be complying with local community plans, not attempting to pre-empt
them.
While
NMWD has made real improvements to the inadequate local water systems that
it took over, clearly NMWD’s current system also needs much improvement.When
its own customers lack water supply over the July 4th weekend, and when
its system lacks adequate fire supply and basic seismic protections, then
we believe it is reasonable to ask why NMWD continues to subsidize growth
outside its service area, continues to accumulate water for use outside
its service area, continues to calculate growth outside its service area
into its future water needs, and why NMWD’s plan to service quadruple the
growth of local communities has never been made public.
To
bring NMWD’s water supply in line with community plans, Save Tomales Bay
insists that NMWD put an immediate freeze on expansion of its Point Reyes
Service area, that NMWD return to the creek all water in excess of that
needed for planned community buildout, and that NMWD adopt more conservative
financial, environmental, and water-use policies.
Our
proposals will leave the local communities’ actual required water supply
untouched, with over 100% of the water needed for planned buildout remaining.Our
proposed mitigations will leave local communities using the new Giacomini
water with less exposure to summer droughts at a savings of $100,000 for
the MMWD Intertie water.We propose
that NMWD transfer only water rights in excess to planned buildout needs
at fair market value and support its return to instream use.Proceeds
from the sale of excess water rights would enhance the system and storage
improvements recently endorsed by local communities.We
further ask that NMWD not to waste its customers’ money on unneeded and
costly dams that kill fish.Our proposals
will strengthen the voice of local communities in decisions on potential
expansions of their water district.Finally,
we ask NMWD to move forward on long-standard conservation measures that
have been requested by the local public, but still remain un-offered.Our
four proposals follow:
1.Transfer
Excess NMWD Water Rights for Instream Use:
NMWD
Director Rodoni, in the 7/19/2001 Point Reyes Light, notes in regard to
excess NMWD water: “the new (.67 cfs) acquisition would give
North Marin roughly twice the amount of water needed to supply its customer-service
area at buildout.”Save Tomales
Bay agrees with Director Rodoni.Under
the current arrangement, during drought years NMWD has available only water
purchased from MMWD, although as Director Rodoni notes: “MMWD is a short-term
solution.”It was the understanding
of Save Tomales Bay that NMWD wanted to replace this MMWD water with the
more reliable Giacomini source, but did not wish to significantly expand
its take.Instead, we now find that
NMWD wishes to add the Giacomini water on top of the MMWD water and augment
its already over-plentiful junior rights.
Using
normal conservation, this would enable a buildout of over 200%, or four
times the buildout of about 50% that is currently planned in NMWD’s Point
Reyes service area communities.While
we agree that NMWD is not a planning agency, NMWD should be complying with
land use plans-- not undermining them.
Save
Tomales Bay believes NMWD should stick to its original intention of substituting
Giacomini water for MMWD intertie water during low rainfall years.Because
there is more water available from the Giacomini rights than via the MMWD
Intertie agreement, drought conservation measures will not likely be necessary
in the immediate future, and will be significantly lessened at the ultimate
buildout.However, to add the Giacomini
water to the existing NMWD rights and MMWD intertie water completes a pattern
of water availability in both normal and drought years that is over twice
what is required.Even if this excess
water does not encourage buildout beyond that currently planned, its continued
availability will foster a habit of wasteful use of a critically important
environmental asset.If, however,
the District adopts our proposals, this excess water would instead become
a financial asset to the District! .
Our proposed transfer of excess water protects NMWD’s reasonable water needs up to planned buildout level as well as contributing to NMWD’s financial needs.Save Tomales Bay has approached the National Park Service (NPS), which has agreed to seek to purchase at fair-market-value excess water beyond that which will be needed at full buildout in the land use plans for the local communities in NMWD’s Point Reyes service area.NPS would return acquired water rights to instream use as per CWC Section 1707 (Sec.2) “any person entitled to the use of water, whether based upon an appropriative, riparian, or other right, may petition the board…for a change for purposes of preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in, or on, the water.”
Therefore,
as Mitigation #1 for its Proposed Change in Use, NMWD should:
a)
Sell to NPS at Fair Market Value (FMV) 0.961 cfs of surplus NMWD water
rights under Permit No 19725;
b)
Use the sale proceeds from the water (in a) to augment for the benefit
of the customers the recently approved system and storage improvements
in the Point Reyes service area;
c)
Contract with NPS for the release at NPS request of up to 250 Acre Feet
of water for instream use at FMV per Section 8 of the 3/11/93 NMWD/MMWD
Intertie Agreement;
d)
Support NPS petitions to the State Water Board for return of water to instream
use;
e)
Not expand water sources unless in an amount justified by a change in community
land use planning; and
f)
Recognize the significant financial contributions already made by NPS,
which equal or surpass in-district connection fees, by including PRNS Bear
Valley complex within the NMWD service area with a legally binding agreement
for water service.
