HomeMy WebLinkAbout07/05/1995, C-2 - MODIFICATION OF THE CITY OF SAN LUIS OBISPO'S WATER RIGHTS PERMIT FOR SALINAS RESERVOIR (PERMIT 5882). MEEn
1��iuI� WIIIIII�,ll lllll`I city of San LLAIS OBISPO July
5 A1995
ITEKA
IIO COUNCIL AGENDA REPORT NUMBER:
FROM: John Moss Prepared By: Gary W. Henderson 4=6v4'A
Utilities D for Water Division Manager
SUBJECT: Modification of the City of San Luis Obispo's Water Rights Permit for Salinas
Reservoir (Permit 5882).
CAO RECO NEM ENDATION:
By Motion, approve the Stipulated Agreement for Permit 5881 of the U.S. Army Corps of
Engineers (Corps) and Permit 5882 of the City of San Luis Obispo (City) and authorize the
Mayor to execute the agreement.
DISCUSSION:
The Salinas Dam was constructed by the federal government in 1941, principally as an
emergency measure to assure an adequate supply of water for Camp San Luis Obispo. It was
also intended to supply water to the City of San Luis Obispo. The United States government
filed an application with the State Water Resources Control Board to appropriate water from the
Salinas River on May 27, 1941. The state granted Permit 5881 to the United States of America
(now the Corps) which allows for up to 45,000 acre-feet of storage and a maximum direct
diversion of 12.4 cubic feet per second. The area identified in the permit for beneficial use of
the water is Camp San Luis Obispo.
The City of San Luis Obispo filed a identical application on June 4, 1941 with the exception of
the area for beneficial water use being the City. The state granted Permit 5882 to the City with
the same storage and diversion rights identified in Permit 5881. Since 1941, the City has been
using water from Salinas Reservoir to meet the City's water needs under the terms of our permit
and the license (agreement) between the City and the Corps.
The two permits are separate and are not additive (ie. the maximum allowable storage is 45,000
a.f.). The priority under state law is to the first permit in time, therefore the City's permit is
junior to the Corps. This is an unusual situation, to have dual permits, and the State Water
Resources Control Board staff has been interested in "cleaning up" this situation for several
years. Since the Corps has not utilized water under their permit, the State Board staff had
preliminarily recommended revocation of Permit 5881. The Corps then requested a change in
area of beneficial use in their permit to include the City of San Luis Obispo. This request was
protested by the City of Paso Robles as well as the City of San Luis Obispo. The City of San
Luis Obispo staff protested the request due to a number of technical and legal concerns.
The resolution of the protests would require a hearing before the State Board and would require
significant staff time for the Corps and the City, in addition to that of the State Board staff.
Therefore, State Board staff recommended a meeting between the Corps of Engineers and the
City of San Luis Obispo to determine whether there could be a mutually acceptable alternative
i city of San JS OBISPO
COUNCIL AGENDA REPORT
Salinas Reservoir water Permit
Page 2
to the Corps' request for the change to their permit. Attachment A is the stipulated agreement
language that was agreed to between the Corps and City staff at the meeting. The Corps has
formally approved the language and the original signed form has been sent to the City for
execution.
The agreement would allow State Board staff to add a condition to the City's permit and would
not require a Board hearing. Since the protests were filed against the Corps' requested change,
and the agreement would result in revocation of the Corps' permit, there would be no need for
a hearing before the State Board. The agreement would allow the-Board to revoke the Corps'
permit and add the Corps as co-permittee under the City's permit(5882). The area of beneficial
use under the City's permit would remain the same (e. for use within the City of San Luis
Obispo). The changes will not impact the City's water rights and will leave the City/Corp
permit as the "senior" permit at the Salinas Reservoir with the City's use of the water "senior"
to the Corps. This agreement language provides benefits for the City and the Corps. Staff
supports the proposed language and believes that it strengthens the City's water rights at Salinas
Reservoir.
CONCURRENCE
The City Attorney and the City's water rights attorney have reviewed the language and concur
with the recommendation.
FISCAL EIZPACT
The approval of the agreement will have no negative fiscal impacts and may reduce potential
costs if a State Board hearing was required to resolve the protests.
