Solvang City Council
January 10, 2022

I. The City Must Prepare a Subsequent EIR Regarding its Proposal to Change and Extend Time for Water Rights Permit 15878.

The City proposes to prepare an Addendum to the 2014 EIR in lieu of a Subsequent EIR. (City Statement at 2) An Addendum, however, is only appropriate where none of the conditions set forth in CEQA Guidelines Section 15162 apply. CEQA Guidelines §151634. In this case, two conditions set forth in Section 15162 apply: (1) substantial changes occur with respect to the circumstances under which the project is undertaken; and (2) new information of substantial importance shows that the project will have one or more significant effects not discussed in the previous EIR. CEQA Guidelines §§ 15162(a)(2), (3)(A). Therefore, a subsequent EIR is required.

A. A Subsequent EIR is Required Because the Circumstances under which the Project will be Carried Out have Changed Substantially, Involving New Significant Effects.

Substantial changes to the circumstances under which the project will be implemented necessitate major revisions to the 2014 EIR. CEQA §15162(a)(2). For example, in 2019 the SWRCB adopted Water Rights Order 2019-1148 (“Order”), which requires substantial changes to the flows in the Santa Ynez River and the quantity and quality of steelhead habitat in the same location where the project would impact steelhead and their habitat.1 These changed
circumstances substantially alter the flow regime and steelhead habitat, leading to new significant impacts on steelhead migration, spawning, and rearing, which necessitate major revisions to the EIR to properly describe, evaluate, classify, and avoid or mitigate these new significant impacts.

Specifically, the Order requires River flows at the Alisal Bridge near the project site to be increased from 1.5 cubic feet per second (“cfs”) to five to forty-eight cfs (increased by 333% to 3,200%) in order to create and increase steelhead habitat and vastly improve habitat quality during above average and wet years. As a result of these increases in flow, and as intended by the Order, steelhead use of the River for migration, spawning, and rearing will substantially increase where the wells will be installed and where the wells will impact flows in the River.2 This dramatic flow increase represents a substantial change in the circumstances under which the project will operate which will intensify the project’s impacts on steelhead, and will require the EIR to be substantially revised in the form of a subsequent EIR to sufficiently analyze the significant new impacts on steelhead migration, spawning, and rearing habitat and steelhead survival.
1 The Status Conference Statement claims the project would be “consistent with” the 2019 Order. (Statement at 3) This assertion is incorrect because the Order increases and enhances habitat downstream from Alisal Bridge, while the 2014 EIR and Stetson Tech Memo #6 both claim that steelhead habitat downstream from Alisal Bridge is not significant or is nonexistent.
2 City of Solvang, Water System Master Plan Update Environmental Impact Report at 5.3-20 stating “Impacts associated with the proposed wells to be installed, as part of the Master Plan Update, would be confined to the “Alisal” reach if wells are drilled upstream of the Alisal Bridge, or to the “Avenue of the Flags” reach if the wells are placed downstream of the Alisal Bridge.” (February 28, 2014) (“Solvang 2014”).

March 25, 2021
CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

B. A Subsequent EIR must be Prepared Because New Information Shows that the Project will have Significant Effects not Discussed in the Previous EIR.

New substantial information shows that the project will result in significant impacts to steelhead and steelhead migration, spawning, and rearing habitat, which were not identified in the 2014 EIR, thus requiring a subsequent EIR. CEQA Guidelines Section 15162(a)(3) requires preparation of a subsequent EIR when “new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete…shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR....” New information of substantial importance, which could not have been known at the time of certification of the 2014 EIR, includes the 2019 SWRCB Order, the National Marine Fisheries Service’s (“NMFS”) 2016 Draft Biological Opinion, NMFS’ 2016 5-Year Status Review for Southern California steelhead, and a 2019 Report on the effects of the Thomas Fire and resulting debris flows on steelhead.

1. The SWRCB’s 2019 Water Rights Order is Significant New Information Demonstrating that Impacts to Steelhead will be Significant.

The 2019 SWRCB Order, adopted five years after certification of the 2014 EIR, requires the Cachuma Project to meet much higher target flows at Alisal Bridge to expand and enhance steelhead habitats during above average and wet years (an increase from just 1.5 cfs under NMFS’ 2000 Biological Opinion for the Cachuma Project (“BiOp”) to five to forty-eight cfs under the Order).3 Therefore, the Order will significantly extend, expand, and enhance viable steelhead migration, spawning, and rearing habitat downstream from Alisal Bridge, as intended by the SWRCB to comply with Fish and Game Code Section 5937 and the Public Trust Doctrine. As a result, during wet and above average years there will be substantially more habitat, higher quality habitat, and more steelhead downstream from Alisal Bridge where the project’s impacts will occur.4 The City’s claim that the project will result in “fewer environmental effects” is incorrect. (City Statement at 3) The Order constitutes new information of substantial importance, showing new significant impacts on steelhead migration, spawning, and rearing habitat not previously identified in the 2014 EIR, triggering preparation of a subsequent EIR.

The 2014 EIR found that impacts to steelhead would be less than significant because the “Avenue of the Flags” Reach “has been identified as having poor habitat conditions for O. mykiss during much of the summer and fall.”5
Furthermore, the EIR found that “Rearing habitat
3 National Marine Fisheries Service, Biological Opinion for US Bureau of Reclamation Operation and Maintenance of the Cachuma Project on the Santa Ynez River in Santa Barbara County, California at 7 (September 11, 2000) (“NMFS (2000)”); See also State Water Resources Control Board, Order WR 2019-0148 Table 2 at 135 (2019) (“SWRCB (2019)”).
4 Solvang (2014) at 5.3-20.
5 Id. at 5.3-23.

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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

is unavailable downstream of the Alisal Reach in the mainstem… .”6 The EIR states, “The BiOp
does not identify the reach downstream of Alisal Bridge to be suitable for habitat maintenance.”7

The EIR added that the River downstream from Alisal Bridge was not a “designated critical management reach.”8 The EIR states that, “The BiOp does not identify the reach downstream of Alisal Bridge to be suitable for habitat maintenance.”9 The 2000 BiOp found that although there
is rearing and spawning habitat downstream from Alisal, it is in poor condition due to the lack of sufficient water: “conditions in this area are often poor for rearing or spawning, as for example cover and pool habitats are sparse.”10 Given the above, and considering information available in 2014, including the BiOp’s 1.5 cfs target flow at Alisal Bridge, the 2014 EIR found impacts to steelhead downstream from Alisal Bridge would not be significant.11

However, significant new information in the 2019 Order, which could not have been known in 2014, demonstrates that flows would be increased from 1.5 cfs to five to forty-eight cfs at Alisal Bridge, which – as intended by the Order – would substantially improve habitat conditions downstream from Alisal Bridge during wet and above average years.12 In light of this important new information mandating greatly increased River flows designed to increase steelhead migration, spawning, and rearing habitat and the number of steelhead downstream from Alisal Bridge where project impacts would occur,13 the project will result in significant new impacts to steelhead migration, spawning, and rearing and the steelhead population in wet and above average years. Therefore, the 2019 Order constitutes new information of substantial importance demonstrating that the project will result in significant new impacts to steelhead downstream from Alisal Bridge.

The City’s Status Conference Statement indicates that the increased River flows under the 2019 Order mean that there will be “fewer” impacts. (Statement at 3) However, Solvang cannot argue it both ways. The City cannot argue in the 2014 EIR that the 2000 BiOp required flows of only 1.5 cfs at Alisal Bridge, that the steelhead habitat downstream from Alisal Bridge is not significant, and therefore that there would not be a significant impact to steelhead downstream from Alisal Bridge, then turn around in 2021 and argue that because of increased flows and habitat at and downstream from Alisal Bridge required by the 2019 Order, the project would cause “fewer environmental effects.” (Id.) The Order increases migration, spawning, and rearing habitat to enhance the population downstream from the bridge where the project’s impacts would occur.14
6 Id. at 5.3-34. 7 Id. at 5.3-43.
8 Id.
9 Id. at 5.3-43.
10 NMFS (2000) at 28.
11 Solvang (2014) at 5.3-43 – 46.
12 SWRCB (2019) at 135.
13 Solvang (2014) at 5.3-20. Although the 2014 EIR acknowledged the importance of the Avenue of the Flags Reach for upstream anadromous adult and downstream smolt migration, the EIR relied on the fact that the Reach is not important habitat for rearing and spawning to support a finding of less than significant impacts. 14 Id; See also SWRCB (2019) at 135.

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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

This new information shows that the project will cause new significant impacts to steelhead, and therefore triggers preparation of a subsequent EIR.

2. The NMFS 2016 Draft BiOp and Supporting Scientific Studies Constitute Substantial New Information Demonstrating that the Project will Cause Significant Impacts Not Disclosed in the 2014 EIR.

NMFS’ 2016 Draft BiOp constitutes additional new information which demonstrates that the reduction of flows downstream from the Alisal Bridge will harm steelhead migration, spawning, and rearing and cause significant new impacts that were not reported in the 2014 EIR.

The City’s proposed project can pump one cfs from March through May, two cfs in February and June, and 2.84 cfs July through January.15 The 2016 Draft BiOp provides new information demonstrating that reduced flows during freshwater migration,16 spawning,17 and rearing18 would cause significant impacts to steelhead during these life stages. Halting pumping at Well 3 when flows at Alisal Bridge fall below 1.5 cfs as proposed (Status Conference Statement at 3) would not avoid significant impacts because pumping between one and 2.84 cfs from two new River wells, as proposed, would reduce flows during freshwater migration, spawning, and rearing. For example, when flows at Alisal Bridge are three cfs during rearing in June, pumping of two cfs could reduce flows by 66% downstream from the Alisal Bridge, substantially reducing the quantity and quality of rearing habitat.19 Discharges of sixty-five cfs in January could be reduced by 2.84 cfs to less than sixty-three cfs, which is the very minimum discharge that “is needed to provide a freshwater migration corridor.”20 The 2014 EIR did not find this impact significant based on information available at the time,21 however, significant new information in the 2016 Draft BiOp, and in the Draft BiOp’s underlying scientific reports (e.g., O’Dowd et al (2014)), demonstrate that flow reductions cause significant impacts to migration in the Santa Ynez River downstream from Bradbury Dam.

3. NMFS’ 2016 5-Year Steelhead Status Review Constitutes Significant New Information Demonstrating that the Project will Cause a Significant Impact on Southern California Steelhead in the Santa Ynez River.

NMFS’ 2016 South-Central/Southern California Coast Steelhead Recovery Planning Domain 5-Year Review: Summary and Evaluation of Southern California Coast Steelhead 15 Letter from Chip Wullbrandt, City of Solvang, to Alan B. Lilly, Presiding Hearing Officer, SWB at 2 – 3 (October 19, 2020).
16 NMFS Draft Biological Opinion at 76 – 84 (“NMFS (2016)”); see also SWRCB (2019) at 52 stating that “flow modifications” harm steelhead; See also O’Dowd, A., B. Trush, D. Colvin, K. Lavery, D. Iichien, and O. AbiChahine (June 30, 2014) (“O’Dowd et al. 2014)”. 17 NMFS (2016) at 85; See also O’Dowd et al. (June 30, 2014). 18 NMFS (2016) at 88 – 95, stating reduced flows harm steelhead freshwater rearing sites; see also O’Dowd et al. (2014).
19 Id. 20 NMFS (2016) at 76.
21 Solvang (2014) at 5.3-43 – 47.