2.
Permanent Prohibition on Dam in Lagunitas Creek:
NMWD
presently has a legal right to install a dam across Lagunitas Creek if
needed to prevent saltwater intrusion into its wells.However,
the State Water Board determined that such a dam would also pose a significant
threat to the endangered salmonids, such that the cost and complexity for
NMWD to exercise this right could be substantial -- to the point of being
prohibitive.Furthermore, NMWD has
demonstrated that with careful management it can operate its water system
safely to avoid saltwater intrusion without a dam.NMWD’s
operational safety margin will be augmented by the eventual NPS return
to instream use of water now used for the Giacomini Ranch, and by the NPS
removal of dikes.Additionally, the
recently approved increase in fire storage will assist the operational
flexibility needed to prevent saltwater intrusion.Lastly,
NMWD does have fish-friendly alternatives to prevent saltwater intrusions:
either a temporary aboveground pipe to its Gallagher wells or a submerged
clay lens to increase freshwater pressure.
Therefore,
as Mitigation #2 for its Proposed Change in Use, NMWD should give up its
legal right to construct any dam on Lagunitas Creek.
3.NMWD
Expansions To Be Determined by its Customers:
NMWD
Director Amaroli, in the 7/19/2001 Point Reyes Light, notes in regard to
expansion“the community has to
decide whether or not it builds new projects.”Save
Tomales Bay agrees with Director Amaroli’s intent that NMWD should allow
its existing customers in its current service areas to make
expansion decisions for their own districts.However,
the language of the Amaroli Anti-Pioneering Measure 81-63 actually allows
such expansion decisions to be made by potential customers in proposed
new service areas.Save Tomales
Bay believes that the language of Director Amaroli’s Measure should more
clearly follow Director Amaroli’s intent by strengthening community decision
making on potential expansion of the community’s own service area.
Even
if not “officially” expanding the District, NMWD policies in effect continue
to subsidize the expansion of water service outside its district.New
water customers within the district are required to pay significant connection
fees that represent their fair share of the system cost, while new customers
outside the district pay a fraction of these connection fees.The
risk taken by these outside customers is described as “limited water
service” using “surplus water.”But
in fact, water use outside the District is included in NMWD’s current capacity
and also in its buildout calculations.Thus,
even after our proposed transfer to NPS of water excess to the planned
buildout, out-of-district customers are free-riders that carry no risk
to offset the benefit of their lower connection fees.Yet,
NMWD’s legal responsibility extends only to the limits of its District,
and to its customers within it who have contributed their fair share to
the costs of the system.This backdoor
to expansion outside the district must be closed, the subsidy eliminated,
and the risks and benefits balanced.
As
the Inverness PUD Ordinance 55-2001 notes, “an out-of-District customer
places on the District’s Water System an incremental burden to upgrade
and expand its facilities, and that the necessity to so upgrade and expand
facilities will occur sooner as a consequence of accepting out-of-District
customers to whom the District has no obligation to provide service…an
out-of-District service should pay an additional charge, called the Service
Area Expansion charge, in order that the District’s own customers are not
burdened for obligations attributable to out-of-district customers…equal
to fifty percent (50%) of the New Service Connection Fee.”
Therefore,
as Mitigation #3 for its Proposed Change in Use, NMWD should:
a)
Place an immediate freeze on outside users joining the Point Reyes Service
District, except per Mitigation #1 f.
b)
Obtain the approval of a “clear and substantial majority” (2/3rds) of existing
customers in a service area before undertaking studies regarding expansion
of the District;
c)
Require that all existing and new out-of-district customers either petition
to join the district and pay full connection fees and back-taxes, or remain
outside the district and pay 50% of the in-district connection fees;
d)
Use these newly collected out-of-district fees to augment the recently
approved system and storage improvements;
e)
Impose all reductions in water use that may be required by drought (except
for water required for essential human health use) first on out-of-district
users before doing so on any in-district users;
f)
Charge the costs of any additional water needed for out-of-district use
wholly to out-of-district users, not proportionately to all users.
4.
Tiered Conservation Rate Structure:
Save
Tomales Bay believes NMWD should follow the water industry’s Best Management
Practice of tiered conservation rates so that larger users pay more per
cubic foot than smaller users, as requested by the community at NMWD’s
recent Point Reyes hearings.Conservation
of resources is not merely a “personal virtue.”Every
provider of public utilities must incorporate an ethic of conservation
into its policies; otherwise waste of resources will become both private
habit and public policy.The Marin
Planning Department has already received an application from a new West
Marin resident wishing to install an 8,000 square foot lawn requiring 5,600
gallons of water per day during peak summer conditions when water systems
and local streams are under stress.While
it is true that water from Warm Springs dam, the Russian River, or the
Eel River are in theory available to NMWD’s West Marin customers, in practice
the cost to deliver this water is very high and the long-term reliability
is very low.After all, these are
the same constraints that drove NMWD to obtain the Giacomini water. Importing
water from these sources may mitigate environmental consequences in West
Marin, but will increase environmental impacts in the Russian and Eel River
watersheds, already documented as some of the most impaired in the United
States.Conservation is always the
preferred environmental and financial alternative to expanding supply.The
Division of Water Rights has numerous studies documenting the effectiveness
of tiered rates in encouraging water conservation.
