STATE OF CALIFORNIA

CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY

STATE WATER RESOURCES CONTROL BOARD
DIVISION OF WATER RIGHTS

RIGHT TO DIVERT AND USE WATER

APPLICATION 30497B02

PERMIT 20905B

Right Holder:

LICENSE 13868B

Clint Eastwood and Margaret Eastwood Trust

7145 Carmel Valley Road
Carmel, CA 93923

The State Water Resources Control Board (State Water Board) authorizes the diversion and use of water by the
right holder in accordance with the limitations and conditions herein SUBJECT TO PRIOR RIGHTS. The priority
of this right dates from December 4, 1995. This right is issued in accordance with the State Water Board
delegation of authority to the Deputy Director for Water Rights (Resolution 2012-0029) and the Deputy Director for
Water Rights redelegation of authority dated July 6, 2012. This right and License 13868A jointly supersede any
previously issued right on Application 30497B. The right holder has made proof, to the satisfaction of the State
Water Board, of the quantities of water put to beneficial use during the authorized development schedule.
Right holder is hereby granted a right to divert and use water as follows:
1.

Source of water:
tributary to:

Carmel River (Subterranean Stream)

Pacific Ocean

within the County of Monterey.

2.

Location of point of diversion

By California Coordinate
System of 1983 in Zone 4
Eastwood/Odello Well 2
North 2,090,640 feet and
East 5,706,710 feet
3. Purpose of use

40-acre subdivision of
public land survey or
projection thereof

Section
(Projected)*

Township

Range

Base and
Meridian

SE of SE

13*

16S

1W

MD

4. Place of use
40-acre subdivision of
public land survey or
projection thereof

Fish and Wildlife

Preservation and
Enhancement

Section
(Projected)*

Township

Range

Base and
Meridian

Acres

The Carmel River between the point located at North 2,090,900 feet and East
5,706,860 feet by California Coordinate System 1983, Zone 4, being within SE
of SE of projected Section 13, T16S, R1W, MDB&M (upstream limit) and the
confluence of the Carmel River and the Pacific Ocean at North 2,091,297 feet and
East 5,701,601 feet, being within SW of SE of projected Section 14, T16S,
R1W, MDB&M (downstream limit).

The place of use is shown on map dated June 19, 2013 on file with the State Water Board.

Application 30497B02
Page 2 of 6

Permit 20905B

License 13868B

5.

The water appropriated under this right shall be limited to the quantity which can be beneficially used and
shall not exceed 0.08 cubic foot per second to be diverted from January 1 to December 31 of each
year. The maximum amount diverted under this license shall not exceed 46.2 acre-feet per year.
(0000005A)

6.

If the claimed existing prior right for the original place of use for Permit 20905 (the Eastwood/Odello
property) is quantified at some later date as a result of an adjudication or other legally binding proceeding,
the total quantity of water diverted (including any collection to storage), the rate of diversion, and the
amount beneficially used under this right shall be reduced by the respective amounts recognized under
the quantified existing prior right during the season specified in this water right. No water shall be
diverted to the original place of use for Permit 20905 (the Eastwood/Odello property) during the season
authorized by this right, whenever the amounts diverted can be covered by the quantified existing prior
right.
The holder of this right shall forfeit the right if he/she transfers all or any part of the claimed existing right
for the place of use covered by this right, inclusive of the original place of use for Permit 20905 (the
Eastwood/Odello property), to another place of use without the prior approval of the State Water Board.
The holder of this right shall divert water under the claimed existing right only in accordance with the law.
(0000021A)

7.

To the extent that the right holder claims riparian, overlying, pre-1914 appropriative or other rights to use
the water covered by this right, the right holder shall not be entitled to water in excess of the amount
authorized in this right.
Any priority obtained for a right by virtue of condition 10 of State Water Board Decision 1632 shall be void
if the right holder and/or others divert more water under this right and claimed existing rights than is
authorized on the face of this right; however, the priority shall not be voided for the diversion of de
minimis amounts which can reasonably be attributed to operational uncertainties.
Insofar as the right holder complies with this condition, this right is senior to any right issued pursuant to
Application 27614.
(0000112)

8.

For any change petition filed for this right, in case the State Water Board requires notice of the petition,
the right holder shall (1) cause notice of the petition to be given to the protestants to Application 30497
and (2) request that the State Water Board not take final action upon the petition within 180 days of the
date of the notice.
(9999999)

Application 30497B02
Page 3 of 6

Permit 20905B

License 13868B

THIS RIGHT IS ALSO SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

A.

Right holder is on notice that: (1) failure to timely commence or complete construction work or beneficial
use of water with due diligence, (2) cessation or partial cessation of beneficial use of water, or (3) failure
to observe any of the terms or conditions of this right, may be cause for the State Water Board to consider
revocation (including partial revocation) of this right. (Cal. Code Regs., tit. 23, 850.)
(0000016)

B.

Right holder is on notice that when the State Water Board determines that any person is violating, or
threatening to violate, any term or condition of a right, the State Water Board may issue an order to that
person to cease and desist from that violation. (Wat. Code, 1831.)
(0000017)

C.

Right holder is not authorized to make any modifications to the location of diversion facilities, place of use
or purposes of use, or make other changes to the project that do not conform with the terms and
conditions of this right, prior to submitting a change petition and obtaining approval of the State Water
Board.
(0000018)

D.

Right holder shall maintain records of the amount of water diverted and used under this right to enable the
State Water Board to determine the amount of water that has been applied to beneficial use.
(0000015)

E.

Right holder shall promptly submit any reports, data, or other information that may reasonably be required
by the State Water Board, including but not limited to documentation of water diversion and use under this
right and documentation of compliance with the terms and conditions of this right.
(0000010)

F.