Attachment: A. Stipulated Agreement for Permit 5881 of the U.S. Army Corps of
Engineers (Corps) and Permit 5882 of the City of San Luis Obispo (City)
Attachment A.
STIPULATED AGREEMENT
FOR PERMIT 5881 OF THE U.S. ARMY CORPS OF ENGINEERS (CORPS)
AND PERMrr 5882 OF THE CITY OF SAN LUIS OBISPO (CITY)
The Corps and the City stipulate to revocation of Permit 5881 of the Corps, provided the
following conditions are included in Permit 5882 of the City:
"The Salinas Reservoir is a Federal facility over which the U.S. Army Corps of Engineers
(Corps) has sole discretionary authority to grant access to the Federally owned project works and
to require maintenance thereof as required by the terms and conditions of license agreements that
may be executed by the Corps and the City of San Luis Obispo (City) from time to time. The
City has historically and continuously applied water to beneficial use within the boundaries of
the areas designated for use under both Permits 5881 and 5882. In rerlection of this historical
practice, Permit 5881 held by the Corps and Permit 5882 held by the City shall be combined
under revised terms for Permit 5882. The combined permit shall authorize the continued use
of water within the designated place of use, manner and method of diversion.
Upon completion of the appropriation and beneficial use of water under this Permit 5882, any
license or licenses which may be issued pursuant to Chapter 9 of Part 2 of Division 2 of the
California Water Code shall be issued to the City and to the Corps for water which should have
been found by inspection by the State Water Resources Control Board, to have been applied to
beneficial use. Under the terms of any license and licenses so issued, as between the City and
the Corps, the City shall be given primary authorization to continue appropriation, diversion and
use of water under the terms and conditions of Permit 5882, provided that in the event the City
shall fail to divert water to beneficial use under Permit 5882 for a period of five consecutive
years, the City's rights title and privileges accruing under Permit 5882 shall cease upon
determination by the State Water Resource Control Board that such action is appropriate. The
Corps shall retain any residual rights not exercised by the City. Upon determination that the
City has ceased use of part or all of Permit 5882, the Corps shall then have the sole right to
divert the remaining quantity of water under Permit 5882.
The City shall maintain all necessary agreements with the Corps for the purposes of storing
directly diverting water under Permit 5882. Nothing in Permit 5882 shall be construed as
granting access to project works not under ownership of the City".
Signed:
U.S. Army Corps of Engineers
Date:
Signed:
City of San Luis Obispo
Date:
C�-3
WARREN A.SINSHEIMER III SIry jHEIMER, SCHIEBELHUT& BAGGER.
ROBERT K.SCHIEBELHUT A PROFESSIONAL CORPORATION STREEr ADDRESS
K.ROBIN BAGGETT. 1010 PEACH STREET'
MARTIN I TANGEMAN ATTORNEYS AT LAW
THOMAS M.DUGGAN FACSIMILE
4TTN P.MOROSKI" POST OFFICE BOX 31
DA IUHNKE UNCIL 0 CDD DI 805-541-2802
ENI.ADAMSKI' r�AO ❑ FIN DIRAN 1S OBISPO,CALIFORNIA 93406-0031
...JMAS D.GREEN 805-541-2800
M.SUZANNE FRYER . CAO ❑ FIRE CHIEF
ROY E.OLDEN TTORNEY ❑ PW DIR CLIENT: 0293020
CYNrWA CALDEMA CLERKOI IG OCE CHF
SUSAN S.wAAc C3 MGMT TEAM
THOMAS I MADDEN ❑ EC DIR
MICHELLE A.ROS
STEVEN M.CHANL ❑ C LI
DIR y Jul 5 1995 MEETING qf AGENDA
EY. fl FILE
MARIA L.HUTKM j ❑ PEM biA DATE 7�•/J
_______ITEM #
Honorable Mayor Allen Settle VIA HAND DELIVERY
990 Palm Street
San Luis Obispo, California 93401
Re: Salinas Reservoir Expansion Project
Dear Honorable Mayor Settle:
I represent the Atascadero Mutual Water Company("AMWC"). I am writing to inform the
Council of AMWC's objections to the following two agenda items for the Council's July 5, 1995
Agenda: (1) C-2 -- Salinas Water Rights Permit Modification and (2) B-4 -- Salinas Reservoir
Transfer Agreements.