March 25, 2021
CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

Distinct Population Segment (“5-Year Status Review”) is new information of substantial importance which demonstrates that the project’s impacts on Southern California steelhead are significant. For example, the 5-Year Status Review identifies the significant effects of the California drought on Southern California steelhead. The full extent of the drought’s impact could not have been known know at the time of the 2014 FEIR:

California has experienced well below average precipitation in each of the past 4 water years (2012-2015), record high surface air temperatures the past 2 water years (2014 and 2015), and record low snowpack in 2015. Some paleoclimate reconstructions suggest that the current 4-year drought is the most extreme in the past 500 or perhaps more than 1000 years. Anomalously high surface temperatures have made this a “hot drought”, in which high surface temperatures substantially amplified annual water deficits during the period of below average precipitation. The combination of low precipitation and high temperatures has promoted elevated stream temperatures. The below normal precipitation and reduced runoff has adversely affected aquatic habitat for steelhead in a variety of other ways, resulting in: 1) depleted groundwater basins which provide base flows that support critical over-summering habitat for rearing O. mykiss; 2) reduced hydrological connectivity between seasonally wet and dry stream sections in interrupted streams; 3) restricted instream movement of rearing O. mykiss; 4) delayed or reduced breaching time of sandbars at the mouth of coastal estuaries, affecting water quality, and limiting both the upstream migration of adult O. mykiss and the downstream emigration of juveniles and kelts. Riparian habitat has also been adversely affected by the reduction in groundwater levels and the reduction of surface flows, affecting water temperatures and food availability.22 By reducing upstream and downstream migration, adversely affecting riparian vegetation, reducing groundwater levels and surface flow, increasing water temperatures, and decreasing food availability, the drought’s continuation beyond February 2014 has placed tremendous new pressures on the species which could not have been fully known when the previous EIR was certified. The 5-Year Status Review is therefore significant new information which intensifies the project’s impacts on steelhead migration and survival, resulting in a new significant impact.

4. The 2019 Assessment of Steelhead Habitat and Migration Barriers within Watersheds Impacted by the Thomas, Whitter, and Topanga Wildfires Constitutes Significant New Information Demonstrating that the Project will Cause a Significant Impact on Southern California Steelhead in the Santa Ynez River.

The 2017 Thomas Fire and resulting 2018 debris flows eliminated steelhead from Carpinteria Creek and San Ysidro Creek, reducing the species’ population size and number of 22 Id. at 52.

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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

populations.23 “Zero O. mykiss were observed in these streams during the habitat and barrier assessments conducted for this report. It is unlikely San Ysidro Creek and Carpinteria Creek continue to support a resident O. mykiss population at this time considering the numerous negative impacts on stream habitat conditions from persistent drought, wildfire, and subsequent sediment influxes.”24 Since steelhead stray from one watershed to another,25 the loss of at least two populations to the debris flows intensifies the level of endangerment to the species as a whole. The loss of local populations of steelhead due to the Thomas Fire and resulting debris flows could not have been known at the time of EIR certification in 2014. Therefore, the 2019 Assessment of Steelhead Habitat and Migration Barriers within Watersheds Impacted by the Thomas, Whitter, and Topanga Wildfires is new, substantially important information which elevates the project’s impacts on the species to significant.

In sum, the substantially changed circumstances under which the project would be carried out, including (1) much greater flows in the Santa Ynez River reach of diversion downstream from Alisal Bridge where project impacts will occur, and (2) the resulting greatly enhanced steelhead habitat in the same location, will generate new significant impacts to steelhead migration, spawning, and rearing that were not identified in the 2014 EIR. As a result, major revisions to the 2014 EIR are required. Moreover, new information of substantial importance which was not available at the time of EIR certification in 2014, including the 2019 SWRCB Water Rights Order, the 2016 Draft BiOp and O’Dowd et al, the 5-Year Status Review, and the 2019 Wildfire Assessment demonstrates that impacts to steelhead migration, spawning, and rearing, which were considered less than significant in the EIR, would be significant, requiring preparation of a subsequent EIR.

II. The Status Conference Statement Sets Forth a Flawed Approach to Analyzing the Project’s Hydrological and Flow-Related Public Trust Impacts.

The City’s proposed supplemental hydrological analysis is flawed in several respects.

First, the City fails to consider the cumulative effects of its current extractions combined with the proposed new wells. Second, the City makes assumptions regarding the effects of the project before conducting objective, science-bases analyses. Third, the City relies on outdated and irrelevant Technical Memoranda. The City’s proposal must be modified to ensure an analysis that is based on current scientific information.
23 Pacific States Marine Fisheries Commission and California Department of Fisheries and Wildlife, Assessment of Steelhead Habitat and Migration Barriers within Watersheds Impacted by the Thomas, Whitter, and Topanga Wildfires (September 9, 2019). 24 Id. at 107.
25 NMFS (2016b) at 37.

March 25, 2021
CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

A. The City Must Analyze the Effects of its Current Extractions from the Santa Ynez River Because Ongoing Extractions May Significantly Harm Public Trust Resources.

The City already extracts water from the Santa Ynez River via Wells 3 and 7a, reducing flows and jeopardizing public trust resources including steelhead. The proposed project would exacerbate the effects of the City’s existing Santa Ynez River Wells. The City must evaluate the ongoing effects of its existing wells as well as the cumulative effects of its existing plus proposed wells on public trust resources, including steelhead.

According to the 2011 Water System Master Plan Update, the City was extracting 174 AFY from the River in 2010.26 This level of extraction may already harm steelhead by reducing migration, spawning, and rearing flows, especially during dry years.27 Water storage, withdrawal, conveyance, and diversions for agriculture, flood control, domestic, and hydropower purposes have greatly reduced or eliminated historically accessible habitat. Modification of natural flow regimes by dams and other water control structures have resulted in increased water temperatures, changes in fish community structures, depleted flow necessary for migration, spawning, rearing, and flushing of sediments from spawning gravels… Dams, water diversions, and groundwater extraction are common across the SCS Recovery Planning Area, especially on the larger rivers, such as the Santa Maria, Santa Ynez… Loss of surface flows… along the mainstem of the river affect important tributaries providing spawning and rearing habitat… Implement operating criteria to ensure the pattern and magnitude of groundwater extractions and water releases from Bradbury, Gibraltar, and Juncal dams provide the essential habitat functions to support the life history and habitat requirements of adult and juvenile steelhead.28
The City must study the cumulative effects of its existing pumping from Wells 3 and 7A in combination with the proposed new pumping to determine potential effects on steelhead and other public trust resources.

B. The Status Conference Statement Improperly Assumes that Impacts will be Lessened by the Project Before the Analysis has been Initiated.

The Status Conference Statement references six Stetson Technical Memos and states that these will be reviewed by the City’s hydrological consultant GSI. (Statement at 3) However, instead of awaiting the results of GSI’s analysis, the City has already concluded that GSI will “explain how the City’s Proposed Revised Project will have fewer environmental effects than what was identified by the original Stetson analysis due to fewer wells and reduced maximum 26 City of Solvang, Water System Master Plan Update at 12 (2012). 27 NMFS, Southern California Steelhead Recovery Plan (January 2012) (“NMFS (2012)”). 28 Id. at 3-2, 4-4, and 7-9.

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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

annual extraction from the Santa Ynez River underflow.”29 It appears that the City has hired GSI to craft an analysis which supports the City’s pre-determined desired outcome of fewer environmental effects. Instead, the City must undertake robust new hydrological analyses, with NMFS and California Department of Fish and Wildlife (“CDFW”) review and approval of study plans and draft reports, prior to stating the outcome.

C. The Status Conference Statement and Stetson Technical Memos Fail to Consider the Changed Environmental Baseline Resulting from the SWRCB’s 2019 Water Rights Order.

While the Status Conference Statement prematurely assumes “fewer environmental effects” based on fewer wells and reduced extraction, reduced extraction alone does not ensure impacts are lessened. The impact analysis must consider extraction in the context of the environmental baseline conditions, which in this case have changed drastically with the 2019 Order. The Order requires wet year flows at Alisal Bridge which are 333% to 3,200% greater than flows under the 2000 BiOp.30 Given the Order’s intended change in baseline flow conditions to protect steelhead as a public trust resource, the River below Alisal Bridge is expected to become more important migration, spawning, and rearing habitat likely supporting more steelhead than current baseline conditions as assumed in the Status Conference Statement.31 As a result of the increased likelihood of steelhead presence and proliferation downstream from Alisal Bridge, the project, even with reduced extraction, will cause more significant impacts to steelhead.

D. The Technical Memos are Outdated and do not Consider Recent Studies and Information about the Effects of Extraction on Hydrological Conditions Required to Protect Steelhead in the River.

The City proposes to have its consultant GSI evaluate six Stetson Technical Memos and “identify the most relevant Technical Memos.” Technical Memos 1-5 were prepared in 2004 and 2005, and Technical Memo 6 was prepared in 2011. These Memos are outdated and are no longer relevant to the project. The Memos predate critical studies, survey reports, and information regarding steelhead in the Santa Ynez River, including (a) the 2016 Draft Biological Opinion,32 (b) the 2016 Draft BiOp’s underlying scientific studies such as the 2014 O’Dowd, et al report, (c) the 2019 Order,33 (d) the Bureau of Reclamation’s Annual Monitoring Reports,34 29 Id. 30 SWRCB (2019) at 135; See also NMFS (2000) at 7. 31 SWRCB (2019) at 72 – 81 and 127.
32 NMFS (2016).
33 SWRCB (2019).
34 US Bureau of Reclamation, 2008 Annual Monitoring Report and Trend Analysis For 2005-2008 For the Biological Opinion for The Operation and Maintenance of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (June 23, 2011); See also US Bureau of Reclamation, 2009 Annual Monitoring Report And Trend Analysis For The Biological Opinion For The Operation And Maintenance Of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (February 29, 2012); See also Us Bureau Of Reclamation, 2010 Annual Monitoring Report And Trend Analysis For The Biological Opinion For The Operation March 25, 2021
CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

(e) NOAA’s evaluation of potential over-summering habitat on the Santa Ynez River,35 (f) an evaluation of thermal potential for steelhead nursery habitat on the Santa Ynez River,36 (g) genetic evaluation of Santa Ynez River steelhead,37 (h) the most comprehensive report on the history of steelhead in the Santa Ynez River,38 (j) the Bureau’s and NMFS’ analyses and correspondence regarding the effects of WRO 89-18’s releases on steelhead in the River,39 and (k) the Southern California Steelhead Recovery Plan.40 As such, the six Technical Memos are outdated, do not address or account for critical information, and are no longer relevant.

And Maintenance Of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (January 28, 2013); See also US Bureau of Reclamation, 2011 Annual Monitoring Summary And Trend Analysis For The Biological Opinion For The Operation And Maintenance Of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (June 28, 2013); See also 2012 Annual Monitoring Summary and Trend Analysis For The Biological Opinion For The Operation And Maintenance Of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (March 9, 2016); See also US Bureau of Reclamation, WY2013 Annual Monitoring Summary And Trend Analysis For The Biological Opinion For The Operation And Maintenance Of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (June 1, 2017); See also US Bureau of Reclamation, WY2014 Annual Monitoring Summary For: The Biological Opinion For The Operation And Maintenance Of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (April 10, 2018); See also US Bureau of Reclamation, WY2015 Annual Monitoring Summary For: The Biological Opinion For The Operation And Maintenance Of The Cachuma Project On The Santa Ynez River In Santa Barbara County, California (October 19, 2018).
35 David A. Boughton, and Matthew Goslin, NOAA Technical Memorandum NMFS, Potential Steelhead OverSummering Habitat in The South-Central/Southern California Coast Recovery Domain: Maps Based On The Envelope Method Map 4 at 19 (July 2006).
36 David A. Boughton and Lee R. Harrison, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Southwest Fisheries Science Center, Fisheries Ecology Division, Andrew S. Pike, Institute of Marine Sciences, University of California–Santa Cruz, and Juan L. Arriaza and Marc Mangel, Center for Stock Assessment Research, Department of Applied Mathematics and Statistics, University of California–Santa Cruz, Thermal Potential for Steelhead Life History Expression in a Southern California Alluvial River (American Fisheries Society 2015).
37 John Carlos Garza and Anthony J. Clemento, NOAA Southwest Fisheries Science Center and University of California Santa Cruz, Genetic Evaluation of Ancestry, Origins and Gene Flow of Steelhead and Rainbow Trout (Oncorhynchus mykiss) in the Santa Ynez River, California (August 2014). 38 Peter S. Alagona, Scott D. Cooper, Mark Capelli, Matthew Stoecker, and Peggy H. Beedle, A History of Steelhead and Rainbow Trout (Oncorhynchus mykiss) in the Santa Ynez River Watershed, Santa Barbara County, California (December 2012).
39 NMFS, Biological Opinion, U.S. Bureau of Reclamation operation and maintenance of the Cachuma Project on the Santa Ynez River in Santa Barbara County, California at 71 and 74 (September 11, 2000); See also NMFS assessment of the Bureau’s reporting for compliance with the 2000 BiOp RPMs; See also Letter from Rodney R.