No water shall be diverted under this right unless right holder is operating in accordance with a
compliance plan, satisfactory to the Deputy Director for Water Rights. Said compliance plan shall specify
how right holder will comply with the terms and conditions of this right. Right holder shall comply with all
reporting requirements in accordance with the schedule contained in the compliance plan.
(0000070)

G.

Right holder shall grant, or secure authorization through right holders right of access to property owned
by another party, the staff of the State Water Board, and any other authorized representatives of the State
Water Board the following:
1. Entry upon property where water is being diverted, stored or used under a right issued by the State
Water Board or where monitoring, samples and/or records must be collected under the conditions of
this right;
2. Access to copy any records at reasonable times that are kept under the terms and conditions of a
right or other order issued by State Water Board;
3. Access to inspect at reasonable times any project covered by a right issued by the State Water
Board, equipment (including monitoring and control equipment), practices, or operations regulated by
or required under this right; and,
4. Access to photograph, sample, measure, and monitor at reasonable times for the purpose of ensuring
compliance with a right or other order issued by State Water Board, or as otherwise authorized by the
Water Code.
(0000011)

Application 30497B02
Page 4 of 6

Permit 20905B

License 13868B

H.

This right shall not be construed as conferring right of access to any lands or facilities not owned by right
holder.
(0000022)

I.

All rights are issued subject to available flows. Inasmuch as the source contains treated wastewater,
imported water from another stream system, or return flow from other projects, there is no guarantee that
such supply will continue.
(0000025)

J.

This right does not authorize diversion of water dedicated by other right holders under a senior right for
purposes of preserving or enhancing wetlands, habitat, fish and wildlife resources, or recreation in, or on,
the water. (Wat. Code, 1707.) The Division of Water Rights maintains information about these
dedications. It is right holders responsibility to be aware of any dedications that may preclude diversion
under this right.
(0000212)

K.

No water shall be diverted or used under this right, and no construction related to such diversion shall
commence, unless right holder has obtained and is in compliance with all necessary permits or other
approvals required by other agencies. If an amended right is issued, no new facilities shall be utilized, nor
shall the amount of water diverted or used increase beyond the maximum amount diverted or used during
the previously authorized development schedule, unless right holder has obtained and is in compliance
with all necessary requirements, including but not limited to the permits and approvals listed in this term.
Within 90 days of the issuance of this right or any subsequent amendment, right holder shall prepare and
submit to the Division of Water Rights a list of, or provide information that shows proof of attempts to
solicit information regarding the need for, permits or approvals that may be required for the project. At a
minimum, right holder shall provide a list or other information pertaining to whether any of the following
permits or approvals are required: (1) lake or streambed alteration agreement with the Department of Fish
and Wildlife (Fish & G. Code, 1600 et seq.); (2) Department of Water Resources, Division of Safety of
Dams approval (Wat. Code, 6002); (3) Regional Water Quality Control Board Waste Discharge
Requirements (Wat. Code, 13260 et seq.); (4) U.S. Army Corps of Engineers Clean Water Act section
404 permit (33 U.S.C. 1344); and (5) local grading permits.
Right holder shall, within 30 days of issuance of any permits, approvals or waivers, transmit copies to the
Division of Water Rights.
(0000203)

L.

Urban water suppliers must comply with the Urban Water Management Planning Act (Wat. Code, 10610
et seq.). An urban water supplier means a supplier, either publicly or privately owned, providing water
for municipal purposes either directly or indirectly to more than 3,000 customers or supplying more than
3,000 acre-feet of water annually.
Agricultural water users and suppliers must comply with the Agricultural Water Management Planning Act
(Act) (Water Code, 10800 et seq.). Agricultural water users applying for a permit from the State Water
Board are required to develop and implement water conservation plans in accordance with the Act. An
agricultural water supplier means a supplier, either publicly or privately owned, providing water to
10,000 or more irrigated acres, excluding recycled water. An agricultural water supplier includes a
supplier or contractor for water, regardless of the basis of right, which distributes or sells water for
ultimate resale to customers.
(0000029D)

Application 30497B02
Page 5 of 6

M.

Permit 20905B

License 13868B

Pursuant to Water Code sections 100 and 275 and the common law public trust doctrine, all rights and
privileges under this right, including method of diversion, method of use, and quantity of water diverted,
are subject to the continuing authority of the State Water Board in accordance with law and in the interest
of the public welfare to protect public trust uses and to prevent waste, unreasonable use, unreasonable
method of use, or unreasonable method of diversion of said water.
The continuing authority of the State Water Board may be exercised by imposing specific requirements
over and above those contained in this right with a view to eliminating waste of water and to meeting the
reasonable water requirements of right holder without unreasonable draft on the source. Right holder
may be required to implement a water conservation plan, features of which may include but not
necessarily be limited to (1) reusing or reclaiming the water allocated; (2) using water reclaimed by
another entity instead of all or part of the water allocated; (3) restricting diversions so as to eliminate
agricultural tailwater or to reduce return flow; (4) suppressing evaporation losses from water surfaces;
(5) controlling phreatophytic growth; and (6) installing, maintaining, and operating efficient water
measuring devices to assure compliance with the quantity limitations of this right and to determine
accurately water use as against reasonable water requirements for the authorized project. No action will
be taken pursuant to this paragraph unless the State Water Board determines, after notice to affected
parties and opportunity for hearing, that such specific requirements are physically and financially feasible
and are appropriate to the particular situation.
The continuing authority of the State Water Board also may be exercised by imposing further limitations
on the diversion and use of water by right holder in order to protect public trust uses. No action will be
taken pursuant to this paragraph unless the State Water Board determines, after notice to affected parties
and opportunity for hearing, that such action is consistent with California Constitution, article X, section 2;
is consistent with the public interest; and is necessary to preserve or restore the uses protected by the
public trust.
(0000012)

N.