The City of San Luis Obispo("City") has recently been trying to improve communications
with North County entities, including AMWC. Efforts have included meetings of both elected
officials and staff. These efforts have been generally positive and have the potential of improving
relations between the two areas on several important issues, including the issue of water.
Approval of these two agenda items would represent a disappointing digression from these'
recent efforts.
As to the Transfer Agreements,these documents address several matters of deep concern to
North County entities, including AMWC. Many of these concerns have been conveyed to the City.
Unfortunately, none have been substantively addressed, no meaningful effort has been made to
reconcile these differences and the Council is now being asked to give final approval to these
agreements.
I believe that AMWC and other North County entities are willing to continue a dialog with
the City on these issues. However, approval of these agreements by the City at this time,without
a constructive effort to address and resolve our differences may well be viewed as an abandonment
by the City of any meaningful desire to improve relations with these entities.
RECEIVED
JUL 3 1995
,� 0
CITY CLERK
SAN LUIS OBt`Q'l
v
Honorable Mayor Allen Settle
July 5, 1995
Page 2
Set forth below are some of the objections we have to the City proceeding with these
agreements at this time. The following is not an attempt to fully analyze each issue which may exist.
First,AMWC objects to authorization of any binding agreements pending approval of a final
EIR on the Salinas Reservoir Expansion Project. Neither the City,the County nor any of the North
County entities are capable of fully addressing the various issues raised by this transfer unless and
until the final EIR is completed and approved.
Second,AMWC is concerned that the agreements, as proposed, attempt to tie the hands of
the Board of Supervisors in future actions concerning the Salinas Reservoir and the rights of all
interested parties. This is of particular concern in light of the fact that the EIR has not been
completed or certified.
Paragraph 4A of the Transfer Agreement states that "Zone 17 and the County agree to
endorse and cooperate with the City in the furtherance of the City's Salinas Reservoir Expansion
Project....Zone 17 and the County agree to cooperate with the City as the City accomplishes any
necessary mitigation measures identified in the City's...environmental review or other
documentation...." Thus,the City is extracting from the County the promise that it will support the
expansion regardless of the potential impacts and regardless of whether any mitigation of impacts
is called for in the final EIR"or other documentation". Further, it appears that the County is bound
to whatever the City determines is an appropriate form of mitigation.
The staff report indicates that this provision is necessary to "insure that if the property is
transferred, the County will not obstruct the reservoir expansion project. This is an essential
component of the agreement and is necessary to insure that the expansion project will not be blocked
by the Board of Supervisors following property transfer."
AMWC has informed the City of its concerns related to this language. From discussions
with both City and County officials, AMWC understood that requiring the County to endorse the
expansion would not be a component of these agreements. AMWC is greatly concerned that despite
these reassurances,this language remains virtually unchanged.
Paragraph 5A of the Transfer Agreement restricts the right of the County to seek to modify
in any way the City's water rights concerning the Salinas River. AMWC does not understand the
need for this language. Any interested party, including the County, should have the right to
challenge the City's water rights or to seek modification of such rights. There is no reason AMWC
can see for having the County waive this right for all time as part of a transfer of this property.
4
Honorable Mayor Allen Settle
July 5, 1995
Page 3
Paragraph 5A further provides that the County will operate the Salinas Reservoir in a manner
that will achieve the purpose of appropriating water for the benefit of the City. It should be made
clear that the Reservoir is being operated in a manner to facilitate the interests of all parties,
including those holding water rights downstream such as AMWC.
Third, the agreements refer to Zone 17 of the San Luis Obispo County Flood Control and
Water Conservation District. It is AMWC's understanding that Zone 17 has not been created.
However,AMWC has been told that Zone 17 will probably be only the City. North County entities
and residents have a great interest in the Salinas Reservoir from both a recreation and water resource
standpoint. However, AMWC does not see how they will have input in the operation of Zone 17.