Many
public service suppliers in Marin have tiered conservation rates, except
for North Marin.Marin Municipal,
Pacific Gas and Electric, Shoreline Disposal, and Inverness Public Utilities
District have tiered rates to encourage waste reduction.[For
example, the cost for a Shoreline Disposal truck to pick up a second waste
can from an individual customer is a fraction of the cost of picking up
the first can, yet the Shoreline rate for the second can is higher.This
added cost is not to subsidize the small users, but rather to provide price
information to the large users in order to encourage conservation.]All
these public utilities base their rates on their costs, but do so on an
overall basis.Tiered rate structures
can be revenue-neutral, matching overall revenue with overall costs, yet
still provide individual customers with important conservation incentives.
Therefore
as Mitigation #4 for its Proposed Change of Use, NMWD should:
a)
Convene an advisory committee, including staff, environmentalists and other
interested citizens, to develop over the next year a proposal for a revenue-neutral
tiered conservation rate to be presented to customers in the Point Reyes
Service Area for their review and comment.
b)
Adopt a tiered conservation rate if a majority of the Service Area customers
endorse.
c)
Adopt emergency water shortage ordinances similar to Inverness Pubic Utility
District so that NMWD can move quickly in emergencies.
As
the 4/18/96 Phil Williams Memorandum notes: “NMWD’s primary goal appears
to be increasing the reliability of its water supply during dry years,
rather than a major expansion of diversions.(But)…will
the transfer of (Giacomini) water rights translate into increased water
diversions by NMWD in dry years?The
answer is yes, because presently NMWD has to curtail summer withdrawals
in dry years….transfer of the…senior water rights would allow them to eliminate
this restriction.”
Save
Tomales Bay will support increased reliability of NMWD’s water supply,
but only without a major expansion of diversion rights.However,
the current NMWD plan represents exactly that: a major expansion of diversions.The
current NMWD plan includes:favoring
supply-side expansion over demand-side moderation; subsidizing out-of-district
expansion; refusing to implement conservation measures; potentially quadrupling
planned buildout; and acquiring and holding assets for outside district
uses when inside district needs go unmet.In
our opinion, NMWD is not fulfilling its mandate to adequately and responsibly
provide service inside its District by exceeding its mandate outside the
District and undermining local planning authority.NMWD
should be serving its customers, not gambling on future development.
NMWD’s
proposal to support the potential quadrupling of planned buildout in local
communities carries particular risks and costs for its customers.Save
Tomales Bay urges NMWD Directors to carefully consider whether or not its
customers would support such a major expansion.We
submit that the basis on which such an expansion rests is not solid, on
two accounts:
·
First, there is a well-documented cloud over the existence of the additional
rights NMWD proposes to use to quadruple buildout and Save Tomales Bay
would argue that the legal cloud over this water should be cleared.There
is no evidence to support the contention that a full 2.67 cfs had ever
been used by the Giacomini Ranch;
·
Second, there is well-documented evidence of environmental impact from
the additional water NMWD proposes to divert in order to go forward with
its plan to support quadruple buildout and/or expansion of water use.The
potential for expansion or use is very real given the increase in water
rights afforded the district.Save
Tomales Bay is prepared to argue that the environmental impact documentation
should go well beyond the Proposed CEQA Exemption.
Whether
these legal and environmental concerns are ultimately determined in our
favor or in North Marin’s favor, they would clearly be complex and costly
to resolve.On the other hand, we
believe our proposed mitigations represent an appropriate balance between
the needs of NMWD customers and the habitat needs of west Marin, with both
benefiting.Our proposals continue
to satisfy the planned buildout needs and provide financial support for
planned system improvements.Yet
our proposals also provide a basket of environmental benefits that mitigate
potential impact on habitat from using the Giacomini source.If
our four mitigations outlined above are agreed to, then Save Tomales Bay
would support a CEQA Exemption for NMWD’s Proposed Change in Use for the
Giacomini Water.Thank you for the
opportunity to air our concerns.Please
get back to us at your earliest convenience for any questions you may have
and to further discuss our proposals.