The quantity of water diverted under this right is subject to modification by the State Water Board if, after
notice to right holder and an opportunity for hearing, the State Water Board finds that such modification is
necessary to meet water quality objectives in water quality control plans which have been or hereafter
may be established or modified pursuant to Division 7 of the Water Code. No action will be taken
pursuant to this paragraph unless the State Water Board finds that (1) adequate waste discharge
requirements have been prescribed and are in effect with respect to all waste discharges which have any
substantial effect upon water quality in the area involved, and (2) the water quality objectives cannot be
achieved solely through the control of waste discharges.
(0000013)

O.

This right does not authorize any act which results in the taking of a candidate, threatened or endangered
species or any act which is now prohibited, or becomes prohibited in the future, under either the California
Endangered Species Act (Fish & G. Code, 2050 et seq.) or the federal Endangered Species Act (16
U.S.C. 1531 et seq.). If a "take" will result from any act authorized under this right, right holder shall
obtain any required authorization for an incidental take prior to construction or operation of the project.
Right holder shall be responsible for meeting all requirements of the applicable Endangered Species Act
for the project authorized under this right.
(0000014)

Application 30497B02
Page 6 of 6

Permit 20905B

License 13868B

This right is issued and right holder takes it subject to the following provisions of the Water Code:
Section 1627. A license shall be effective for such time as the water actually appropriated under it is used for a
useful and beneficial purpose in conformity with this division (of the Water Code) but no longer.
Section 1629. Every licensee, if he accepts a license, does so under the conditions precedent that no value
whatsoever in excess of the actual amount paid to the State therefore shall at any time be assigned to or claimed
for any license granted or issued under the provisions of this division (of the Water Code), or for any rights
granted or acquired under the provisions of this division (of the Water Code), in respect to the regulation by any
competent public authority of the services or the price of the services to be rendered by any licensee or by the
holder of any rights granted or acquired under the provisions of this division (of the Water Code) or in respect to
any valuation for purposes of sale to or purchase, whether through condemnation proceedings or otherwise, by
the State or any city, city and county, municipal water district, irrigation district, lighting district, or any political
subdivision of the State, of the rights and property of any licensee, or the possessor of any rights granted, issued,
or acquired under the provisions of this division (of the Water Code).
Section 1630. At any time after the expiration of twenty years after the granting of a license, the State or any city,
city and county, municipal water district, irrigation district, lighting district, or any political subdivision of the State
shall have the right to purchase the works and property occupied and used under the license and the works built
or constructed for the enjoyment of the rights granted under the license.
Section 1631. In the event that the State, or any city, city and county, municipal water district, irrigation district,
lighting district, or political subdivision of the State so desiring to purchase and the owner of the works and
property cannot agree upon the purchase price, the price shall be determined in such manner as is now or may
hereafter be provided by law for determining the value of property taken in eminent domain proceedings.

STATE WATER RESOURCES CONTROL BOARD

ORIGINAL SIGNED BY:

Barbara Evoy, Deputy Director

Division of Water Rights
Dated: JUL 03 2015

STATE OF CALIFORNIA
CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY
STATE WATER RESOURCES CONTROL BOARD

DIVISION OF WATER RIGHTS

DIVISION DECISION 2015-0001

In the Matter of License 13868 (Application 30497B)
Clint Eastwood and Margaret Eastwood Trust

DECISION CANCELING PROTESTS, REVOKING A WATER RIGHT,

AND ISSUING WATER RIGHTS
SOURCE:

Carmel River (Subterranean Stream)

COUNTY:

Monterey

BY THE DEPUTY DIRECTOR FOR WATER RIGHTS:

1.0

INTRODUCTION

This decision of the State Water Resources Control Board (State Water Board), Division of Water Rights
(Division) approves a Petition for Change from Clint Eastwood and Margaret Eastwood Trust (Eastwood
Trust) to issue separate licenses on License 13868 (Application 30497B) and make changes to the Point
of Diversion, Purpose of Use, and Place of Use for the two new water rights (Licenses 13868A and
13868B).
Water rights on the Carmel River have been the subject of multiple State Water Board hearings, resulting
in a State Water Board Decision and a number of State Water Board Orders, which are described below,
in sections 1.2 1.5.
1.1

Water Right License 13868 (Application 30497B)

In 1995, John and Michael Odello (Odello Brothers) sold the property known as the Coast Ranch, where
farming had occurred for decades, to the Eastwood Trust. On October 23, 1995, the Eastwood Trust filed
Application 30497 with the Division. On March 5, 1997, Permit 20905 was issued for Application 30497.
On July 24, 2001, Permit 20905 was split by revoking Permit 20905 and issuing Permit 20905A
(Application 30497A) to the Big Sur Land Trust and Permit 20905B (Application 30497B) to the Eastwood
Trust. On November 1, 2012, License 13868 was issued for Permit 20905B.
License 13868 authorizes the Eastwood Trust to divert up to 0.45 cubic foot per second (cfs) of water
from the subterranean stream of the Carmel River, from January 1 through December 31, for a maximum
of 131.8 acre-feet per year (afy) of water. Water is diverted under License 13868 from two wells, and is
authorized to be used for the purpose of irrigation in a place of use consisting of 99 acres of land located
within the Carmel River watershed on a property known as the Eastwood/Odello Ranch, part of the
original Coast Ranch. Of the two wells, the Eastwood/Odello No. 1 well was destroyed in a flood in
January 1998 and has not been restored, thus all diversion of water under License 13868 occurs from the
Eastwood/Odello No. 2 well.

Applications 30497B et al.

Page 2 of 16

1.2

Permit 20905

Licenses 13868 et al.