Fourth,related to the prior point, it appears that potential liability of North County residents
for any potential damage from a dam failure or similar problem is greatly increased with the transfer
of these properties to Zone 17. At present,the Army Corp of Engineers, the County and the City
are all parties who may be potentially liable if any such problem arises. As a result of the transfer,
liability appears to be limited to just the City and, under certain circumstances, Zone 17 and the
County. Further, it appears that the City would be the sole entity financially responsible for the
operation and maintenance of the Salinas Dam. It would appear unlikely that the City and the
County would be able to financially respond to a dam failure or similar disaster,particularly in light
of modem budget constraints.
Fifth, paragraph 9A provides that the City shall have full authority to prohibit any activity
at the Salinas Reservoir which is determined to adversely effect water quality, including restricting
recreational uses of the lake. The City is empowered to prohibit such activity even though there may
be feasible and inexpensive ways to mitigate a specific water quality impact. There is no incentive
for the City to be reasonable in this issue.
As indicated,these are just some of the issues AMWC feels needs to be addressed by the City
before these agreements are approved. AMWC remains willing and interested in maintaining a
dialog with the City to address these and other issues of conflict. However, if the City approves
these agreements without working closely with AMWC and other North County entities, it can only
assume that the City is not equally committed to such a dialog.
There are no time constraints which require approval of these agreements at this time. If the
City is sincere in its stated goal of improving relations with north county and working towards
mutually beneficial goals it should table both of these agenda items and recommend that staff work
with the various north county interests.to address these and related concerns.
Honorable Mayor Allen Settle
July 5, 1995
Page 4
Finally, I request the opportunity to address the City Council on the matter of the Transfer
Agreements at tonight's-meeting.
Sincerely yours,
SINSHEIMER, SCHIEBELHUT & BAGGETT
STE EN J. S
SJA:alr
g:\Itr\amwc\26sett1e.705
cc: Councilman Dave Romero (via hand delivery)
Councilman Bill Roalman (via hand delivery)
Councilwoman Kathy Smith (via hand delivery)
Councilwoman Dodie Williams (via hand delivery)
City Attorney Jeffrey G. Jorgensen (via hand delivery)
Utilities Director John Moss (via hand delivery)
r/Water Division Manager Gary Henderson (via hand delivery)
Ken Weathers (via telecopy)
�`I�lylll�llllll�l IIUI�I
city r �.d� MEETING DATE:
C� � san s �B�Sp� 7-5-95
COUNCIL AGENDA REPORT ITEM NUMBER:
FROM: Michael D. McCluskey, Public Works Directeivv�
Prepared by: Barbara Lynch, Civil Engineer
SUBJECT: Consideration of a Supplement to the Local Agency/State Master Agreement for Federal Aid
Projects.
CAO RECONEMM14DATION:
Adopt a Resolution Approving Program Supplement No. 014 to the Local Agency/State
Master Agreement for Federal Aid Projects No. 05-5016 for the Bridge Replacement Project
- Santa Rosa Street at San Luis Obispo Creek, Specification No. 93-44.
DISCUSSION:
On June 22, 1978 the Council approved a Master Agreement between the City and State for the
expenditure of Federal funds on approved city projects.
Currently, the City has been allocated Federal Highway Funds, specifically Highway Bridge Replacement
and Rehabilitation (HBRR) Funds for the preliminary environmental and design work for the Santa Rosa
Street Bridge Replacement Project.
This program supplement is the documentation required by the Federal Highway Administration. It must
be approved by Council resolution in order to encumber the Federal funds and cause such supplement to
be a part of the master agreement. It designates the Federal HBRR funds that have been allocated for the
project and the.matching funds to be provided by the City. The City can then proceed to bill the State
for costs incurred for preliminary design.
FISCAL DIPACT:
Program Supplement No. 014 designates an estimated project preliminary design cost of$ 35,000 of which
$ 28,000 is Federal participation and $ 7,000 is City matching funds.
A project budget of $35,000 is included in the 1993-'95 Financial Plan (see pages E-6,E-10, and E-17).
ATI'ACEUKENT:
Draft Resolution
Program Supplement No. 014 for Signature
v�a.ar
C3 -
RESOLUTION NO. (1995 SERIFS)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
APPROVING PROGRAM SUPPLEMENT NO. 014 TO THE LOCAL AGENCY -
STATE AGREEMENT FOR FEDERAL-AID PROJECTS .