Sincerely,
Kenneth
J. Fox, President,
for
the Tomales Bay Association
Gordon
Bennett, Conservation Chair,
for
the Sierra Club
Letter from Gordon Bennett and Kenneth Fox on June 19, 2001
SAVE TOMALES BAY
Tomales Bay Association SIERRA
CLUB MARIN GROUP
PO Box 369 Point Reyes Station, California, 94956
PO. Box 216 Muir Beach, California, 94965
19 June 01
Chris DeGabriele, General Manager
North Marin Water District
P.O. Box 47
Novato, CA 94947
Re: North Marin Water District (NMWD) Proposed Notice of Exemption
For Change in Place and Purposes of Use for 0.67cfs of Lagunitas Creek
water
under State Water Resources Control Board (SWRCB) License No.4324B.
Dear Mr. DeGabriele:
As you recall, at the NMWD Board of Directors meeting of May 15, 2001, the Sierra Club - Marin Group and the Tomales Bay Association, with support of other environmental groups, voiced their objections to an agenda item concerning the above Proposed Notice of Exemption. The purposes of this letter are threefold: Part One is to more clearly express our legal concerns; Part Two is to more clearly define our environmental concerns; and Part Three is to suggest that we believe another meeting could resolve both of these concerns in a mutually satisfactory manner. Much of our research on these issues comes from the pubic documentation on the Giacomini Ranch purchase, SWRCB Order WR 95-17, and the pro-bono work of various entities involved in both the WR 95-17 proceedings and the more recent MMWD Bottled Water proceedings.
PART ONE: LEGAL CONCERNS
The Save Tomales Bay Committee believes that there exists considerable doubt about whether the Giacominis actually continue to own the rights tithe 0.67cfs transferred to NMWD. California Water Code (CWC) Section 1241 provides for loss of appropriative rights after five years of non-use. Although the Giacominis held 2.67 cfs of appropriative rights under SWRCB License 4324 for use during the irrigation season, WR 95-17 (pg. 33) indicates that "in 1991, Giacomini diverted about 1.61 cfs during the irrigation season." Save Tomales Bay believes that this figure of 1.61 cfs is typical and that the Giacomini use for has averaged between 1.6 - 2.0 cfs for substantially longer than the five-year period specified in CWC 1241.
In fact, the May 15, 1996 Water Rights Assessment prepared by the Water
Rights Branch of the Water Resources Division of NPS (pg. 6,7) notes that
the Draft Water Rights Agreement between Giacomini and NMWD describes the
Giacomini water proposed to be transferred to NMWD as "excess or surplus"
to"the 1.6 cfs currently used by the Giacominis for irrigation."
Furthermore, a June 19, 1996 letter from the National Park Service (NPS)
Water Resources Division notes:
"There is little doubt that the wetlands restoration would
be enhanced by the NPS's acquisition of the entire 2.67 cfs right, but
there is a cloud over several aspects of the Giacominis' water use and
the rights permitting such use...if (the) Giacominis lack documentation
to support a claim of continued use of the entire 2.67 cfs, the right for
the unused portion would be nugatory if the state acted to cancel it due
to non-use...acquisition of these "potentially questionable" rights could
precipitate costly litigation with the NPS defending rights that may be
tenuous, at best."
Last year, NPS purchased the Giacomini Ranch property and associated water rights sufficient to allow the existing ranching operations to continue. As a result of concerns regarding water rights, including those outlined above --and the lack of any documentation to dispel those concerns, NPS agreed to purchase only 2.0 cfs of the full 2.67 it desired, and the Giacomini Ranch sold the "excess" 0.67 cfs to NMWD. It is understood that the Giacomini family intends to maintain their current level of on-going operations until 2007. Had the Giacomini Ranch been using the full 2.67 cfs, it would be unlikely that they could achieve a 25% reduction in their normal operational needs for water --and unreasonable for them to agree to such a reduced level. Because the Giacominis had been using only 1.6-2.0cfs, it is evident that they retained the amount of water they had bemusing, would continue to use, and had the best documentation for. The water rights sold to NMWD, regardless of whether the sale date preceded or followed the sale to NPS, were for "excess or surplus water" which lacked documentation. The Save Tomales Bay Committee believes there is considerable evidence to support our contention, voiced at the May 15,2001 NMWD Board meeting, that Giacominis' 0.67 cfs appropriative right has been lost due to non-use for a five-year period and that NMWD's Proposed Change in Place and Purposes could be considered invalid if challenged.
Furthermore, as noted in WR 95-17 (pg. 26): "counsel for North Marin argues that Water Code Sections 106.5and 1203, enacted in 1945, support recognition of an 'expanding municipal right under which a municipality's diversions grow as it grows...their effect would be to relax the diligence requirements that are otherwise applicable to the perfection of appropriative water rights, thus allowing a municipality to secure long-term rights known to be needed for future municipal development...under the doctrine of gradual or progressive development, the additional use must have been within the scope of the intent of the original appropriator and must be made within a reasonable time."