State Water Board Decision 1632 and Claims of Existing Rights

On July 6, 1995, the State Water Board issued Decision 1632 that approved Application 27614 of the
Monterey Peninsula Water Management District (District).
According to the State Water Boards hearing records for Decision 1632, the Odello Brothers protested
Application 27614 because of potential injury to their claimed riparian right, pre-1914 appropriative right,
and overlying groundwater right for the diversion of water to irrigate a place of use of 134 acres. In
support of their protest, the Odello Brothers reported a diversion of up to 540 afy under their claim of
riparian right. The administrative record for Decision 1632 did not provide sufficient information for the
State Water Board to support the pre-1914 appropriative claim, therefore that portion of the protest was
dismissed. The portion of the protest based on a claim of overlying groundwater right was also dismissed
as a result of a determination that the water flowing through the Carmel River alluvium constitutes a
subterranean stream and not percolating groundwater.
Decision 1632 recognized the existing applications, or potential applications, of certain diverters in the
Carmel River, including the Odello Brothers. This recognition was provided to allow for the opportunity to
acquire post-1914 water right applications with a priority senior to any right issued pursuant to Application
27614 for certain diverters using established quantities of water who may have had questionable rights to
the use of water or who wished to make a use of water which could not be provided under existing water
rights. Decision 1632 granted the Odello Brothers a priority senior to any right issued pursuant to
Application 27614, provided that an application was filed by December 29, 1995. Consistent with this
determination, for the Odello Brothers, Decision 1632 reserved 195.9 afy for future appropriation. Before
the December 29, 1995 deadline, the Odello Brothers sold the Coast Ranch to the Eastwood Trust. The
Eastwood Trust subsequently filed Application 30497 on October 23, 1995. The reversal of priority
between any rights issued pursuant to Applications 30497 and 27614 is subject to the regulatory
requirement that a person who claims an existing right to the use of water shall be granted a permit or
license to appropriate no more water than is needed over that which is available under the existing right
to meet the beneficial use requirements of the project. (Cal. Code Regs., tit. 23, 731(a).)
On June 30, 2010, the Eastwood Trust submitted a Statement of Water Diversion and Use (Statement).
The Statement, recorded as S021602 in the State Water Boards records, claims a riparian and pre-1914
appropriative right to water diverted from one of the points of diversion included in License 13868 (Well
No. 2) and used for irrigation of a place of use that includes portions of the place of use for License
13868.
1.3

Application 27614 and Related Rights

As a result of Decision 1632, Permit 20808 was issued for Application 27614 on October 25, 1995,
authorizing the District to divert up to 24,000 afy of water by storage at New Los Padres Reservoir and
42 cfs of water by direct diversion from numerous extraction wells along the Carmel River from December
1 of each year to May 31 of the succeeding year. Permit 20808 was amended on January 6, 1999.
On September 12, 2003, the District filed a petition to amend Permit 20808, requesting changes to points
of diversion, place of storage, season of diversion and various permit terms, including issuance of
separate permits. The petition was submitted to facilitate the Aquifer Storage and Recovery (ASR)
project in the Seaside Groundwater Basin, a joint project between the District and the California American
Water Company (Cal-Am). As part of the operations agreement for the ASR, the District and Cal-Am
agreed to hold Permit 20208A jointly. On November 30, 2007, the State Water Board issued Order WR2007-0042-DWR approving the requested changes, thereby revoking Permit 20808 and issuing Permits
20808A and 20808B.

Applications 30497B et al.

Page 3 of 16

Permit 20905

Licenses 13868 et al.

On July 3, 2008, the District petitioned the State Water Board to split Permit 20808B and implement other
changes in order to proceed with phase two of the ASR. By Order dated November 30, 2011, the State
Water Board approved the requested changes, thereby revoking Permit 20808B and issuing new Permit
20808B and Permit 20808C, with Permit 20808C held jointly by the District and Cal-Am.
In addition to its water rights stemming from Decision 1632, Cal-Am was issued Permit 21330
(Application 30215A) on October 4, 2013 for the diversion of up to 1,488 afy from the Carmel River at San
Clemente Dam and from extraction wells in the Carmel River subterranean stream, during the season of
December 1 of each year to May 31 of the succeeding year. For the protection of fisheries, wildlife and
other instream uses in the Carmel River, Term 14 of Permit 21330 provides that diversion under the
permit is subject to specific minimum mean daily instream flow requirements as referenced to the Carmel
River Highway 1 bridge stream gage. Cal-Am also holds pre-1914 claims of right (1,137 afy), claims of
riparian right (60 afy) and License 11866 (Application 11674A) for the storage of up to 3,030 afy at
Los Padres Reservoir.
1.4

Water Rights Order WR 95-10

The State Water Board issued Order WR 95-10 on July 6, 1995, arising out of complaints filed against
Cal-Am alleging that Cal-Am did not have the legal right to divert water from the Carmel River and that its
diversions were adversely affecting the rivers public trust resources. The State Water Board concluded
that Cal-Am did not have the legal right for about 10,730 afy of the water it was diverting from the Carmel
River (about 69 percent of the water being supplied to Cal-Am water users), and that Cal-Ams diversions
were having an adverse effect on public trust resources. Among other things, Order WR 95-10 directed
Cal-Am to: 1) diligently proceed to obtain valid bases of right for its diversion and use of water from the
Carmel River; and, 2) minimize harm to public trust resources by reducing the quantities diverted from the
Carmel River and obtain alternative sources of supply.
1.5

Water Rights Order WR 2009-0060

On October 20, 2009, the State Water Board noted that Cal-Ams current diversions from the Carmel
River exceeded its appropriative water rights by approximately 10,730 afy. By Order WR 2009-0060 (the
Cal-Am CDO), the State Water Board ordered Cal-Am to cease and desist from its unlawful diversions by
December 31, 2016, and be subject to a schedule and specific conditions. In particular, Condition 2 of
the Cal-Am CDO provides:
Cal-Am shall not divert water from the Carmel River for new service connections or for any
increased use of water at any existing service addresses resulting from a change in zoning or
use. Cal-Am may supply water from the river for new service connections or for any increased
use at existing service addresses resulting from a change in zoning or use after
October 20, 2009, provided that any such service had obtained all necessary written approvals
required for project construction and connection to Cal-Ams water system prior to that date.
In addition, the Cal-Am CDO provides in Ordering Condition 3(a)(1) that, starting on October 1, 2009,
Cal-Am shall not divert more water from the river than the base of 10,978 afy and shall reduce diversions
by 5 percent or 549 afy. Ordering Condition 3(a)(5) further provides that:
1

Small projects. Water produced from new sources developed pursuant to Condition [5] of this
order shall be subtracted from the base.