NO. 05-5016 FOR THE BRIDGE REPLACEMENT PROJECT-
SANTA ROSA STREET AT SAN LUIS OBISPO CREEK
SPECIFICATION NO. 93-44
WHEREAS, the City and the State have entered into Master Agreement No. 05-5016
for Federal-Aid Projects; and
WHEREAS, Program Supplement No. 014 to the Master Agreement designates the
Federal Funds requested and the matching funds to be provided by the City for Preliminary
Engineering for the Bridge Replacement Project, Santa Rosa Street at San Luis Obispo Creek;
and
WHEREAS, the City is eligible to receive Federal Bridge Replacement and
Rehabilitation Funds (HBRR) for this project;
NOW THEREFORE BE IT RESOLVED, that the City Council of the City of San Luis
Obispo, California hereby:
1. Approves Exhibit A attached, entitled "Program Supplement No. 014 to Local Agency -
State Agreement for Federal-Aid Projects No. 05-5016," and the Mayor is authorized
to execute the same.
2. Directs the City Clerk to transmit the two (2) originals, attaching to each a copy of the
authorizing resolution to:
W. F. Tyler
Local Assistance Engineer
California Department of Transportation
P.O. Box 8114
San Luis Obispo, CA 93403-8114
1'-3-oZ
Resolution No. (1995 Series)
Page Two.
Upon motion of seconded by
and on the following roll call vote:
AYES:
NOES:
ABSENT:
the foregoing resolution was adopted this day of 1995.
MAYOR
ALLEN SETTLE
ATTEST:
CITY CLERK
DIANE GLADWELL
APPROVED AS TO FORM:
X&Y R SE
63-3
Program Supplement No. 014
EXHIBIT A
c3-44
PROGRAM SUPPLEMENT NO. 014 Location: 05-SLO--SLO
to 1 Project Nu ir: BRLN-5016 (002)
LOCAL AGENCY-STATE jREEMENT E.A. Nu, dr: 2 -140984
FOR FEDERAL-AID PROJECTS 110. 05-5016 05'
This Program Supplement is hereby incorporated into the Local Agency-State
Agreement for Federal Aid which was entered into between the Local Ager
and the State on 06/22/78 and is subject to all the terms and conditio.
thereof. This Program Supplement is adopted in accordance with Paragraph 2
of Article II of the aforementioned Master Agreement under authority of
Resolution No. approved by the Local Agency on
(See copy attached) .
The Local Agency further stipulates that as a condition to payment of funds
obligated to this project, it accepts and will comply with the covenants or
remarks setforth on the following pages.
PROJECT TERMINI:
Santa Rosa St @ San Luis Obispo Cr. Br. 149C-368
TYPE OF WORK: Replace Bridge and Approaches LENGTH: 0 . 1 (MILES)
ROJECT CLASSIFICATION OR PRASE(S) OF WORK
[X] Preliminary Engineering [ ] Right-of-Way [ )
[ ] Construction Engineering [ J Construction
Estimated Cost Federal Funds I Matching Funds
$ 35000 lis $ 2a000lS Local 70001 $ OTHER 0
1S OTHER o
CITY. OF SAN LUIS OBISPO STATE OF CALIFORNIA
Department of Transportation
By By
Mayor Allen Settle DISTRICT LOCAL
STREET AND ROADS ENGINEER
Date Date
Attest
Title
I hereby Certify upon my personal knowledge that budgeted funds are avallable for this encumbrance:
Accounting Offi , /, Date e�3 7 $ 28000. 00
Chapter Statutes I Item U I y Program 19CI Fund Source I AMOUNT
139 1994 2660-10.1-890 94-95 20.30.010.300 C 224060 892-F 28000.00
Page .1 of-2
Y
x'-.2
05-SLO--SLO DATE: 01/23/95
BRLN-5016 (002)
SPECIAL COVENANTS OR REMARKS
1. The Local Agency will advertise, award, ' and administer this
project and will obtain the State's -concurrence prior to either
award or rejection of the contract.
2. The Local Agency agrees the payment of Federal funds will be
limited to the amounts approved by the Federal Highway
Administration in the Federal-Aid Project Agreement (PR-2) /Detail
Estimate, or its modification (PR-2A) or the FNM-76, and accepts
any increases in Local Agency Funds as shown on the Finance or
Bid Letter or its modification as prepared by the Division of
Local Streets and Roads.