McGinnis, Regional Administrator, NMFS to Michael Kinsey, Reclamation at 1 (March 19, 2009); See also Letter from Rodney R. McGinnis, Regional Administrator, NMFS to Michael Jackson, Reclamation (November 9, 2009); See also letter from Rodney R. McGinnis, Regional Administrator, NMFS to Michael Jackson, Reclamation (July 21, 2010).
40 NMFS (2012).

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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

E. Five of the Six Technical Memos address a Project with Wells Located Upstream from Alisal Bridge and are Irrelevant to the Current Proposed Project.

Memos 1-5 analyze a project located upstream from Alisal Bridge. The project includes only wells located downstream from Alisal Bridge. Therefore, these Technical Memos are irrelevant to the project.

F. The 2011 Technical Memo 6 is Predicated on the 2000 BiOp Flows, does not Consider the Vastly Greater Wet Year Flows Required Under the 2019 Order, and is Irrelevant to the Conditions Under the 2019 Order.

The most recent Memo is ten years old and is outdated and irrelevant to the project in light of the 2019 Order’s wet year flow requirements. It predates all the critical information and studies listed in the above section. Most significantly, Technical Memo 6 is predicated on the 2000 BiOp and its target flows, including the 1.5 cfs flow at Alisal Bridge during years when Cachuma spills in excess of 20,000 AF and the years following such spills.41 NMFS determined in the 2016 Draft BiOp that the 2000 BiOp flows were insufficient to protect steelhead.

Technical Memo 6 predates this determination and should not be relied upon. Furthermore, this Memo does not account for the increased flows required under the 2019 Order, including flows that are between three-and-a-third times and thirty-two times greater than the 2000 BiOp’s Alisal Bridge flows during wet and above average years. Technical Memo 6 is thus irrelevant to the project given the vastly changed circumstances under which the project would be operated, if approved.

Technical Memo 6 includes numerous findings which illustrate how its baseline assumption of the 2000 BiOp flows renders it useless for the purpose of evaluating the project’s hydrologic impacts. For example, the project evaluated in Technical Memo 6 (“Alternative 5”) results in reservoir pass through, water rights releases, and fish releases which are less than 1% different from flows under Alternatives 1 – 4, which are also predicated on the 2000 BiOp.42 The status quo conditions under the 2000 BiOp have been known to be deficient for protecting steelhead since 2009, when the Bureau and NMFS first agreed to reinitiate consultation.43 Additionally, Technical Memo 6 states that “primary management reach for fish flows” is above Highway 15444 where the 2000 BiOp requires flows of 2.5 cfs to ten cfs.45 However, the 2016 Draft BiOp manages the River for steelhead much further downstream, including flows of thirty-eight cfs at the H Street Bridge in Lompoc.46 The 2016 Draft BiOp identifies the need to manage steelhead with flows of 150 cfs for migration and spawning extending far downstream 41 NMFS (2000) at 7.
42 Stetson, Technical Memo 6 at 12 – 13 (2011) (“Stetson (2011)”). 43 See e.g., Darren Brumback, NMFS, Memo to File (October 8, 2009); see also Letter from Rodney R. McInnis, Regional Administrator, NMFS to Michael Jackson, US Bureau of Reclamation (November 9, 2009). 44 Stetson (2011) at 12. 45 NMFS (2000) at 7.
46 NMFS (2016) at 141-144.

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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

from Highway 154.47 The Draft 2016 BiOp also identifies a need for even larger channelforming flows.48 The 2019 Order requires flows of at least forty-eight cfs at Alisal Bridge during wet years. Recent studies, analyses, and orders demonstrate that relying on only the reach above Highway 154 as the primary management reach is inadequate. The Technical Memo is therefore outdated and flawed.

G. Technical Memo 6 Incorrectly Assumes No Increase in Evapotranspiration by Phreatophytes.

The Memo includes a substantially flawed assumption which highlights the severe problem of omitting the 2019 Order, and undermines the Memo’s modeling results and predicted hydrological effects of Alternative 5. By assuming no increase in evapotranspiration by phreatophytes, such as riparian vegetation, the Memo underestimates the releases required to achieve target flows under the Order. Increased flows under the Order, including wet year flows up to thirty-two times greater than the 2000 BiOp’s Alisal Bridge target flows, will lead to extensive growth of riparian plants along the River. During the growing season, riparian plants draw substantial quantities of water from alluvium along riverbeds and breathe it into the atmosphere through the process of evapotranspiration.49 “Riparian evapotranspiration (ET) is a major component of the surface and subsurface water balance for many semiarid watersheds.”50 The 2011 Technical Memo, however, assumes no increase in phreatophytes or evapotranspiration.51
Technical Memo 6 was prepared in 2011, eleven years after the 2000 BiOp was adopted.

Google Earth images show the River from Bradbury Dam to Highway 154 largely devoid of vegetation prior to the 2000 BiOp. (See Figure 1) Following implementation of flows under the BiOp, which required larger flows of between 2.5 cfs and ten cfs at Highway 154,52 riparian vegetation expanded significantly between the Dam and Highway 154. (See Figures 2, 3, and 4 depicting incremental growth of riparian vegetation following implementation of the 2000 BiOp.) Similarly, the Order will increase flows to forty-eight cfs during wet and above average years at Alisal Bridge, causing riparian vegetation to expand between Highway 154 and downstream from Alisal Bridge. The expanded riparian vegetation will increase evapotranspiration by riparian plants, necessitating greater releases from Cachuma to meet target flows. As noted above, Technical Memo 6 does not take into account the increased flows and potential evapotranspiration and is thus irrelevant to the analyses required in this matter.

47 Id.
48 Id. at 145 – 147.
49 R.L. Scott, W.L. Cable, T.E. Huxman, P.L. Nagler, M. Hernandez, and D.C. Goodrich, Multiyear riparian evapotranspiration and groundwater use for a semiarid watershed (Journal of Arid Environments Volume 72, Issue 7, Pages 1232 – 1246) https://www.sciencedirect.com/science/journal/01401963 (July 2008). 50 Id. 51 Stetson (2011) at 25.
52 NMFS (2000) at 7.

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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

Figures 1 (above) & 2 (below). Santa Ynez River Highway 154 Bridge to Bradbury Dam. Note increase in riparian vegetation (dark colors in Figure 2) in the light-colored, arid riverbed below the Dam after implementation of releases pursuant to the 2000 BiOp. (Google Earth, May 1994 & May 2002)
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CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

Figures 3 (above) & 4 (below). Santa Ynez River Highway 154 Bridge to Bradbury Dam. Note increase in riparian vegetation (dark greens) in the mesic riverbed below the Dam five years to thirteen years following implementation of releases pursuant to the 2000 BiOp. (Google Earth, Dec. 2005 & April 2013)
March 25, 2021
CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

In sum, Technical Memo 6 is fatally flawed and cannot serve as even a starting point for analyzing the hydrological or flow-related public trust impacts of the project. The Memo’s analysis is outdated and ignores the substantially changed circumstances resulting from adoption of the 2019 Order. The Memo predates and does not consider key monitoring reports and a substantial body of scientific literature on steelhead habitat in the Santa Ynez River. The Order is intended to substantially enhance conditions for steelhead, including quantity and quality of migration, spawning, and rearing habitat, increase the area and volume of aquatic habitat, including deeper pools, thereby decreasing water temperatures, increase riparian vegetation thereby shading and further cooling the River water, increase dissolved oxygen levels, increase food sources for steelhead, and ultimately increase the number of steelhead downstream from Alisal Bridge.53 However, this is exactly where the project’s impacts would occur.54 By ignoring significant new information and changed circumstances, including an entirely different environmental baseline condition, the Status Conference Statement incorrectly presumes that a lower level of new extraction will cause fewer environmental impacts. It is inappropriate for the Status Conference Statement to set forth the City’s desired outcome and presuppose that the City’s analysis will support that outcome. The City must instead conduct entirely new hydrological analyses which account for the tremendous amount of new scientific and policy information brought to bear and the changed conditions since 2011. The analysis must first evaluate the effects of the City’s existing River wells in light of current information and the 2019 Order to ensure existing extractions can protect public trust resource. Then the analysis must assess the impacts of the City’s project in combination with existing water extraction.

III. Conclusion
The City’s response to the January 15, 2021 Notice is severely deficient. The Status Conference Statement fails to account for the SWRCB 2019 Order, NMFS’ 2016 Draft Biological Opinion, or substantial scientific evidence and studies that are relevant to the assessment of the City’s proposal to drill new wells in the Santa Ynez River watershed. The City must address substantial changes that have occurred since 2014, as well as new information that shows that the project will have significant environmental effects that were not discussed in the previous EIR. These changed circumstances and new information raise genuine concerns regarding the project’s impacts to public trust resources in the River, including endangered Southern California steelhead.

We therefore request that you direct the City to: (1) prepare a subsequent EIR to fully and adequately analyze the potential impacts of the proposed project; and (2) conduct hydrological, environmental, and other analyses in line with the comments set forth in this letter. 53 SWRCB (2019) at 72 – 81.
54 Solvang (2014) at 5.3-20.

March 25, 2021
CalTrout Response to City of Solvang March 12, 2021 Status Conference Statement

Thank you for your consideration of this request.