Condition 3(a)(5) actually refers to Condition 4. However, this reference is a typographical error, and the correct
reference is to Condition 5.

Applications 30497B et al.

Page 4 of 16

Permit 20905

Licenses 13868 et al.

Condition 5 provides that:

Cal-Am shall implement one or more small projects that, when taken together, total not less than
500 afa to reduce unlawful diversions from the river. Within 90 days of entry of this order, Cal-Am
shall identify to the Deputy Director for Water Rights the projects that it will implement and shall
implement the projects within 24 months of entry of this order. To the maximum practicable
extent, small projects shall be operated to reduce illegal diversions from the river during the
months when surface flow in the river begins to go dry and through the months when surface flow
in the river disappears below river mile 6.5.

2.0

2013 PETITION FOR CHANGE

On June 21, 2013, the Eastwood Trust filed a Petition for Change for License 13868 with the State Water
Board, requesting that License 13868 be revoked and split into two new licenses (Licenses 13868A and
13868B), and requesting changes to the points of diversion, purpose of use, and place of use. The
purpose of these changes, as indicated by the June 21, 2013 Petition for Change, was to:
1) provide potable water for municipal purposes to existing legal lots of record within the parts of
Cal-Ams service area that are within the Carmel River watershed or the City of Carmel-by theSea, through new connections or increased uses of water at existing service addresses;
2) protect and enhance the Carmel River and associated environment by dedicating a portion of the
existing water right to instream uses and donating the property associated with the irrigated place
of use to a non-profit entity or government agency to restore it to natural floodplain habitat; and,
3) provide a supplemental water supply to Cal-Am on an interim basis, to help Cal-Am meet its
obligations under State Water Board Order WR 95-10.
The June 21, 2013 Petition for Change was amended by letter dated October 2, 2013.
The amended 2013 petition proposed that License 13868A include the existing components of License
13868 with a reduction in the rate of direct diversion and amount diverted per year, the addition of three
points of diversion, the addition of municipal as a purpose of use, and the addition of portions of the water
service areas of Cal-Am and the City of Carmel-By-The-Sea to the place of use. Diversion of water for
the new municipal purpose of use would occur exclusively from the new points of diversion, which consist
2
of three existing Cal-Am wells (Rancho Caada No. 2, Cypress No. 2 and Pearce), and would be
distributed through Cal-Ams existing conveyance system to water users on existing lots of record within
the additional place of use. The reduction in the rate of direct diversion and amount diverted per year
was based on calculations of the amount of water consumptively used as a result of beneficial use
consistent with the terms of License 13868.
Proposed License 13868B, as requested by the amended 2013 petition, would dedicate water to instream
use in the Carmel River. The license would not have any active diversion points. The proposed place of
use would be the Carmel River from a point on the Carmel River corresponding with Eastwood/Odello
Well No. 2 for License 13868 to a point on the Carmel River corresponding with the confluence of the
Carmel River and the Pacific Ocean. The proposed purpose of use would be Preservation and
Enhancement of Fish and Wildlife and of Riparian Vegetation. The rate of direct diversion and amount
diverted per year was based on calculations of the difference between the face value, maximum rate of
direct diversion and maximum amount diverted per year, and the amount of water consumptively used as
a result of beneficial use consistent with the terms of License 13868.

Although Caada No. 2 was identified in the petition, the correct name for the well is Rancho Caada No. 2.

Applications 30497B et al.

Page 5 of 16

Permit 20905

Licenses 13868 et al.

A summary of each proposed license under the amended 2013 petition follows.
License 13868A
1) Ownership: The Eastwood Trust would form a limited liability company (LLC) for the purposes of
3
holding and administering the license and entering into subscription agreements
2) Points of Diversion: two irrigation wells from License 13868 and the addition of three municipal
wells
3) Purpose of Use: irrigation, municipal
4) Place of Use: In addition to the 99-acre place of use under License 13868, License 13868A also
seeks to include 16,595 acres of additional Carmel River Watershed acreage within the Cal-Am
service area, and 526 acres within the City of Carmel
5) Rate of Diversion: Not to exceed 0.37 cfs
6) Diversion Amount: Not to exceed 85.6 afy
7) Diversion Season: January 1 through December 31
License 13868B
1) Ownership: No change.
2) Point of Diversion: one well from License 13868 (Eastwood/Odello No. 2 well)
3) Purpose of Use: Preservation and Enhancement of Fish and Wildlife and of Riparian Vegetation
4) Place of Use: The Carmel River from a point corresponding with Eastwood/Odello Well No. 2
(upper limit) to the confluence of the Carmel River and the Pacific Ocean (lower limit)
5) Rate of Use: Not to exceed 0.08 cfs
6) Use Amount: Not to exceed 46.2 afy
7) Season: January 1 to December 31
2.1

Summary of Protests

On December 31, 2013, the Division issued a public notice of the change petition in accordance with
Water Code sections 1300 et seq. Table 1 lists the protests that were received.
Table 1. Protests of the June 21, 2013 Petition for Change
Protestant
Basis of Protest

Date of Protest

Richard Morat

Public Trust

January 6, 2014

Roy Thomas

Public Trust

January 17, 2014

Carmel River Steelhead Association

Public Trust

January 29, 2014

National Marine Fisheries Service

Public Trust

January 30, 2014

California Department of Fish and Wildlife

Public Trust

January 30, 2014

On May 27, 2015, Alan Lilly (Agent for the Eastwood Trust) indicated that the Malpaso Water Company, LLC had
been formed for this purpose.