Even granting NMWD's assumptions for growth, which the Save Tomales Bay Committee believes are overstated by at least50%, the total amount of water claimed by NMWD for its peak buildout "Ultimate Demand" is 1.12 cfs in dry summer months and 0.75 cfs in wet months, as noted in the 2/28/92 NMWD spreadsheet. This 0.75 cfs wet month build-out figure is substantially less than the existing Junior 1.66 cfs which are available to North Marin in normal rainfall months. Similarly, North Marin's 1.12 cfs Summer Peak Buildout Demand is substantially less than the proposed 0.67 cfs Senior Giacomini Rights combined with the NMWD/MMWD Intertie Agreement's 250 acre-feet, which when taken over the four dry months would add 1.0cfs for a total of 1.67 cfs. Under the CWC Doctrine of Progressive Development, there should be, as WR 95-17 notes "evidence of a long-term plan for increased water diversions."
In contrast to this requirement for a long-term expansion plan to justify retention of water rights in excess of water use, NMWD maintained at the May 15, 2001 Board Meeting that there were no plans for expansion of its service area, and specifically mentioned the "George Amaroli Anti-Pioneering Measure" (Board Resolution No. 81-63) as evidence that NMWD had no such plans for expansion. While the Save Tomales Bay Committee prefers to believe NMWD's May 15, 2001 statement that it has no expansion plans, the language of Resolution 81-63 is of questionable support. If NMWD's "no expansion" statement is correct, then there should be no long-term plan to justify the retention of "excess or surplus" water under Licenses No. 19724 and 19725. Furthermore, as noted in the Sierra Club's 2/15/00 letter to SWRCB, copied to NMWD, substantial excess water rights for use only within the current service area may encourage profligate water use during wet or normal years and seriously impact fisheries, especially in dry years, due to increasing resistance to conserve.
Regarding NMWD's purchasing the Giacominis'0.67 cfs as an additional allotment to its plentiful albeit junior water rights, the Save Tomales Bay Committee believes that attempts by NMWD to retain this excess or surplus water could precipitate costly litigation, with NMWD defending rights that may be tenuous at best.
PART TWO: ENVIRONMENTAL AND CEQA CONCERNS
It is simply not correct to conclude that the NMWD's Proposed Change merely substitutes a paper senior right for a paper junior right without any hydrological effect. The May 9, 2001 Memorandum to Petition For Change correctly claims "this project does not involve an increase in the volume or rate of diversion," but that is not the whole truth. In dry year summers, the Petition for Change would eliminate the need and use of the agreed 250 acre-foot MMWD-NMWD intertie release which would otherwise be added to the reduced minimal fish flow for NMWD's later diversion. In other words, in dry year summers, instead of the NMWD diversion coming from intertie water added to fish flow (as per intertie agreement), the same volume and rate of diversion would come directly from fish flows, with no added intertie water. Thus, the Proposed Change results in less water for endangered salmonids during critically dry years, a profound environmental impact.
A 4/18/96 Memorandum from Philip Williams &Associates, Consultants in Hydrology to NPS states: "based on MMWD's analysis, in the summer of the driest years, flows can be up to 1.25 cfs lower at the Gallagher gage than at the Park gage and some small additional losses may occur downstream to Olema Creek. Consequently, assuming WR95-17 is strictly enforced in the driest years [i.e. 6.0 cfs at the Park gage], there will be occasions when the late summer flows [i.e. July, August, September, October] at the mouth of the creek could be as low as 4.75 cfs." WR 95-17 notes (page 29) that "the Division's staff's analysis indicates that there would be...in the lower portion of Lagunitas Creek...almost no natural flow during summer months of dry years."
The entire 4.75 cfs noted in the Williams report could therefore attributable to fish releases required of MMWD by WR-95-17. But, NMWD's Licenses No 19724 and 19725, per WR-95-17, prohibit NMWD from diverting MMWD's fish releases. In order to supply its customers during dry year summers, NMWD currently relies on a 3/11/93 Intertie Agreement that requires MMWD to release up to 250 acre-feet per year, which averaged over the four dry summer months amounts to 1.0 cfs. Absent the Proposed Change, this 1.0 cfs would be added to the 4.75 cfs flow release, for a total dry year summer flow at NMWD's wellsite of 5.75 cfs. Diversions of Giacomini (1.6 cfs) and NMWD (0.67cfs) would represent 39% of this total critical condition flow.
Accordingly, with NMWD's Proposed Change, the dry year summer flow entering NMWD's wellsite would remain 4.75 cfs, yet the same volume and rate of diversion from Giacomini and NMWD would represent 48% of this total critical condition flow, a 23% greater diversion (post-change) compared to the existing situation. Measured at the Taylor Park Gage, dry-year condition flows would be 6.0 cfs (fish) + 1.0cfs (Intertie) in the existing situation, yet only 6.0 cfs, or a 14% reduction, under the proposed change.
But, as a 2/7/96 letter from SWRCB to MMWD notes: "With regard to MMWD's concern that SWRCB may not approve temporary reductions in release requirements during critically dry years, we believe there is historical precedent on this issue based on SWRCB's record of prompt approvals of temporary reductions for MMWD when conditions have shown a true need for such reductions."