Sincerely,
Linda Krop
Chief Counsel
Brian Trautwein
Environmental Analyst/Watershed Program Coordinator
cc: Russell Marlow, CalTrout
City of Solvang
California Department of Fish and Wildlife
National Marine Fisheries Service
1 PROOF OF SERVICE
2 I am employed in the County of Santa Barbara, California. I am over the 3 age of 18 years and not a party to the foregoing action. My business address is 906 4 Garden Street, Santa Barbara, California, 93101.
5 On March 25, 2021, I served the:
6 City of Solvang Petitions: California Trout Status Conference Statement 7 submitted by the Environmental Defense Center on behalf of California Trout, on 8 all parties listed in the attached Service List, by:
9  providing a true and correct copy of the Conference Statement by including 10 a list of email addresses of the parties or their representatives in an electronic 11 mail carbon copy “cc” list along with the email submitting the Conference 12 Statement to the Administrative Hearings Office.
13 I declare under penalty of perjury under the laws of the United States that the 14 foregoing is true and correct.
15 Executed on March 25, 2021, at Santa Barbara, California. 16 17
18 19 Linda Krop
20 21
22 2324
25 26
27 28
PROOF OF SERVICE: City of Solvang Petitions: California Trout Status Conference Statement

SERVICE LIST
B. Tilden Kim
RWG Law
350 S. Grand Ave., 37th Floor
Los Angeles, CA 90071
[email protected]
Attorney for City of Solvang
Stephanie Osler Hastings
Jessica L. Diaz
Brownstein Hyatt Farber Schreck, LLP
1021 Anacapa Street, 2nd Floor
Santa Barbara, CA 93101
[email protected]
[email protected]
Attorneys for Alisal Guest Ranch
Gary M. Kvistad
Brownstein Hyatt Farber Schreck, LLP
1021 Anacapa Street, 2nd Floor
Santa Barbara, CA 93101
[email protected]
Attorney for Santa Ynez River Water
Conservation District, ID No. 1
Elisabeth L. Esposito
Brownstein Hyatt Farber Schreck, LLP
1415 L Street, Suite 800
Sacramento, CA 95814
[email protected]
Attorney for Santa Ynez River Water
Conservation District, ID No. 1
Laurie K. Beale
NOAA Office of General Counsel
GCNW, 7600 Sand Point Way NE
Seattle, WA 98115
[email protected]
Attorney-Advisor for NOAA Fisheries
Darren Brumback, Fisheries Biologist
NOAA Fisheries
501 West Ocean Blvd., Suite 4200
Long Beach, CA 90802
[email protected]
Maggie Hall,
Linda Krop
California Trout
Environmental Defense Center
906 Garden Street
Santa Barbara, CA 93101
[email protected]
[email protected]
Attorneys for California Trout
Steven M. Torigiani
Brett A. Stroud
Young Wooldridge, LLP
1800 30th St., 4th Floor
Bakersfield, CA 93314
[email protected]
[email protected]
Attorneys for Santa Ynez River Water
Conservation District
Paeter Garcia, General Manager
Santa Ynez River Water Conservation
District, ID No. 1
P.O. Box 157
Santa Ynez, CA 93460
[email protected]
Nancee Murray
Lena Germinario
Office of General Counsel
California Department of Fish and Wildlife
P.O. Box 944209
Sacramento, CA 94244-2090
[email protected]
[email protected]
Attorneys for California Department of
Fish and Wildlife
906 Garden St. Santa Barbara, CA 93101
PHONE (805) 963-1622 FAX (805) 962-3152
www.EnvironmentalDefenseCenter.org
June 17, 2021
Alan B. Lilly, Presiding Hearing Officer
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812-0100
Submitted via email to [email protected] Re: City of Solvang Petitions: California Trout Comments Regarding Technical Memoranda and Reports
Dear Mr. Lilly:

These comments on the City of Solvang’s Technical Memoranda and Reports are submitted on behalf of California Trout (“CalTrout”). Pursuant to the Amended Status Conference Order and Notice of Status Conference dated May 3, 2021 (“Notice”), the City submitted a Hydrology-Hydraulic Technical Memo by GSI Water Solutions, Inc.; a Terrestrial Biological Resources Technical Report by PAX Environmental, Inc.; and a Cultural Resources Technical Memorandum by PALEOWEST (collectively, “Technical Memoranda and Reports” or “studies”). CalTrout appreciates the opportunity to comment on the “the general adequacy of these documents and the appropriate schedule for the hearing in this matter” per the Notice.

In short, the studies are inadequate to assess impacts on endangered Southern California steelhead and other species. Specifically, the studies are not based on current conditions and requirements for flows in the Santa Ynez River (“River”) or new information regarding the status of and threats to public trust resources in the River. Accordingly, the studies fail to sufficiently address the issues raised by CalTrout in our March 25, 2021 comment letter, and new studies must be prepared in order for the City to support its Petition.

In addition, we would like to reiterate our position from our March 25, 2021 letter that the City is required to prepare a subsequent Environmental Impact Report (“EIR”) pursuant to the California Environmental Quality Act (“CEQA”) rather than an Addendum to the 2014 Master Plan Update (“2014 EIR”), given substantial changes in the circumstances under which the project will be carried out, and substantial new information regarding new significant impacts not discussed in the 2014 EIR. Any hearing in this matter should be scheduled after a subsequent EIR is released.

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

I. The City’s Hydrological Report Is Inadequate to Assess Impacts on Steelhead in the Santa Ynez River.

The City’s May 28, 2021 review of the Stetson Engineer’s six technical memoranda by GSI Water Solutions, Inc., Review of Santa Ynez River Mechanics and Technical Memoranda Associated with City of Solvang’s Revised River Wells Project (“Hydrological Report” or “GSI”) incorrectly states that habitat downstream of Alisal Bridge is unimportant; downplays the effects of drawdown of surface water; improperly alleges that releases to mitigate the Cachuma Project’s impacts pursuant to the State Water Resources Control Board (“SWRCB”) Water Rights Order 2019-0148 (“WRO” or “Order”) would mitigate the additional impacts of the City’s project on steelhead; fails to consider alternatives that would avoid the need for additional River water; and fails to consider the impacts of the drought and climate change, which exacerbate the project’s impacts.

A. The Report Incorrectly States that the River Downstream from Alisal Bridge is Unimportant for Steelhead.

The report incorrectly assumes that maintaining target flows at Alisal Bridge is sufficient and that reduced flows caused by the project downstream from the Bridge would not harm steelhead because flow targets are located upstream: “As described in the 2000 Biological Opinion and the 2000 Lower Santa Ynez River Fish Management Plan, flow targets for the maintenance of steelhead spawning and rearing habitat are not established in areas downstream of the Alisal Bridge… Additional downstream water rights releases and regulatory fishery releases from the Cachuma Project, all of which are substantially upstream of Site B, ensure flow targets are satisfied.” (GSI at 3)
However, as explained in CalTrout’s March 25, 2021 letter to the SWRCB, under WRO 2019-0148, target flows are intended to extend downstream. For example, the WRO required flows of between 5 and 48 cfs at the Alisal Bridge during above average and wet years. 1 Those
flows are intended to support steelhead migration, spawning, rearing, and over-summering in critical habitat downstream from Alisal.
2 Target flows are measured at the Alisal Bridge because the Bridge abutments create a stable location to consistently gauge flows. The report’s conclusion that moving the wells further downstream reduces or avoids impacts on steelhead because downstream habitat is unimportant is incorrect.

To reach this conclusion, the study relies on inaccurate, dated information. The study incorrectly finds, “As indicated in the Lower Santa Ynez River Fish Management Plan, the Alisal Bridge is the farthest downstream location from Lake Cachuma in which endangered steelhead are considered to have viable spawning habitat, whereas rearing habitat is located 1 SWRCB, WRO 2019-0148 Table 2 Flows at 135. 2 Id. at 72 stating, “flow requirements would provide sufficient flows to improve downstream rearing conditions into the Alisal Reach and likely below the Alisal Reach.” See also id. at 94 stating, “The effects of Table 2 Flows on steelhead in the river and verification of the amount of additional habitat provided, including habitat below the Alisal Reach.” See also id. at 139 stating, “The effects of Table 2 flows on steelhead in the river and quantification of the amount of additional habitat provided, including habitat below the Alisal Reach.” June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

further upstream above Highway 154.” (GSI at 8) The 2000 Fish Management Plan, however, contains outdated information.
3 Recent documents informed by annual monitoring identify migration, spawning, rearing, and over-summering downstream from the Alisal Bridge. For example, the November 28, 2016 draft Biological Opinion for the Cachuma Project (“2016 draft BiOp”) identifies flows of 63 cfs near Lompoc and 124 cfs near Solvang for upstream migration.4 The 2012 Annual Monitoring Summary and Trend Analysis identifies spawning, rearing, and over-summering in the Cadwell Reach over ten miles downstream from Alisal. 5 The
City’s report does not consider these more recent documents. Accordingly, the City’s claim that locating wells further downstream avoids steelhead habitat is incorrect. 6 B. The Hydrological Report Downplays the Effects of Drawdown of Surface Water Near Well Site B.

Stetson’s technical memo six demonstrates that modeled water extraction at Well Site B would draw down water levels by three feet within 6,000 feet upstream and downstream of the wells.
7 The report acknowledges the drawdown could be four to seven feet “during late summer months” but would be “near zero” “when the Santa Ynez River is flowing.” (GSI at 5) However, the City’s report provides the drawdown only for Year 1. According to Stetson, drawdown was more severe in Year 2 (a second consecutive dry year).
8 During late summer months in below
average, dry, and critically dry years, water is the limiting factor for steelhead and the River is unlikely to be flowing. Seven of the last nine years were below average, dry, or critically dry as defined in WRO 2019-0148, so the increased releases (“Table 2 Flows” pursuant to WRO 2019- 0148 Term 16) occur infrequently.9
Drawdown will substantially diminish pools downstream from Alisal which are generally only several feet deep.10 When pools drop to a shallow depth, summer heat, low dissolved 3 Santa Ynez River Technical Advisory Committee, Lower Santa Ynez River Fish Management Plan https://www.cachuma-board.org/files/787098885/Executive+Summary+for+the+Fish+Management+Plan.pdf (2000).
4 NMFS (2016) at 141 – 144. 5 US Bureau of Reclamation, 2012 Annual Monitoring Summary and Trend Analysis at ix and 26 (emphasis added) https://www.cachuma-board.org/files/fdf190ea4/2012+Annual+Monitoring+Summary.pdf (March 9, 2016) (“Bureau of Reclamation (2016)”)
6 The report misrepresents CalTrout’s long-held position stating the planned wells were moved downstream to Well Site B “at the request of CalTrout” without any citation. (GSI at 3) CalTrout never requested that the wells be moved downstream. The report also inaccurately states that the wells were moved “away from steelhead spawning habitat.” (GSI at 12). The reason that the project location was revised was to “minimize possible river well pumping impacts to other upstream wells operated by Alisal Ranch and ID No 1,” not to protect steelhead. (GSI at 12) 7 Stetson, technical memo six, Table 20 at 26 (2011). (Note that technical memo six analyzed a different alternative but the City has not revised the analysis.) 8 Stetson, technical memo six, at 25 and Tables 19 and 20 at 26 (2011). 9 Santa Barbara County Water Agency, Cachuma Reservoir – Historical Water Storage Levels 36 Years – 1985 – 2021
http://www.countyofsb.org/uploadedFiles/pwd/Content/Water/Hydrology/Cachuma%20Storage%201960%20to%20 Present.pdf (June 10, 2021). 10 Bureau of Reclamation (2016) at 11 stating, “The habitat was approximately 65 feet long and 20 feet wide at its widest point with a maximum depth of approximately 4 feet.” June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

oxygen levels, and predation threaten steelhead.
11 Pool depth is critical to maintaining suitable
conditions, thus drawdown poses a grave threat to endangered steelhead, impacting rearing and over-summering. The report downplays this concern. This is especially troubling because increased flows will draw steelhead to spawn, rear, and over-summer in the same location that the project will drawdown water levels during late summer and fall.

C. The Hydrological Report Improperly Relies on Releases in WRO 2019-0148 as Mitigation for the Project’s Impacts.

The report incorrectly suggests that the increased releases required to mitigate the Cachuma Project’s impacts would also mitigate the City’s additional project impacts (GSI at 13).

However, by moving the wells further downstream from the Alisal Bridge target flow measuring location, the project is likely to deplete flows in the Avenue of the Flags Reach without triggering increased Cachuma releases. Therefore, the drawdown caused by the City’s wells would not be mitigated by increased releases from Cachuma which are designed only to mitigate the Cachuma Project’s impacts.12
D. The Report Fails to Consider Alternatives Which Avoid Increased Extraction from the Santa Ynez River.

The introduction lists project objectives including “provide for a reliable and diversified water supply through the use of multiple sources” and “minimizing environmental impacts along the Santa Ynez River.” (GSI at 2) However, the analysis does not address other sources which could minimize impacts in the River. For example, the Solvang Stormwater Master Plan identifies stormwater infiltration to recharge groundwater basins.13 In April 2021, City staff stated, “Solvang is also participating in a countywide stormwater resources plan to promote stormwater infiltration rather than runoff, and an (sic) another upland well could be added to the system in coming years.”14 In 2014, Solvang completed a CEQA document to drill up to three new upland wells which would generate 500 – 600 acre-feet per year. 15 The City’s Water Supply
Master Plan Final EIR describes an agreement with ID#1 that provides for up to 1,500 AFY of State Water Project water when available.
16 These alternatives may minimize impacts to
steelhead, and should be considered.
11 Id. at 26 – 27. 12 SWRCB, WRO 2019-0148 Term 16 at 134-137. (September 6, 2019). 13 City of Solvang, Solvang Stormwater Master Plan at 40 (June 28, 2019). 14 Jennifer Best, Contributing Writer, Solvang declares stage one drought condition, calls for 15% voluntary use reduction, Lompoc Record https://lompocrecord.com/news/local/solvang-declares-stage-one-drought-conditioncalls-for-15-voluntary-use-reduction/article_a525280f-346f-5e80-ad05-1c818cbaaa6a.html (April 13, 2021). 15 City of Solvang, Solvang Upland Wells Project Initial Study/Mitigated Negative Declaration (June 2014). 16 City of Solvang, Water Systems Master Plan Update Final EIR at 2.0-6 (2014).