Applications 30497B et al.

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2.1.1

Permit 20905

Licenses 13868 et al.

Richard Morat

Richard Morat filed a protest based on the concern that the changes would have adverse environmental
impacts to the Carmel River and estuary. The concern included allegations that the use of water for
municipal instead of irrigation would reduce return flows, questions regarding the validity of the
quantification of water use under the existing license, allegations that pumping of Carmel River
subterranean flow only to return it to the surface flow may be detrimental to the Carmel River, and a
statement that no action should be taken until a comprehensive plan for recovery of the endangered
species is developed, adopted and implementation assured.
2.1.2

Roy Thomas

Roy Thomas filed a protest based on the concern that the change petition will affect flows in the Carmel
River downstream of the new points of diversion, thereby reducing public trust values of the Carmel River.
The protest also alleged that further diversions from the Carmel River will produce ever more serious
adverse environmental impacts.
2.1.3

Carmel River Steelhead Association

The Carmel River Steelhead Association (CRSA) filed a protest based on the concern that moving the
point of diversion upstream could have negative impacts on steelhead trout (Onchorynchus mykiss),
California red-legged frog (Rana draytonii), and riparian vegetation, and that approving the petition would
allow new hook-ups to the Cal-Am water system, contrary to State Water Board Orders WR 95-10 and
WR 2009-0060. CSRA additionally expresses concern regarding the calculation of the amount of water
used under the right, as it does not compare to the amount of water used by future vegetation on the
original place of use.
2.1.4

National Marine Fisheries Service

The National Marine Fisheries Service (NMFS) filed a protest on several grounds. The primary concern
was that proposed new points of diversion are within or near potential habitat for steelhead, and could
therefore expose the species and their habitat to potential impacts. These potential impacts, in turn,
increase the likelihood of take as defined under the Endangered Species Act. The protest also
expressed the concern that multiple diversions can cumulatively cause adverse impacts to listed
salmonids and that granting the petition in the context of other existing water right permits and licenses
and the water already being pumped at the three Cal-Am wells, poses a risk to flow-dependent habitats.
Finally, the protest raises concern about moving a point of diversion upstream when the river is fully
appropriated for most of the year.
2.1.5

California Department of Fish and Wildlife

The California Department of Fish and Wildlife (CDFW) filed a protest based on the concern that approval
of the petition may result in direct and cumulative adverse impacts to fish and wildlife resources of the
Carmel River. The protest also asserted that the proposed project violates the intent of State Water
Board Order 95-10 and WR 2009-0060 in that the project does not reduce the amount of water Cal-Am is
illegally diverting from the Carmel River, prior to using water for new service connections. CDFW also
expresses concern with the use of water on the irrigated place of use during restoration to natural habitat.
2.2

Field Investigation

Water Code section 1704.3 grants the Division of Water Rights the authority to issue a decision on minor
protested water right petitions after conducting a field investigation. A minor petition for change is any
petition which does not involve direct diversions in excess of three cfs or storage in excess of 200 afy.
(Wat. Code, 1704.4.)

Applications 30497B et al.

Page 7 of 16

Permit 20905

Licenses 13868 et al.

On March 10, 2014, the Division issued a Notice of Field Investigation for the 2013 petition to change
License 13868, to provide the Eastwood Trust and protestants an opportunity to resolve the outstanding
protests. The Notice indicated that the purpose of the investigation was to seek protest resolution and for
the parties to present information in support of their protest claims. A field investigation took place in the
offices of the Monterey Peninsula Water Management District at 5 Harris Ct, Monterey, CA on
April 2, 2014.
The results of the field investigation were considered as part of this decision, along with other information
in the petition record. A memorandum dated June 11, 2015 describing the field investigation is on file
with the Division.

3.0

2015 PETITION FOR CHANGE

On January 27, 2015, the Eastwood Trust filed a second Petition for Change for the project. The 2015
petition mirrored the amended 2013 petition, except that it requested an additional change in the points of
diversion for proposed License 13868A by adding a proposed Eastwood/Rancho Caada well to License
13868A. The proposed well would be located 86 feet from Cal-Ams existing Rancho Caada No. 2 well,
and is intended to be the primary point of diversion for municipal purposes. The second petition was
submitted in accordance with a protest-dismissal agreement with CDFW, and the additional point of
diversion is also a contingency of the later protest-dismissal agreement with NMFS.
The State Water Board will not ordinarily require that notice be given for a Petition for Change in cases
where the proposed change does not have the potential to impair the water supply of other legal users of
water or instream beneficial uses. (Cal. Code Regs., tit. 23, 795.) The second petition proposes the
installation of a new well in close proximity to one of the existing points of diversion proposed for addition
to License 13868A included in the notice for the amended 2013 petition. Because there are no known
legal users of water or tributary sources between the existing well and the new well, the second petition
does not have the potential to impair the water supply of other legal users of water as compared to the
amended 2013 petition. In addition, the change implements the environmentally superior alternative
identified in the draft Environmental Impact Report (EIR) for the petition, and stems from protest
resolution terms and negotiations with CDFW and NMFS. Therefore, the change requested by the
second petition does not have the potential to impair instream beneficial uses as compared to the 2013
petition. Therefore, the State Water Board did not require additional notice for the second petition.
Additionally, on May 22, 2015, the Eastwood Trust agreed to commit to use a minimum amount of water
diverted for municipal purposes under the split license to offset Cal-Ams unlawful diversions in the time
period following approval of the petition and any necessary approvals by the Monterrey Peninsula Water
Management District. Specifically, the Eastwood Trust agreed to use all municipal diversions to offset
Cal-Ams existing unlawful diversions in 2015, to use 50 af for this purpose in 2016 and to use 25 af for
this purpose in 2017.