Therefore, in "critically dry" years, the missing 1.0 cfs Intertie Flow would represent an increased percentage of any reduced release, thus causing a proportionately greater impact exactly when the habitat is most stressed. For example, if SWRCB allowed MMWD to reduce releases to 4.0 at the Park Gage, then losing a 1.0cfs intertie release represents a 25% additional reduction!
The 4/18/96 Williams Memorandum concludes: "Will the transfer of water rights translate into increased water diversions by NMWD in dry years? The answer is yes, because presently NMWD has to curtail summer withdrawals in dry years...transfer of the...senior water rights would allow them to eliminate this restriction."
The 4/18/96 Williams Memorandum also states: "assuming WR 95-17 is strictly enforced in the driest years [i.e. 6.0 cfs at the Park gage], there will be occasions when the late summer flows at the mouth of the creek could be as low as 4.75 cfs, which places the head of the mixing zone upstream of the Green Bridge. In these exceptionally dry years, a further reduction...would push the mixing zone further upstream, possibly confining the mixing zone habitat to a somewhat smaller area." Any possible reduction in the size of the mixing zone is important because, as WR 95-17 (page 97) notes: "Neomysid shrimp provide an important food source for salmonids in Lagunitas Creek...Analysis of stomach content samples of coho salmon and steelhead smolts...showed that Neomysid shrimp were the predominant organism consumed by the fish. The Giacomini dam reduces the size of the estuarine environment which decreases available habitat for the shrimp." Likewise, as the 4/18/96 Williams Memorandum suggests, increased diversions under NMWD's Proposed Change may reduce Neomysid shrimp habitat and impact threatened salmonids by "possibly confining the mixing zone habitat to a somewhat smaller area."
Additionally, as WR 95-17 notes, the Giacomini Dam helped NMWD prevent saltwater intrusions at its Coast Guard Well sites. A5/3/96 Memorandum from Philip Williams & Associates to NPS with a CC to Chris DeGabriele summarizes "the impacts of removing the Giacomini dam" and concludes: "With the existing system [i.e. without the dam], it is possible to operate without salt water effecting the wells for flows about 6 cfs, even though occasional spring tides push the salinity front upstream above the wells at high tide...with the ranch irrigation system being operated and diverting about 1.6 cfs...dry year...outflows could be reduced to about 4 cfs - which might make it difficult to prevent saltwater moving into the wells."
As the earlier 4/18/96 Williams Memorandum suggests, increased diversions under NMWD's Proposed Change would increase the need for a dam in dry years to prevent saltwater intrusion because the increased diversions would "push the mixing zone further upstream." These above noted hydrological effects (reduced flow below Peter's Dam, and the compaction and upstream migration of the mixing zone) are serious omissions in NMWD's proposed CEQA disclosure that make both any proposed CEQA Exemption or Negative Declaration very unlikely.
In addition to CEQA omissions, each and every statement affirmatively provided by NMWD as a reason for its proposed CEQA Exemption is without basis in fact. In Item 1, Description of Changes, NMWD incorrectly states (emphasis ours) "The Change is requested to comply with SWRCB Order WR95-17, which...ordered [NMWD] to find an alternative, permanent source of water during the low-flow months of July through October of dry years." In contrast, WR 95-17 actually states: "In past years, North Marin has negotiated short-term agreements under which Marin Municipal Water District has provided water to meet North Marin's needs on a temporary basis...negotiation of a similar arrangement on a long-term basis would allow for meeting North Marin's water requirements while protecting in stream uses and prior rights." CWC Section 1735 defines "a long-term transfer shall be for any period in excess of one year." As NMWD's May 8, 1996 letter to SWRCB notes: "North Marin has in place an [3/11/93 to 6/30/14, or twenty-one-year-long Intertie] agreement with Marin Municipal Water District (MMWD) to release water to Lagunitas Creek for North Marin's benefit. "This agreement with MMWD meets the SWRCB requirement for North Marin to use an alternative source of water during the low flow months of July through October of dry years. "Until a more cost-effective solution can be identified, North Marin intends to rely on the established agreement with MMWD to satisfy the requirements of Order WR 95-17." Clearly, the need for NMWD's Proposed Change is not, as stated, to satisfy WR 95-17, but rather more to reduce cost.
The first "bullet" on the subsequent NMWD page states that the Proposed Change "does not involve any construction activity, building of structures, grading, excavation, or changes to land usage." In contradiction to this assertion, the 4/18/ and 5/3/00Williams Memorandums make clear that the transfer of senior rights will result in the mixing zone moving upstream in critically dry summers and increasing the possibility of saltwater intrusion that could only be prevented by constructing either increased storage, a new dam, or a new pipe to the Gallagher well. Of these three possible solutions, the dam is likely least expensive to NMWD (and most destructive to the fishery), however all three solutions would involve construction activity, building of structures, grading, excavation and possibly changes to land usage.