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

E. The Report Fails to Consider Drought and Climate Change, Which Exacerbate the Project’s Impacts.

The 2014 EIR and 2011 Stetson technical memoranda, which the Hydrological Report reviews, were drafted before or during the beginning of the current drought. Santa Barbara County is experiencing the driest ten-year period in its history.17 Given the drought and climate change, the baseline conditions have changed, and the analysis must reflect an accurate baseline.

F. The Report Fails to Address Specific Concerns Raised by CalTrout.

The City’s Hydrological Report fails to address issues raised by CalTrout in our March 25, 2021 comment letter. For example, the City’s new studies do not adequately address concerns about the impacts of the City’s current River water extraction on steelhead and other public trust resources, as requested by CalTrout.
18 The Hydrological Report provides information
regarding the cumulative level of existing pumping near Alisal Bridge, (GSI at 3) which heightens concerns about the current and cumulative effects of the City’s extraction of River water.

In addition, the City does not refer to or address the new information cited by CalTrout in our March 25, 2021 letter, including the 2016 draft BiOp and at least thirteen reports which postdate the City’s 2014 EIR.
19 The 2016 draft BiOp for the Cachuma Project represents the most current scientific information on steelhead in the Santa Ynez River and was intended to replace the Biological Opinion for the Cachuma Project prepared in 2000 (“2000 BiOp”), but consultation was terminated by the Bureau.20 The 2000 BiOp was not sufficient for the Cachuma Project, and consultation was reinitiated.21 The 2016 draft BiOp was relied upon in WRO 2019- 0148’s terms and conditions.22 Unlike the 2000 BiOp, the 2016 draft BiOp found that the Cachuma Project jeopardizes the existence of the southern California steelhead.23 Instead of relying on the 2016 draft BiOp, the report cites to a June 5, 2019 BiOp (NMFS Consultation Number: WCRO-2019-11596) for fish rescues and invasive species management in southern 17 Scott McGolpin, Santa Barbara County Public Works Director Board of Supervisors Agenda Letter to Santa Barbara County Flood Control and Water Conservation District Board of Directors Re: State Water Project Contract Amendment 21 (April 20, 2021); See also Nick Welsh, Santa Barbara County’s 10-Year Rainfall Average at ‘AllTime Low’, quoting Santa Barbara County Water Agency Director Tom Fayram, Santa Barbara Independent https://www.independent.com/2021/04/08/santa-barbara-countys-10-year-rainfall-average-at-all-time-low/ (April 8, 2021).
18 Letter from Linda Krop, Chief Counsel, EDC, and Brian Trautwein, Environmental Analyst/Watershed Program Coordinator, EDC, on behalf of CalTrout to Alan B. Lilly, Presiding Hearing Officer, SWRCB at 8 (March 25, 2021) (“CalTrout (2021)”). 19 Id. at 9 – 10. 20 NMFS, Endangered Species Act Section (7)(a)(2) Draft Biological Opinion, Operation and Maintenance of the Cachuma Project, NMFS Consultation 2014-1014 (November 28, 2016) ((“NMFS 2016)”); See also NMFS, Endangered Species Act Section 7 Consultation Biological Opinion US Bureau of Reclamation Operation and Maintenance of the Cachuma project on the Santa Ynez River in Santa Barbara County, California (September 11, 2000); See also SWRCB 2019-0148 at 36 and 92. 21 NMFS (2016) at 3. 22 SWRCB WRO 2019-0148 Term 15 at 133 and Term 26 at 143. 23 Id. at 140.

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

California and “fry emergence traps” on the Ventura River which bear little relevance to the project.
24 The City’s omission of the relevant 2016 draft BiOp undermines the credibility of the report.

Moreover, despite CalTrout’s request, the City does not address the likelihood that releases under WRO 2019-0148 will result in a larger steelhead population downstream from Alisal Bridge, or the significant new effects that the City’s wells would cause on steelhead downstream from the Alisal Bridge during wet and above normal years when higher releases are required and during below normal, dry, and critically dry years when the WRO does not require increased water releases.
25 Finally, CalTrout commented that “technical memo 6 incorrectly assumes no increase in evapotranspiration by phreatophytes.”26 The City does not address this issue in its studies. The increased flows required by WRO 2019-0148 will result in an increase of riparian vegetation in the River. EDC demonstrated this fact in its March 25, 2021 letter to the SRCWB by showing a series of aerial photographs depicting a substantial increase in riparian vegetation in response to the 2000 BiOp’s lesser target flows. The increased vegetation resulting from the greater releases pursuant to WRO 2019-0148 will further increase the riparian phreatophyte vegetation, thereby increasing the amount of water removed from the River by way of evapotranspiration. Ignoring this water loss is a significant shortcoming of technical memo six, but this was not addressed in the Hydrological Report.

Therefore, the Hydrological Report is inadequate.

II. The Biological Report is Inadequate to Evaluate Impacts to Species and Habitats.

The May 26, 2021, Pax Environmental Terrestrial Biological Resources Technical Report (“Biological Report”) incorrectly concludes that steelhead are not present, lacks adequate biological surveys, and contains flawed analysis.

A. The Biological Report Incorrectly Finds that Steelhead Do Not Occur in the Project Area.

The Biological Report claims that the southern California steelhead “does not occur” due to a “lack of suitable habitat.” (Pax at 17 and 23) This egregiously incorrect statement ignores a vast body of evidence including the 2000 BiOp and 2016 draft BiOp and supporting scientific 24 NMFS, Endangered Species Act (ESA) Section 7(a)(2) Biological Opinion NMFS Consultation Number: WCRO2019-11596 (June 5, 2019). The report substantially mischaracterizes this 2019 BiOp as relating to “the effect of river wells adjacent to the Santa Ynez River” (report at 1) when instead it evaluates “Steelhead Rescue and Relocation” and “invasive species management” in southern California and “fry emergence traps” on the Ventura River.
25 SWRCB WRO 2019-0148 at 134 – 135. (September 6, 2019). 26 EDC (2021) at 12 – 15.

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

literature, WRO 2019-0148, the SWRCB’s Cachuma Project Administrative Record,27 and the Bureau of Reclamation’s Annual Monitoring Reports and Summaries dating back twenty-seven years.
28 Pax omitted all of these reports, orders, studies, and opinions from the Biological Report’s references section and there is no indication they were considered by Pax. (Pax at 10) B. The Biological Survey is Inadequate.

The biological survey undertaken to inform the Biological Report is insufficient and does not conform with biological survey guidelines or protocol.

1. The Biological Report Failed to Provide Protocol-level Surveys Necessary to Document Special-Status Species.

The April 2, 2021 “site visit” was limited to a single “reconnaissance-level field survey.” (Pax at 2) Reconnaissance-level surveys involve a site visit and recording species identified directly, through prints, vocalizations, or scat, but do not include actively searching for specific species using protocols approved by resource agencies.
29 Special-status species can be difficult
to identify and require active searching using specific techniques approved by California Department of Fish and Wildlife (“CDFW”) and U.S. Fish and Wildlife Service (“USFWS”). 30 For example, these agencies have developed protocols to ensure effectiveness, consistency, and accuracy in biological surveys for California red-legged frogs (“CRLF”). 31 The Santa Barbara
County Planning and Development Department also stressed the need for such surveys in the context of an Environmental Impact Statement (“EIS”) regarding another project:

Protocol-level or ‘focused’ surveys for special-status plant and wildlife species must be done before the EIS is prepared in order to properly define the biological baseline setting for the purposes of environmental review and the EIS’s biological impact analysis. 27 SWRCB, Cachuma Project Docket
https://www.waterboards.ca.gov/waterrights/water_issues/programs/hearings/cachuma/ (2003 – 2019). 28 US Bureau of Reclamation, Synthesis and Analysis of Fishery and Habitat (1993 – 2004), Annual Trend Monitoring Report and Trend Analysis for 2005 – 2008, and 2008 - 2020 Annual Monitoring Reports and Summaries https://www.cachuma-board.org/annual-reports-and-documents. 29 See e.g., ECORP Consulting, Inc, Biological Reconnaissance Survey and Focused Surveys for Sensitive Plants, Least Bell’s Vireo, and Southwestern Willow Flycatcher for Vulcan Materials Company’s Azusa Rock Facility Los Angeles County, CA at 6 – 7 https://www.ci.azusa.ca.us/DocumentCenter/View/4383/Appendix-C439-BioAssessment-Revised (December 2009). 30 California Department of Fish and Wildlife, Survey and Monitoring Protocols and Guidelines, https://wildlife.ca.gov/Conservation/Survey-Protocols (June 9, 2021). 31 California Department of Fish and Wildlife, Survey and Monitoring Protocols and Guidelines, https://wildlife.ca.gov/Conservation/Survey-Protocols#377281282-amphibians (June 4, 2021); See also US Fish and Wildlife Service, Revised Guidance on Site Assessments and Field Surveys for the California Red-legged Frog https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=83914&inline (August 2005) (“USFWS (2005)”).

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

Reconnaissance-level surveys are inadequate to establish the biological baseline for the EIS.
32 However, Pax did not undertake any protocol-level surveys for the Biological Report, marking a critical deficiency. (Pax at 2)

2. The Biological Survey Was Not Timed to Document Species Which May be Identifiable only During Certain Seasons, Conditions, or Times.

Biological surveys typically entail multiple surveys during different days, seasons, and hours to document plant and animal species which are present or identifiable only at certain times of the day or night or season or that are active during certain climatic conditions. For example, CDFW and USFWS Protocol for CRLF surveys entail a minimum of eight surveys, recommend day and night surveys, and surveys of aquatic habitat when present, and identify periods following rains as when CRLF can be identified making “overland excursions through upland habitats.”33As the County of Santa Barbara has stated in providing guidelines for how biological surveys should be conducted: “Field searches should be conducted in such a manner that they will locate any listed or special-status species that may be present/a resident or that may utilize the site on a seasonal rather than year-round basis.”34 Here, at least two special-status bats may be present. (Pax at 22) Bat survey protocols involve night surveys which were not undertaken.35 The site visit was limited to one sunny day, did not entail night surveys or aquatic habitat surveys, and was not timed to coincide with seasonal bloom periods, specific times of day when special-status wildlife may be active, or periods following rain when certain species are more likely to be observed. The lack of multiple surveys timed to document special-status species is a significant deficiency in the Biological Report.

3. The Biological Survey Contains Numerous Additional Flaws.

In addition, the one-day survey is inadequate because it:
• Occurred only on the north bank of the Santa Ynez River. (Pax at 2) • Omitted the active River channel where impacts from water extraction on groundwater, surface water, aquatic and riparian habitat, and river flows would be most pronounced. (Pax Figure 1 at 3)
32 Letter from Dianne M. Black, Director, Santa Barbara County Planning & Development Department to Bakersfield RRM Hydraulic Fracturing Analysis at 3 (September 7, 2018). 33 USFWS (2005) at 1, 3, and 5 – 7. 34 County of Santa Barbara Environmental Thresholds and Guidelines Manual Appendix A at A-10 https://www.cityofgoleta.org/home/showpublisheddocument/23913/637321442847330000 (October 2002). 35 Donald W Thomas, and Stephen D. West, Sampling for Bats, US Forest Service General Technical Report PNWGTR-24 https://www.fs.fed.us/pnw/pubs/pnw_gtr243.pdf (September 1989); See also Bat Survey Solutions, Field Survey Website https://batsurveysolutions.com/pages/field-survey (June 10, 2021).