4.0

CRITERIA FOR APPROVING THE PROPOSED CHANGE

The petitions submitted by the Eastwood Trust request that two separate licenses be issued for License
13868, and that the points of diversion, purpose of use, and place of use be changed for each of the two
separate licenses. In addition, for proposed License 13868B, the Eastwood Trust requests that the
changes be made for the purpose of preserving or enhancing wetlands habitat, fish and wildlife
resources, or recreation in, or on, the water.
California Code of Regulations, title 23, section 836 provides that a licensee may request issuance of
separate licenses when the place of use for a license is divided into two or more ownerships and each of
the owners succeeds to a separate interest in the license. Water Code section 1700 provides that a
licensee may change the point of diversion, place of use, or purpose of use from that specified in the

Applications 30497B et al.

Page 8 of 16

Permit 20905

Licenses 13868 et al.

license. Water Code section 1707 authorizes the use of the change petition provisions of Water Code
section 1700 et seq. to add the purposes of preserving or enhancing wetland habitat, fish and wildlife
resources, or recreation in, or on, the water.
In order to issue separate licenses, the existing license must be revoked. (Cal. Code Regs., tit. 23, 836,
subd. (a).) Before approving a petition submitted pursuant to Water Code section 1700, the State Water
Board must find that the proposed change will neither in effect initiate a new right nor injure any other
legal user of water. (Wat. Code, 1702; Cal. Code Regs., tit. 23, 791.) Under Water Code section
1707, the State Water Board must find that the proposed change will not increase the amount of water
the person is entitled to use, will not unreasonably affect any legal user of water, and otherwise meets the
requirements of the Water Code. Additionally, the State Water Board must analyze potential changes to
ensure that they comport with public interest and reasonableness requirements, and must consider
impacts to the public trust. (Cal. Const. Art. X, 2; National Audubon Society v. Superior Court (1983)
33 Cal.3d 419; U.S. v. State Water Resources Control Board (1986) 182 Cal.App.3d. 82.)
License 13868 was properly established with the State Water Board. Since the issuance of License
13868 on November 1, 2012, the Eastwood Trust has continued to beneficially use the water, according
to annual reports submitted by the Eastwood Trust to the State Water Board. License 13868 is a wraparound right, meaning that the Eastwood Trust claimed an existing right. (Cal. Code Regs., tit. 23,
731.) Here, the Eastwood Trust claimed both riparian and pre-1914 appropriative rights to serve the
place of use described in License 13868. The water right licenses issued by this Order limits the total
water diversion available to serve the place of use to the limits in the license, and requires that any
transfer of water rights be subject to State Water Board approval authority. This condition shall continue
to apply. This means that the amount of water available after the license split will be reduced if water is
diverted under the claimed prior rights for the Eastwood/Odello property (the original place of use of
Permit 20905).
The Eastwood Trust has indicated that future plans for the irrigated place of use for proposed License
13868A may include a reduction or cessation of irrigation as natural habitat is restored as part of the
Carmel River Floodplain Restoration and Environmental Enhancement (CRFREE) Project jointly
proposed by the Big Sur Land Trust and the County of Monterey. The project involves the planned
removal of portions of levees along the north and east portions of License 13868s place of use for
irrigation and construction of a causeway for Highway 1 along the west portion of License 13868s place
of use for irrigation. Because irrigation of the irrigated place of use for proposed License 13868A may be
required to establish native vegetation, the Eastwood Trust retained irrigation as a purpose of use and the
irrigated place of use in the water right. After construction of the project, the irrigated place of use will be
fallowed in order to allow for Carmel River flood flows to be redirected into this new floodplain to allow for
enhanced ecological function and improved flood protection.
Fallowing of land may result in some consumptive use of water despite the lack of active surface
irrigation, depending on the depth to the subterranean stream of the Carmel River underlying License
13868s place of use for irrigation, the types of vegetation established on the land, and other factors.
Consumptive use of water in this manner may need to be subtracted from any diversions or dedications
under the two new licenses and any claimed existing right. Conversely, increasing the floodplain surface
area and allowing the Carmel River to overtop its banks may also increase groundwater recharge due to
a number of factors, including slower flow rates that may increase the time for water to have the
opportunity to percolate into the underlying aquifer.
In order to understand the potential for the CRFREE Project to consumptively use the subterranean
streamflow of the Carmel River, the Eastwood Trust shall submit the proposed plan within 180 days of
issuance of License 13868A for restoration of the floodplain consistent with the CRFREE Project, and the
State Water Board shall retain the authority to reopen the licenses to condition them further, if necessary.

Applications 30497B et al.

Page 9 of 16

Permit 20905

Licenses 13868 et al.

Thus, as conditioned, the proposed change will not initiate a new right or expand an existing right.
4.1

No Injury or Unreasonable Affect to Any Other Legal Users of Water

To support a finding that the proposed change will not injure or unreasonably affect any other legal users
of water, the water subject to change or that may be dedicated for instream purposes must not exceed
4
the consumptive amount used in the past, thereby decreasing the amount of water that would have been
removed from the system absent the proposed change. Any water diverted but not consumptively used
will return to the source, either in the form of surface runoff or subsurface percolation, and will therefore
be available to other legal users of water.
The Eastwood Trust has provided documentation to quantify the amount of water that, as a proportion of
the total amount authorized for diversion under License 13868, is consumptively used when water is
applied in accordance with the terms and conditions of License 13868 (Table 2). The Eastwood Trust has
proposed to redirect the full amount of water consumptively used to serve municipal customers. The
Eastwood Trust has indicated that this transition from irrigation to municipal use will likely occur over a
few years, as customers for the municipal water are identified and the necessary approvals are obtained.
In the interim, irrigation of the current place of use for License 13868 will continue.
Table 2. License 13868 Estimated Long-term Mean Monthly Consumptive Use
Month
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Oct
Quantity
2.8
2.9
4.0
6.4
9.4
11.0 11.1 10.8
9.5
8.4
(af)