In bullet two, NMWD states as a reason for Exemption that their "wells are not a direct diversion from the stream, and hence their continued operation will not disturb the natural habitat of the stream." In bullet three, NMWD also states as a reason for Exemption that their well water "could be considered percolating ground water...SWRCB does not have jurisdiction." And in bullet five, NMWD states as a reason for Exemption that "ground water suction from the wells does not disturb the creekstream, consequently resulting in improved habitat." Contradicting each of these three NMWD reasons for Exemption, WR 95-17 (pg.29) notes: "the wells have direct hydraulic connections with Lagunitas Creek surface waters...the evidence in the record establishes that the water North Marin pumps from wells in the vicinity of Lagunitas Creek is subsurface stream flow in a known and definite channel...subject to the regulatory authority of the SWRCB."
In bullet four, NMWD states as a reason for Exemption that the since pre-Change operations have eliminated the need for the Giacomini dam, then "the changes sought in this petition actually aids the fish habitat." If, as NMWD claims, there will be no change in water use pre-Change compared to post-Change, then logically, the effect on fish habitat would not change either, and there would be no "aid" to fish habitat arising from the Change. However, as noted above, the Save Tomales Bay Committee believes the evidence shows that the Proposed Change does have hydrological effects by reducing stream flow, by compacting the mixing zone, and by increasing the possibility that a dam could be used to prevent saltwater intrusions...all of which are detrimental to fish habitat.
PART THREE:
We believe another meeting could resolve both categories of concerns expressed above in a mutually satisfactory manner. While what we have presented above indicates and supports our hypothesis that a negative Environmental Impact declaration is unwarranted and indefensible, at the same time we strongly believe that a mitigated negative declaration may be possible if the district comes to the table in good faith and seriously considers our suggestions and implements the mitigations which we believe are appropriate. We would like to meet with you to go over some suggestions we have considered, and would be interested in hearing any creative thoughts or solutions you and your staff have considered.
We look forward to meeting with you and thank you for your continued patience and understanding.
Sincerely,
Gordon Bennett, Sierra Club Conservation Co-Chair
Kenneth J. Fox, Tomales Bay Association President
cc Director Rodoni
Letter from Gordon Bennett on February 17, 2000
February 17, 2000
North Marin Water District
999 Rush Creek Place
Novato, CA 94948
Tel 897-4133 Fax 892-8043
Dear NMWD:
Our former West Marin Chair has previously sent you this same letter, which we are following up: As you know, the Sierra Club and its members fought long and hard for additional streamflows in Lagunitas Creek ( SWRCB WR95-17). We have looked forward to the Giacomini Ranch purchase as an opportunity to return its 2.67 cfs of appropriated rights to in-stream use. We now understand that only 2.0 cfs will be returned to Lagunitas Creek and that NMWD has requested to purchase the remaining .67 and transfer it to residential use. While this transfer appears to contradict the need to protect the fishery, the Sierra Club understands that there may be other complexities involved and desires additional information before formulating any opinion about either the propriety or about the extent of the proposed NMWD transfer of use.
We realize that the SWRCB has required NMWD to obtain a permanent solution for its needs at build-out level in critically dry years. NMWD should have prepared data documenting the extent of such need. That documentation should be public information and the Sierra Club would like the opportunity to review this documentation. We believe that average use, peak use, build-out potential, and conservation potential differ for each of the user groups: residential, commercial, agricultural, and out-of district. We assume that NMWD can reasonably document each of this information for each of these groups, with the sums being the requested diversions from Lagunitas Creek. With the survival of a species at stake, the Sierra Club wants to take special care in assuring that NMWD's calculations, assumptions, and projections are fair, reasonable and accurate.
We understand that the idea has been floated that NMWD may be willing to give up .67 of its junior rights in return for .67 of senior rights. But water in a wet year is not at all the same as water in a dry year. Given that NMWD's request for additional diversions in dry years appears to contradict the need to protect the fishery, the Sierra Club hopes that NMWD understands the need to clearly explain and document its position. Absent such documented care in determining the realistic needs of NMWD, the Sierra Club, along with other environmental groups, will vigorously defend the needs of the fishery. It is our hope that there can be a solution that satisfies the needs of both the fishery and NMWD customers. Please send the requested data to: Gordon Bennett, Sierra Club / NMWD Group, 216 Star Route, Sausalito, CA 94965, Tel: 389-1828 / Fax: 389-6238 / E: gbatmuirb@aol.com
Sincerely,
Gordon Bennett Conservation Co-Chair
Letter from Gordon Bennett on February 15, 2000
February 15, 2000
Mr. Ed Dito, Program Manager, Application and Petition Section
State Water Resources Control Board
PO Box 2000, Sacramento, CA
916-657-1954 / Fax 657-1485
Re: North Marin Water District (NMWD) application for purchase of .67
appropriative senior rights
Re: NMWD application for a change of use from agricultural on the Giacomini
Ranch to urban in NMWD.