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

• Omitted the River and riparian habitat extending downstream from proposed Well Site B where impacts from water extraction would be expected.
36 • Assumed that riparian habitat was limited to a “small band” along the River and “a small remnant in proposed Well Site B,” when substantially more riparian habitat occurs in the River channel (Pax at 7; see also Pax Figure 1 at 3)
C. The Biological Report’s Impact Analysis is Flawed.

The Biological Report’s conclusions regarding project impacts do not consider relevant new information, do not consider the current baseline conditions under WRO 2019-0148, do not account for all project impacts, and discount significant new effects. The most serious flaws in the report’s impact assessment include:
• The report does not account for the changed baseline conditions under WRO 2019-0148, i.e., higher flows during wet and above average years which result in:
o Increased riparian habitat quality and quantity for species such as least Bell’s vireo and southwestern willow flycatcher, and
o Increased aquatic habitat quality and quantity such as steelhead spawning, migration, rearing, and over-summering habitats.
• The report and impact analysis fail to consider significant new information and changed circumstances, including WRO 2019-014837 which significantly changes baseline conditions, documents impacts to steelhead caused by water extraction, and identifies increased target flows necessary to protect steelhead as a public trust resource in the Santa Ynez River.
• The report and impact analysis fail to consider significant new information, including the draft 2016 BiOp38 which identifies effects of reduced flows on steelhead and target flows necessary to protect steelhead.
• The report fails to consider the Bureau of Reclamation’s Annual Maintenance Reports which identifies flow impairments and resulting steelhead mortality events and fish rescues caused by River water extraction projects.
39 36 See e.g., Stetson Engineers, Draft technical memo six, Table 20 at page 26 identifying surface and groundwater drawdown impacts extending at least 6,000 feet downstream from the well sites (January 24, 2011). 37 The Report does not list WRO 2019-0148 as a reference or mention it and it is unclear whether Pax reviewed WRO 2019-0148 or in what detail it was reviewed. 38 The Report does not list the 2016 draft BiOp as a reference or mention it and it is unclear whether Pax reviewed the 2016 draft BiOp or in what detail it was reviewed. 39 See e.g., US Bureau of Reclamation, 2012 Annual Monitoring Summary at 26 - 27 https://www.cachumaboard.org/files/fdf190ea4/2012+Annual+Monitoring+Summary.pdf (March 9, 2016) (“Bureau of Reclamation (2016)”); see also: US Bureau of Reclamation https://www.cachuma-board.org/annual-reports-and-documents (1993 – 2020).

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

• The report and impact analysis incorrectly conclude that flow reductions do not cause substantial new impacts.
• The report and impact analysis incorrectly equate flow reductions with natural “fluctuations.”
• The report concludes that impacts to steelhead are less than significant because they are “only localized effects.” (Pax at 7 – 8) However, localized effects can be substantial if steelhead are present in the localized area. Recent fish kills in the Santa Ynez River due to drying conditions downstream from River water extraction projects, including the City’s existing River wells, demonstrate that localized effects can be very substantial. 40 • Under “Potential Direct / Indirect Adverse Effects Upon Special-status Species.” the report omits analysis of impacts to numerous special-status species. • The report incorrectly finds that the 2000 BiOp will “ensure long term survival of steelhead.” (Pax at 8) The 2016 draft BiOp found that “A new biological opinion is necessary and appropriate because… new information reveals operation and maintenance of the Cachuma project affects endangered steelhead or critical habitat designated for this species in a manner or to an extent not previously considered in the 2000 biological opinion.”41
• The report incorrectly states that “implementation of the Proposed Revised Project would not interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors or impede the use of native wildlife nursery sites,” and lacks supporting evidence. (Pax at 8) • The report incorrectly finds that ongoing water releases pursuant to WRO 94-5 will mitigate impacts to species caused by reduced flows.
42 (Pax at 8 – 9)
• Other than the dismissive discussion of southwest willow flycatcher nesting on page 7, the report omits the effects of water extraction on nests located in the riparian habitat enhanced by water releases pursuant to WRO 2019-0148 Term 16. 43 • The report does not evaluate project impacts to CRLF aquatic habitat or breeding ponds in the River where the most substantial effects to CRLF would occur. 40 Bureau of Reclamation (2016) at 26 – 27. 41 NMFS (2016) at 3. 42 The report’s reference to WRO 94-5 demonstrates the report fails to acknowledge that WRO 2019-0148 is in effect and governs releases. 43 SWRCB WRO 2019-0148 at 134 – 137.

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

In conclusion, the Biological Report incorrectly finds that steelhead are not present, lacks adequate biological surveys, and contains flawed analysis, leading to the incorrect conclusion that there will be no new significant environmental impacts.

III. The City Must Prepare a Subsequent EIR.

As detailed in our March 25, 2021 letter, a subsequent EIR is required under CEQA, and the City’s new studies do not change that. Here, (1) substantial changes have occurred with respect to the circumstances under which the project will be undertaken; and (2) new information of substantial importance shows that the project will have one or more significant effects not discussed in the previous EIR. See Cal. Code Regs., tit. 14, § 15162 (a)(2), (a)(3)(A).

A. A Subsequent EIR is Required in Light of Changed Circumstances.

Substantial changes to the circumstances under which the project will be implemented necessitate major revisions to the 2014 EIR “due to the involvement of new significant environmental effects.” Cal. Code Regs., tit. 14, §15162(a)(2). For example, WRO 2019-0148 requires significant changes to the flows in the Santa Ynez River resulting in changes to the quantity and quality of steelhead habitat in the project location. 44 This substantially changed the
circumstances under which Solvang’s project would be carried out (i.e., baseline flows at Alisal Bridge increased by 333%-3,200% during above average and wet years). These changed circumstances will result in an increase in steelhead habitat and presence in the River downstream from Alisal Bridge where the City’s project at Well Site B would cause new significant impacts to steelhead and their habitat.

While the City’s studies (GSI, May 28, 2021, and Pax Environmental, May 26, 2021) acknowledge WRO 2019-0148, the City continues to overlook the implications of the significantly changed circumstances and baseline conditions resulting from the WRO. 45 The City
continues to incorrectly allege that by moving wells further downstream from the Alisal Bridge target flow measuring location, the project is avoiding or reducing impacts on steelhead. (See e.g., GSI at 3, and Table 2 at 12) However, the River downstream from Alisal Bridge is designated critical habitat for steelhead, and supports steelhead migration, spawning, rearing, and over-summering.
46 Moreover, the changed circumstances of more habitat and fish present in the vicinity of and downstream from Well Site B means that more steelhead will be exposed to the 44 The Status Conference Statement claims the project would be “consistent with” the 2019 Order. (Statement at 3) This assertion is incorrect because the Order increases and enhances habitat downstream from Alisal Bridge, while the 2014 EIR and Stetson Tech Memo #6 both claim that steelhead habitat downstream from Alisal Bridge is not significant or is nonexistent. 45 SWRCB WRO 2019-0148 at 72 stating, “flow requirements would provide sufficient flows to improve downstream rearing conditions into the Alisal Reach and likely below the Alisal Reach.” See also Id. at 94 stating, “The effects of Table 2 Flows on steelhead in the river and verification of the amount of additional habitat provided, including habitat below the Alisal Reach.” See also Id. at 139 stating, “The effects of Table 2 flows on steelhead in the river and quantification of the amount of additional habitat provided, including habitat below the Alisal Reach.” 46 See e.g., Bureau of Reclamation (2016) at 26 - 27.

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

effects of the wells’ drawdown of surface water in the River, causing a significant new impact not identified in the 2014 EIR.

B. A Subsequent EIR must be Prepared in Light of New Information Showing the Project Will Have Significant Effects Not Previously Examined.

New information of substantial importance, which could not have been known at the time of the 2014 EIR, shows that the project will result in significant impacts which were not identified in the 2014 EIR. See Cal. Code Regs., tit. 14, §15162(a)(3)(A). Such information includes: (1) WRO 2019-0148, (2) the draft 2016 BiOp and supporting scientific studies, (3) NMFS’ 2016 South-Central/Southern California Coast Steelhead Recovery Planning Domain 5- Year Review: Summary and Evaluation of Southern California Coast Steelhead Distinct Population Segment (“5-Year Status Review”), and (4) the September 9, 2019 Assessment of Steelhead Habitat and Migration Barriers within Watersheds Impacted by the Thomas, Whitter, and Topanga Wildfires. (EDC March 25, 2021 Letter, Pages 3-7, Sections I.B.1., I.B.2., I.B.3., and I.B.4.) The City’s studies fail to adequately address these sources, as explained below.

1. The City’s Studies Fail to Adequately Address WRO 2019-0148.

As explained above, the City’s new studies acknowledge WRO 2019-0148 but do not address how the increased steelhead habitat and population at and downstream from Alisal Bridge resulting from the WRO will result in a significant new effect.

2. The City’s Studies Fail to Address the NMFS 2016 Draft BiOp.

NMFS’ 2016 draft BiOp is based “on the best scientific and commercial data available”47 and demonstrates that the reduction of flows downstream from the Alisal Bridge will harm steelhead migration, spawning, rearing, and over-summering and cause significant new impacts that were not reported in the 2014 EIR.

3. The City’s Studies Fail to Address NMFS’ 2016 5-Year Steelhead Status Review and CDFW’s Thomas Fire Report.

The City’s studies do not address NMFS’ 5-Year Status Review or CDFW’s Thomas Fire report, both of which provide new information of substantial importance. For example, the Thomas Fire Report demonstrates that significant regional habitat for southern California steelhead was lost in 2017 and 2018 due to the Thomas Fire and subsequent debris flows, further imperiling the species.48
47 SWRCB WRO 2019-0148 at 92. 48 Pacific States Marine Fisheries Commission and California Department of Fisheries and Wildlife, Assessment of Steelhead Habitat and Migration Barriers within Watersheds Impacted by the Thomas, Whitter, and Topanga Wildfires (September 9, 2019).

June 17, 2021
CalTrout Comments on Technical Memoranda and Reports

These sources of new information of substantial importance, which were not available at the time of EIR certification in 2014, demonstrate that the project will result in significant new impacts. Therefore, a subsequent EIR is required.

IV. Conclusion
The City’s studies are inadequate to address impacts of the City’s project on steelhead and other species and fail to respond to the issues raised in CalTrout’s previous comments.

We therefore request that the City: 1) conduct hydrological, environmental, and other analyses in line with these comments; and 2) prepare a subsequent EIR to fully and adequately analyze the potential impacts of the proposed project. Without this analysis, a hearing in the matter is premature.

Thank you for your consideration of this request.

Sincerely,
Maggie Hall
Senior Attorney
Brian Trautwein
Environmental Analyst/Watershed Program Coordinator
cc: Russell Marlow, CalTrout
City of Solvang
California Department of Fish and Wildlife
National Marine Fisheries Service
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PROOF OF SERVICE
I am employed in the County of Santa Barbara, California. I am over the age of 18 years and not a party to the foregoing action. My business address is 906 Garden Street, Santa Barbara, California, 93101.