• 3 . This -Program Supplement will be revised at a later date to
include other phases of work.
4 . In executing this Program Supplemental Agreement, Local
Agency hereby reaffirms the "Nondiscrimination Assurances"
contained in the aforementioned Master Agreement for
Federal-Aid Program.
5. Whenever the local agency uses a consultant on a cost plus basis,
the local agency is required to submit a post audit report cover-
ina the allowability of cost payments for each individual consul-
tant or sub-contractor incurring over $25, 000 on the project.
The audit report must state the applicable cost principles utili-
zed by the auditor in determining allowable costs as referenced in
CFR 49, part 18, Subpart C - 22, Allowable Costs.
Page 2 of 2
4
PROGRAM SUPPLEMENT NO. 014I Location: 05-SLO--SLO
to Project Nur r: BRLN-5016 (002)
LOCAL AGENCY-STATE _-.REEMENT E.A. NuzL .r: 20-140984
FOR FEDERAL-AID PROJECTS NO. 05-5016 05'
This Program Supplement is hereby incorporated into the Local Agency-State
Agreement for Federal Aid which was entered into between the Local Agenr
and the State on 06/22/78 and is subject to all the terms and conditiol.
thereof. This Program Supplement is adopted in accordance with Paragraph 2
of Article II of the aforementioned Master Agreement under authority of
Resolution No. , approved by the Local Agency on
(See copy attached).
The Local Agency further stipulates that as a condition to payment of funds
obligated to this project, it accepts and will comply with the covenants or
remarks setforth on the following pages.
PROJECT TERMINI:
Santa Rosa St @ San Luis Obispo Cr. Br. 149C-368
TYPE OF WORK: Replace Bridge and Approaches LENGTH: 0 . 1 (MILES)
ROJECT CLASSIFICATION OR PHASE(S) OF WORK
[X] Preliminary Engineering [ ] . Right-of-Way- [ ]
[ ] Construction Engineering [ ] Construction
Estimated Cost Federal Funds Matching Funds
Local OTHER OTHER
$ 35000 118 $ 28000 $ 70001 $ 0 $ 0
1 $ 01
CITY OF SAN LUIS OBISPO STATE OF CALIFORNIA
Department of Transportation
By By
Mayor Allen Settle DISTRICT LOCAL
STREET AND ROADS ENGINEER
-1 Date Date
Attest
Title
I hereby Certify upon my personal knowleoge that budgeted funds are available for this encumbrance:
R.
Accounting Offi &Lfflv rr Date e2 3 1 $ 28000. 00
Chapter Statutes I Item U, T Program 1BC1 Fund Source AMOUNT
139 1994 2660-101-890 94-95 20.30.010.300 C . 224060 892-F 28000.00
Page 1 of 2
��-7
05-SLO--SLO DATE: 01/23/95
RRLN-5016(002)
SPECIAL COVENANTS OR REMARKS
1. The Local Agency will advertise, award, and administer this
project and will obtain the State's concurrence prior to either
award or rejection of the contract.
2 . The Local Agency agrees the payment of Federal funds will be
limited to the amounts approved by the Federal Highway
Administration in the Federal-Aid Project Agreement (PR-2) /Detail
Estimate, or its modification (PR-2A) or the FNM-76, and accepts
any increases in Local Agency Funds as shown on the Finance or
Bid Letter or its modification as prepared by the Division of
Local Streets and Roads.
• - 3 . This Program Supplement- will be revised at a later date to
include other phases of work.
4 . In executing this Program Supplemental Agreement, Local
Agency hereby reaffirms the "Nondiscrimination Assurances"
contained in the aforementioned Master Agreement for
Federal-Aid Program.
5. Whenever the local agency uses a consultant on a cost plus basis,
the local agency is required to submit a post audit report cover-
ing the allowability of cost payments for each individual consul-
tant or sub-contractor incurring over $25, 000 on the project.
The audit report must state the applicable cost principles utili-
zed by the auditor in determining allowable costs as referenced in
CFR 49, part- 18 , Subpart C - 22, Allowable Costs.
Page 2 of 2
4
�-3-8'