Dear Mr. Dito
The Sierra Club Marin Group has been a vigorous advocate for additional streamflows in Lagunitas Creek (SWRCB Order WR95-17). We have looked forward to the National Park Service purchase of the Giacomini Ranch as an opportunity to return its 2.67 cfs of appropriated senior water rights to wetland restoration and in-stream use, which uses we strongly support. However, we understand that only 2.0 cfs will be used for these purposes and that NMWD has signed an agreement with the Giacomini Family to purchase the remaining .67 cfs. At some time in the near future, NMWD will request from SWRCB permission for a change of use from agricultural on the Giacomini Ranch to residential in NMWD's jurisdiction. Although we realize that the purchase of an appropriative water right is a private matter, the Sierra Club Marin Group wishes the SWRCB to know that in the absence of conditions at time of purchase which provide for the protection of the fisheries and wetlands in dry years, we intend to file at the time of NMWD's application for change of use a Complaint under Section 820, Title 23, California Code of Regulations. The following are some concerns and mitigations that could be conditions of sale to reduce harm to the fishery and wetland consistent with SWRCB Order WR 95-17:
RIGHT TO DAM: The Sierra Club Marin Group strongly requests the SWRCB to require that NMWD, as condition of receiving approval for any change of use, give up its rights to build an emergency dam on Lagunitas Creek. Such a dam will do irreparable harm to the fisheries that we have fought so hard to protect. With both SWRCB WR95-17 and its new .67 cfs of senior rights, NMWD has the authority to require Marin Municipal Water District (MMWD) to release sufficient water to minimize salt-water intrusions at the NMWD wellsite. NMWD has shown that appropriately scheduled pumping can eliminate intrusions. Since there is no need for a NMWD emergency dam, the Sierra Club Marin Group requests that this right to dam Lagunitas Creek be eliminated as a condition of approval of any change of use.
BUILD OUT PROJECTIONS: We realize that the SWRCB has required NMWD to obtain a permanent solution for build-out in critically dry years. We believe average use, peak use, build-out potential, and conservation potential differ for residential, commercial, agricultural, and non-district users. NMWD should have documentation for each projection, which the Sierra Club Marin Group has asked to review. We also ask that NMWD survey its customers to determine what riparian diversions may be occurring along Lagunitas Creek. We want to take special care in assuring that NMWD can manage the Creek responsibly and that peak use buildout projections are fair and accurate and will pose no threat to MMWD's efforts to preserve and restore the fishery. Special care is critical for the long-term protection of four federally listed species: coho salmon, steelhead trout, freshwater shrimp and tidewater goby)
EXCESS RIGHTS: NMWD currently has 1.66 of water junior water rights plus a possible .05-.10 cfs of pre-1914 rights. We believe that NMWD's purchase of this additional .67 cfs of senior appropriative rights will result in total rights considerably in excess of a fair and reasonable buildout projection. Our concern is that this excess water rights will encourage profligate water use during wet years, which then will become difficult to cut back to get to the .67 cfs figure available for dry years. Profligate use during wet years should not be an excuse for "emergency" pumping over .67 cfs in dry years. The Sierra Club - Marin Group strongly suggests that total NMWD rights be limited to a fair and accurate peak use build out figure, but no more. Since we are concerned that NPS be assured of adequate water for its wetland restoration at the Giacomini Ranch, we request that all excess NMWD rights on Lagunitas Creek be transferred to NPS. As further assurance to NPS in their restoration, NMWD should be required to execute a memorandum of understanding transferring to NPS all rights under the current interim agreement between NMWD and MMWD to transfer up to 250 acre feet from MMWD to NMWD. Such agreement would become superfluous for NMWD if the proposed change of use were granted, but critical in a dry year for estuarine habitat struggling to become established.
The Sierra Club Marin Group hopes that there can be a solution that satisfies the needs of NMWD and mitigates the harm to both the fishery and the wetlands restoration. Until appropriate mitigations are agreed upon and until additional information is provided, the Sierra Club Marin Group will request that the SWRCB deny NMWD any proposed change of use. With the survival of four federally listed species at stake, our Group intends to vigorously defend the needs of the fishery and the wetland restoration. We ask that the SWRCB put the Sierra Club Marin Group on the list of concerned parties interested in any proposed change of use. We also ask that the SWRCB notify us in a timely manner sufficient for us to file a Complaint should the conditions of sale and transfer of the .67 cfs be deemed by us as insufficient to protect the fishery or wetland restoration. We can be reached at:
Gordon Bennett
Sierra Club / NMWD Working Group
Sincerely,
Gordon Bennett, Conservation Co-Chair