On June 17, 2021, I served the:

City of Solvang Petitions: California Trout Comments Regarding Technical Memoranda and Reports
submitted by the Environmental Defense Center on behalf of California Trout, on all parties listed in the attached Service List, by:
• providing a true and correct copy of the Comments by including a list of email addresses of the parties or their representatives in an electronic mail carbon copy “cc” list along with the email submitting the Comments to the Administrative Hearings Office.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

Executed on June 17, 2021 at Santa Barbara, California. /s/Margaret M. Hall
Margaret M. Hall

SERVICE LIST
B. Tilden Kim
Richards Watson Gershon
350 South Grand Ave., 37th Floor
Los Angeles, CA 90071
[email protected]
Attorney for City of Solvang
Stephanie Osler Hastings
Jessica L. Diaz
Brownstein Hyatt Farber Schreck, LLP
1021 Anacapa Street, 2nd Floor
Santa Barbara, CA 93101
[email protected]
[email protected]
Attorneys for Alisal Guest Ranch
Gary M. Kvistad
Brownstein Hyatt Farber Schreck, LLP
1021 Anacapa Street, 2nd Floor
Santa Barbara, CA 93101
[email protected]
Attorney for Santa Ynez River Water
Conservation District, ID No. 1
Elisabeth L. Esposito
Brownstein Hyatt Farber Schreck, LLP
1415 L Street, Suite 800
Sacramento, CA 95814
[email protected]
Attorney for Santa Ynez River Water
Conservation District, ID No. 1
Laurie K. Beale
NOAA Office of General Counsel
GCNW, 7600 Sand Point Way NE
Seattle, WA 98115
[email protected]
Attorney-Advisor for NOAA Fisheries
Darren Brumback, Fisheries Biologist
NOAA Fisheries
501 West Ocean Blvd., Suite 4200
Long Beach, CA 90802
[email protected]
Maggie Hall
Linda Krop
California Trout
Environmental Defense Center
906 Garden Street
Santa Barbara, CA 93101
[email protected]
[email protected]
Attorneys for California Trout
Steven M. Torigiani
Brett A. Stroud
Young Wooldridge, LLP
1800 30th St., 4th Floor
Bakersfield, CA 93314
[email protected]
[email protected]
Attorneys for Santa Ynez River Water
Conservation District
Paeter Garcia, General Manager
Santa Ynez River Water Conservation
District, ID No. 1
P.O. Box 157
Santa Ynez, CA 93460
[email protected]
Nancee Murray
Lena Germinario
Office of General Counsel
California Department of Fish and Wildlife
P.O. Box 944209
Sacramento, CA 94244-2090
[email protected]
[email protected]
Attorneys for California Department of
Fish and Wildlife
906 Garden St. Santa Barbara, CA 93101
PHONE (805) 963-1622 FAX (805) 962-3152
www.EnvironmentalDefenseCenter.org
July 12, 2021
Alan B. Lilly, Presiding Hearing Officer
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812-0100
Submitted via email to [email protected] Re: City of Solvang Petitions: California Trout Comments Regarding City Status Conference Statement
Dear Mr. Lilly:

These comments on the City of Solvang’s July 2, 2021 Status Conference Statement are submitted on behalf of California Trout (“CalTrout”), pursuant to the Amended Status Conference Order and Notice of Status Conference dated May 3, 2021 (“Notice”).

As an initial matter, CalTrout disagrees with the City’s characterization of settlement negotiations. Second, despite the City’s claims otherwise, the City’s Technical Memoranda and Reports (or “studies”) are inadequate to assess impacts on endangered Southern California steelhead and other species in the Santa Ynez River (“River”), and new studies must be prepared in order for the City to support its Petition. Third, the City is required to prepare a subsequent Environmental Impact Report (“SEIR”) pursuant to the California Environmental Quality Act (“CEQA”) rather than an Addendum to the 2014 Master Plan Final EIR (“2014 EIR”).

Accordingly, any hearing in this matter should be scheduled after a subsequent EIR is released. Should the City fail to prepare a SEIR, we request that the State Water Resources Control Board (the “Water Board”) exercise its authority as the responsible agency under CEQA to do so itself. See Cal. Code Regs., tit. 14, § 15096(e)(3) (“If a responsible agency believes that the final EIR . . . prepared by the lead agency is not adequate for use by the responsible agency, the responsible agency must either [among other options] . . . Prepare a subsequent EIR if permissible under Section 15162.”).

July 12, 2021
CalTrout Comments on City Status Conference Statement

I. CalTrout Participated in Settlement Negotiations in Good Faith and Should Have an Opportunity to Provide Input on Any Settlement Agreement Reached.

CalTrout has consistently acted in good faith and maintained a productive approach to negotiations and disagrees with the City’s characterizations to the contrary.1 With regard to the City’s original proposal, the parties participated in extensive settlement phone calls. Ultimately, the parties reached agreement in principle on all but two terms, as detailed in CalTrout’s October 5, 2017 Letter to the Water Board. These terms related to the monitoring and pumping restrictions to be implemented. As the negotiations unfolded, the City provided different proposed pumping plans, and CalTrout continued to provide input on how to modify the pumping plans in a way that would provide protections for steelhead as a public trust resource.

Doing so was appropriate in the context of settlement of the City’s Petition and was not an effort to articulate more restrictive proposals. When we were unable to reach agreement with the City on a final settlement, CalTrout provided a detailed letter to the Board requesting that the Board adopt these terms as conditions to any approval of the City’s petition as set forth in the October 5, 2017 letter.

However, in 2020 the City underwent substantial changes in its City Council, retained a new attorney for this matter, and ultimately modified its Petition. CalTrout organized a settlement meeting with the City, National Marine Fisheries Service (“NMFS”), and California Department of Fish and Wildlife (“CDFW”) which occurred on September 9, 2020, and persistently requested more information about the new proposal. CalTrout repeatedly contacted counsel for the City to request to have input on the amended proposal so that the parties could reach resolution on terms and narrow the issues that might proceed to hearing. The City regularly either did not respond, or responded leaving inadequate amounts of time for the parties to provide meaningful input. There is no question as to CalTrout’s good faith in participating in, and largely driving, these settlement efforts.

In addition, the City reports reaching a settlement with other parties in this matter that will result in a revised project description. CalTrout was not invited to participate in these negotiations. In terms of efficiently resolving the City’s Petition, it would be prudent for any settlement to globally address all protests. CalTrout is concerned that if the City commits to a new project description to satisfy only some protests, the City will be less flexible to modify its Petition to ensure public trust resources of the River are adequately protected.

II. The City’s Technical Memoranda and Reports are Inadequate.

The City’s response to CalTrout’s comments regarding adequacy of its Technical Memoranda and Reports fail to resolve CalTrout’s concerns. As an overarching matter, CalTrout is not raising untimely issues concerning adequacy of the 2014 EIR; rather, we are requesting 1 See Letter from Chelsea O’Sullivan, RWG to Alan B. Lilly, Presiding Hearing Officer, State Water Resources Control Board at 2 (July 2, 2021) (“RWG (2021)”).

July 12, 2021
CalTrout Comments on City Status Conference Statement

that the City’s current Petition be appropriately supported by updated analysis in the form of a SEIR in order to proceed through the Water Board process. 2 These issues are timely.

In addition, CalTrout is not arguing that this proceeding concerns overall management of the entire River and is well aware of the state and federal processes underway concerning the Cachuma Project. However, information regarding current conditions in the River is necessary to assess the impacts of the City’s Petition and is thus appropriate to evaluate in this context.

CalTrout’s specific responses to the City’s statements regarding its studies are as follows:

A. Documents Cited by CalTrout are Appropriate to Consider in this Matter.

The City attempts to dismiss certain documents from its consideration. 3 However, each of
the below documents are important to consider for the following reasons:
• ECORP Consulting, Inc, Biological Reconnaissance Survey and Focused Surveys for Sensitive Plants, Least Bell’s Vireo, and Southwestern Willow Flycatcher for Vulcan Materials Company’s Azusa Rock Facility Los Angeles County, CA This document sets forth the protocol-level survey methodology for least Bell’s vireo to underscore the lack of protocol-level surveys undertaken by the City.4 These protocols involve surveys “at least eight (8) times during the period … conducted at least 10 days apart… between dawn and 11:00 am.”
5 However, the City conducted only one survey and does not disclose the time of day.
6 • Santa Barbara County Thresholds and Guidelines Manual These thresholds were cited as an example of how an agency determines the environmental setting for biological resources when preparing an EIR, emphasizing that protocol-level surveys are necessary to determine the presence or absence of certain special status species.
• 2012 and 2020 Bureau of Reclamation Annual Monitoring Summary and Trend Analyses The City’s statement suggests that the 2012 Annual Monitoring Summary7discloses an increase in steelhead.8 This is incorrect because the adult steelhead population has not increased in twenty years and has in fact decreased during the past decade. The 2020 Annual Monitoring 2 RWG (2021) at 2.
3 RWG (2021) at 3-4.
4 Pax Environmental terrestrial biological report (May 26, 2021) (“Pax (2021”). 5 US Fish and Wildlife Service, Least Bell’s Vireo Survey Guidelines (January 19, 2001) https://www.fws.gov/pacific/ecoservices/endangered/recovery/documents/LBVireo.2001.protocol.pdf 6 Pax (2021) at 2-3.
7 U.S. Bureau of Reclamation, 2012 Annual Monitoring Summary and Trends Analysis https://www.cachumaboard.org/files/fdf190ea4/2012+Annual+Monitoring+Summary.pdf (March 9, 2016) (“Reclamation (2016)”). 8 Meridian (2021) at 6.

July 12, 2021
CalTrout Comments on City Status Conference Statement

Summary shows that there has been no increase in the adult steelhead population between 2001 - 2020.
9 (Figure 1) Furthermore, the 2012 Annual Monitoring Summary shows that there is spawning downstream from Alisal Bridge, directly contradicting the City’s repeated claims that there is no spawning downstream from Well Site B.

Figure 1. Reclamation 2020 Annual Monitoring Summary. https://www.cachuma-board.org/files/c1d05a8ac/WY2020-AMSfinal-022421-1-all.pdf • NMFS 2016 South-Central-Southern California Steelhead 5-Year Status Review Despite a lot of effort to remove barriers to steelhead migration, steelhead have not shown any progress toward recovery and remain “one of the most endangered fish species in the United States.”
10 This analysis provides recent information on the status of steelhead. • Pacific States Marine Fisheries Commission and California Department of Fisheries and Wildlife, Assessment of Steelhead Habitat and Migration Barriers within Watersheds Impacted by the Thomas, Whitter, and Topanga Wildfires (September 9, 2019).

The City claims this report is irrelevant because it is not specific to the Santa Ynez River.11 However, this document prepared by CDFW and Pacific States Marine Fisheries Commission highlights that the regional steelhead population inhabiting watersheds in Santa Barbara County has been diminished since the 2014 FEIR. Southern California steelhead stray between creeks and rivers.12 The referenced creeks and the River support a shared regional steelhead population. Loss of populations and habitats in local waterways affects the regional population. As a result of the loss of habitat and populations in local watersheds due to the 9 Bureau of Reclamation, 2020 Annual Summary Report (February 24, 2021). 10 Penny Ruvelas, NOAA Fisheries Service Area Office Supervisor for Protected Resources in Southern California, NMFS. https://caltrout.org/steelhead-salmon/final-steelhead-recovery-roadmap-for-southern-california-steelheadreleased (2012). 11 RWG (2021) at 9.
12 NMFS, Southern California Steelhead Recovery Plan at 2-21 (2012); See also Rosi Dagit, Michael T. Booth, Mauricio Gomez, Timothy Hovey, Steve Howard, Scott D. Lewis, Sandra Jacobson, Mary Larson , Dana Mccanne, and Timothy H. Robinson, Occurrences of Steelhead Trout (Oncorhynchus mykiss) in southern California, 1994- 2018 stating, “Genetic data from southern California indicates that although many adults return to their natal stream to spawn, others stray (Clemento et al. 2009; Pearse et al. 2014).” July 12, 2021
CalTrout Comments on City Status Conference Statement

Thomas Fire, the City’s Project would impact a diminished regional steelhead population rendering the project’s impacts more significant than had the local streams retained populations.

B. CalTrout’s Identification of Water Supply Alternatives Provides Information Demonstrating Viable Water Supply Options Exist.

The City’s current proposal appears to divert more water from the River than needed to accommodate future growth, and does not adequately analyze water supply alternatives. Rather than recognize this, the City focuses instead on its claim that impacts will be smaller in scope.13 The City’s modified Petition includes a table entitled Total Water Production Based on the Master Plan (Updated) Current and Anticipated Future Supply by Source which shows that it can obtain at least 46 AFY from ID #1,
14 but the 2014 EIR discloses that the City can obtain up to 1,500 AFY from this source.15 The 2014 EIR discloses a Central Well which delivered 146 AFY circa 2014, but this well is not included in the modified Petition table entitled Total Water Production Based on the Master Plan (Updated) Current and Anticipated Future Supply by Source.
16 The modified Petition’s table also omits stormwater infiltration projects the City is planning to implement.
17 In addition, the City’s statement discloses that the City has constructed two new upland wells since 2014.18 The City’s statement fails to include the production rate of its new upland wells, which may further decrease the need to divert water from the River.19 The City refers to future water recycling but does not disclose the extent to which this would further reduce reliance on diverting water from the River.20 The City’s per capita water use in 2016 approximately doubled that of the City of Lompoc which is also located along the Santa Ynez River.21 The City does not disclose or quantify water conservation as a source that would reduce the need for diversions from the River and help the City attain its stated objectives 13 RWG (2021) at 4-5.
14 Letter from Chip Wullbrandt, Price, Postel, and Parma LLP to Alan B. Lilly, Presiding Hearing Officer, State Water Resources Control Board at 4 (October 19, 2020). 15 City of Solvang, Water Systems Master Plan Update Final EIR at 2.0-6 (2014). 16 Id. at 2.0-7; See also City of Solvang, Water Systems Master Plan at 19 (2019). 17 City of Solvang, Solvang Stormwater Master Plan at 40 (June 28, 2019). See also Jennifer Best, Contributing Writer, Solvang declares stage one drought condition, calls for 15% voluntary use reduction, Lompoc Record https://lompocrecord.com/news/local/solvang-declares-stage-one-drought-condition-calls- for-15-voluntary-usereduction/article_a525280f-346f-5e80-ad05-1c818cbaaa6a.html (April 13, 2021). 18 RWG (2021) at 4.
19 Id. at 4.
20 Id. at 4-5.
21 In 2016, Solvang used 164 AFY for M&I purposes and 108 AFY for residential uses based on per capita usage while Lompoc used 84 AFY and 57 AFY, respectively. Santa Barbara County. http://www.waterwisesb.org/uploadedFiles/waterwisesb/Content/Water%20System%20Statistics%20SB%20Co%20 2016(1).pdf (2016).

July 12, 2021
CalTrout Comments on City Status Conference Statement

to “avoid impacts to either public trust resources…”22 and minimize “environmental impacts along the Santa Ynez River.”23
C. Failure to Factor in Specific Evapotranspiration Rates in the Stetson Technical Memos Undermines the City’s Analysis.

The City fails to provide a substantive response to CalTrout’s criticism that the Stetson technical memo #6 does not sufficiently address evapotranspiration caused by increased riparian vegetation growing in response to the Water Board’s 2019 Water Rights Order for the Cachuma Project (“WRO 2019-0148” or “Order”) wet and above average year flows. 24 Adoption of WRO
2019-0148 will significantly increase riparian vegetation and increase evapotranspiration. This may increase water loss during the summertime growing season and exacerbate the effect of the City’s water extraction on steelhead. Therefore, impact modeling must consider increased evapotranspiration in order to accurately address the project’s impacts.

D. The City Must Consider Current Drought and Climate Change Conditions.

The City states that the 2014 EIR considered drought and climate change. 25 However, the
EIR’s analysis of impacts to fisheries includes one passing reference and no analysis of how the Project may affect steelhead considering climate change: “Potential impacts to steelhead migration, spawning and rearing during drought periods, and associated with continuing warming trends in Southern California as a consequence of global climate change are also of concern.”
26 The EIR discusses the need for coordination with other pumpers to protect steelhead during droughts as modeled by Stetson.27 However, the severity of drought conditions during the prior ten years exceeds prior droughts and has superseded the “critical drought” used in Stetson’s modeling.
28 E. Drawdown Poses a Significant Impact to Steelhead Because it Directly Reduces Pool Depth and Eliminates Rearing and Over-Summering Habitat.

Despite the City’s claims to the contrary, evidence indicates that reduced flows beyond 6,000 feet and downstream from the City’s existing wells are already causing mortality in the 22 City of Solvang, Water Systems Master Plan FEIR at 2.0-1 (2014). 23 GSI, Review of Santa Ynez River Mechanics and Technical Memoranda Associated with City of Solvang’s Revised River Wells Project (May 28, 2021) at 2.
24 Stetson Technical Memo #6 at 25 (2011).
25 RWG (2021) at 6.
26 City of Solvang, Final EIR at 5.3-62.
27 Id. at 5.3-43.
28 See e.g., Id. at 5.3-44.

July 12, 2021
CalTrout Comments on City Status Conference Statement

steelhead population and reducing smolt growth, migration, and survival. 29 Any further diversion
from the River underflow would exacerbate impacts.

F. The City Cannot Rely on Cachuma Project Water Releases.

The City’s biological report states, “The Certified EIR stated resources and species that are dependent on current water releases, would not experience impacts because Reclamation will continue water releases to downstream of the Project area as required by Order WR 94-5.

Impacts were found to be less than significant.”
30 The City claims that such statements do not
represent reliance on Cachuma Project releases to mitigate the biological impacts of the City’s project.
31 However, the statement is clear and stands on its own. The City is improperly relying on Cachuma Project releases, which are not designed to mitigate impacts of the City’s project.

III. The City Must Prepare a Subsequent EIR.

Despite the City’s assertions to the contrary, an SEIR is required because (1) substantial changes have occurred with respect to the circumstances under which the project will be undertaken; and (2) new information of substantial importance shows that the project will have one or more significant effects not discussed in the previous EIR. See Cal. Code Regs., tit. 14, § 15162 (a)(2), (a)(3)(A).

A. A SEIR is Required in Light of Changed Circumstances.

Substantial changes to the circumstances under which the project will be implemented necessitate major revisions to the 2014 EIR “due to the involvement of new significant environmental effects.” Cal. Code Regs., tit. 14, §15162(a)(2).

As we have previously asserted, WRO 2019-0148 represents substantially changed circumstances that will involve significant new effects by changing the quantity and quality of steelhead habitat and increase steelhead presence in the project location. The City’s assertions that increased presence of steelhead would not cause more intense impacts32 is illogical, as increased habitat and presence of a species puts more individuals in the population at risk. The City’s claims that the project would be “consistent with” the 2019 Order are incorrect because the Order increases and enhances habitat downstream from Alisal Bridge, while the 2014 EIR and Stetson Tech Memo #6 both claim that steelhead habitat downstream from Alisal Bridge is not significant or is nonexistent. Instead, the City should model conditions with flows based on 29 Reclamation (2016) at 26 – 27; See also O’Dowd, A., B. Trush, D. Colvin, K. Lavery, D. Ichien, and O. AbiChahine. 2014. Annual hydrograph assessment for steelhead migration in the Santa Ynez River. Prepared for National Marine Fisheries Service, Long Beach, California. Humboldt State University River Institute at 73-81 (2014) (“O’Dowd (2014) et al”).
30 Pax Environmental, Terrestrial Biological Resources Technical Report for the CEQA Documentation for the Proposed Revisions to the City of Solvang 2011 Master System Plan Update Environmental Impact Review (EIR) at 8 – 9 (May 26, 2021) (“Pax (2021)”).
31 GSI (July 2, 2021) at 2; See also RWG (2021) at 6.
32 RWG (2021) at 8.

July 12, 2021
CalTrout Comments on City Status Conference Statement

WRO 2019-0148.
33 For example, under the wet year and above average year, flows at Alisal Bridge will be increased from 1.5 to 5 to 48 cfs (up to thirty-two times greater than the 2000 BO during wet and above normal years). These conditions must be analyzed in relation to the City’s project in the form of an SEIR.

B. A SEIR must be Prepared in Light of New Information Showing the Project Will Have Significant Effects Not Previously Examined.

New information of substantial importance, which could not have been known at the time of the 2014 EIR, shows that the project will result in significant impacts which were not identified in the 2014 EIR. See Cal. Code Regs., tit. 14, §15162(a)(3)(A).

Such new information includes the NMFS 2016 Draft Biological Opinion (“2016 Draft BiOp”) and its underlying studies, which the City dismisses as just a “draft.” 34 It is of no import
that the 2016 document is a draft for purposes of federal consultation, because it contains final scientific documents supporting its conclusions. For example, the O’Dowd Annual Hydrograph Assessment for Steelhead Migration supports the conclusion that reduced spring and summer flows substantially harm steelhead and steelhead habitat in the Santa Ynez River by curtailing smolt growth and curtailing or eliminating smolt outmigration to the estuary. 35 The City
discloses that NMFS considers the 2016 Draft BiOp “the best scientific and commercial data available, including the most current scientific studies of Southern California steelhead, which includes the population that occurs in the Santa Ynez River.” 36 However, neither of its studies
cite to this critical document or include it in their respective references sections.

Additional new information in the Reclamation 2012 Annual Monitoring Summary dated March 9, 2016, shows steelhead mortality is already occurring due to a drying river downstream from the City’s existing and proposed Well Site B.
37 This new information indicates that
additional water extraction will further dry out steelhead habitat and cause a significant new impact of steelhead mortality which was not disclosed in the 2014 EIR. Further, the NMFS 5- Year Status Review and CDFW’s Thomas Fire report provide new information of substantial importance concerning the status of steelhead and their habitat. 38 These documents are relevant
33 RWG (2021) at 7.
34 RWG (2021) at 9.
35 O’Dowd et al (2014) at xiv – xvi and 73-81 stating, “With intensifying groundwater demands in the Santa Ynez Valley and several new dams, summer baseflows at Lompoc were vulnerable” and “The loss of stable summer baseflows over a wide range of annual precipitation exceedences must have had a strong negative effect on juvenile steelhead residing in the Lower Santa Ynez River, after migrating from the headwaters above San Lucas Bridge.

This life history tactic for YOY juveniles required lower mainstem streamflows that extended into summer.” (June 30, 2014).
36 Meridian Consultants, State Water Resources Control Board Status Conference Statement Comment Letter Responses at 4, Footnote 9. (July 2, 2021) (“Meridian (2021)”). 37 Reclamation (2016) at 26 - 27.
38 See Pacific States Marine Fisheries Commission and California Department of Fish and Wildlife, Assessment of Steelhead Habitat and Migration Barriers within Watersheds Impacted by the Thomas, Whitter, and Topanga Wildfires (September 9, 2019).

July 12, 2021
CalTrout Comments on City Status Conference Statement

to an assessment of the impacts of the City’s project on steelhead and indicate that project will result in significant impacts not identified in the 2014 EIR.

Therefore, a subsequent EIR is required.

IV. Conclusion
The City’s studies are inadequate to evaluate the impacts of the City’s project on steelhead and other public trust resources. We therefore request that the City prepare a SEIR to fully and adequately analyze the potential impacts of the proposed project. Without this analysis, a hearing in the matter is premature. If the City instead pursues an addendum as currently proposed, we request the Water Board prepare a SEIR as the responsible agency under CEQA.

See Cal. Code Regs., tit. 14, § 15096(e)(3).

Thank you for your consideration of this request.

Sincerely,
Maggie Hall
Senior Attorney
Brian Trautwein
Environmental Analyst/Watershed Program Coordinator
cc: Russell Marlow, CalTrout
City of Solvang
California Department of Fish and Wildlife
National Marine Fisheries Service