Nov

Dec

Total

5.5

3.8

85.6

The proposed change includes adding points of diversion upstream of the current points of diversion for
License 13868. Diverting water pursuant to the proposed License 13868A at the additional upstream
points of diversion has the potential to injure or unreasonably affect any other legal users of water, as it
has the potential to reduce the amount of flow in a greater stream reach. Therefore the 2013 petition
included an evaluation of the effects of moving groundwater extraction of 85.6 afy of consumptively used
water from the current Eastwood/Odello No. 2 well to the existing Cal-Am wells. The analysis found that
extraction of all of the 85.6 afy of groundwater from the well located at the furthest upstream location
(Berwick No. 8 well) would increase drawdown at that well by 9.7 percent. By contrast, the analysis found
that extraction of all of the 85.6 afy of groundwater from the well located at the furthest downstream
location (Rancho Caada No. 2 well) would increase drawdown at that well by 1.9 percent. With the 2015
petition, the Eastwood Trust added a new well (Eastwood/Rancho Caada well), to be installed
approximately 86 feet from the Rancho Caada No. 2 well, whereby all of the 85.6 afy of groundwater
extraction would normally occur. The Eastwood Trust provided additional analysis that determined that
extraction of all of the 85.6 afy of groundwater from the new Eastwood/Rancho Caada well would result
in almost immeasurable changes to the drawdown modeled at the Rancho Caada No. 2 well
(1.9 percent), but would likely result in a slight decrease in the drawdown at the Carmel River because the
new well would be located farther away from the Carmel River than the Rancho Caada No. 2 well.
In addition, the Eastwood Trust has proposed to dedicate the amount of water applied for irrigation but not
consumptively used to instream uses, thereby making the water unavailable for diversion by other legal
users of water with priority junior to Application 30497. Under normal operating conditions, diversion and
use of water under License 13868 has historically consumed only a portion of the total amount of water
applied for irrigation, with the remainder of this natural flow abandoned and available for use by other
legal users of water. The Eastwood Trust proposes to dedicate up to 0.08 cfs for a maximum of 46.2 afy
to instream beneficial uses under new License 13868B. With the petition, the Eastwood Trust included
recommended monthly rates for water dedicated. However, after Division staff analysis, the rates were
slightly increased to bring the monthly dedication quantities closer to the petitioned annual amount (Table
4

The amount of water diverted and beneficially used is the measure of a water right. However, the amount of this
water that is consumed, or ultimately lost from the stream system, can be a smaller number.

Applications 30497B et al.

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Permit 20905

Licenses 13868 et al.

3). These flows shall remain in situ and shall not be later recovered under any other appropriative water
right with a priority junior to License 13868B.
Table 3. License 13868B Proposed Quantity for Instream Flow Dedication
Month
Jan
Feb
Mar
Apr
May
Jun
Jul
Aug
Sep
Rate
0.04 0.04 0.05 0.07 0.08 0.08 0.08 0.08 0.08
(cfs)
Quantity
2.5
2.2
3.1
4.2
4.9
4.8
4.9
4.9
4.8
(af)

Oct

Nov

Dec

Total

0.07

0.055

0.04

---

4.3

3.1

2.5

46.2

The Eastwood Trusts proposal to dedicate this amount of water has the potential to result in harm to
downstream appropriative right holders or claimants. According to the records of the State Water Board,
there is one point of diversion downstream of License 13868. At this point of diversion (known as the A
Well) the District diverts water under Permits 20808B and 20808C (Applications 27614A and 27614B,
respectively) from the subterranean stream of the Carmel River. Both the Eastwood Trusts
Eastwood/Odello Well 2 and the Districts A Well are located approximately 300 feet from the Carmel
River, with the Districts A Well located approximately 1,000 feet, in a downstream direction, from the
Eastwood Trusts Eastwood/Odello Well 2. The analysis provided by the Eastwood Trust for proposed
License 13868A found that diversion of an equivalent amount of water will result in less of an impact for
wells located further downstream in the watershed. In addition, the District has submitted a letter to the
State Water Board in support of the Eastwood Trusts proposed changes, including dedication of water.
Therefore, due to the location of the two wells near the bottom of the Carmel River watershed, the
proximity of both wells to each other, and the right-holders support of the proposed change, the State
Water Board has determined that dedication of water by the Eastwood Trust will not result in injury to the
District.
4.2

State Water Board Decision 1632 and Reversal of Priority with Application 27614

License 13868 was issued pursuant to Permit 20905B (Application 30497B), which was split from Permit
20905 (Application 30497). Condition 10 of Decision 1632 provides that any right issued pursuant to
Application 30497, including License 13868, has a priority senior to any right issued pursuant to
Application 27614. This reversal of priority is void if the Eastwood Trust diverts more water under a
combination of (1) any right issued pursuant to Application 30497 and (2) any existing right exercised for
the place of use included in any right issued pursuant to Application 30497. This requirement was
included to protect existing diverters who use water only within the Carmel River watershed against
5
Application 27614, which proposed the use of Carmel River water outside of the watershed . When
Permit 20905 was issued pursuant to Application 30497, a condition was added to clarify that the reversal
of priority only applies to water diverted and used, in compliance with the terms and conditions of the
right, within the Carmel River watershed. With the current petitions, the Eastwood Trust has proposed to
use water within a portion of the City of Carmel-by-the-Sea service area, portions of which are outside of
the Carmel River watershed. Therefore, the Eastwood Trust must record and report the amount of water
used outside of the Carmel River watershed, as those amounts will not be subject to the reversal of
priority provided by Condition 10 of Decision 1632.
License 13868A (Application 30497B01) and License 13868B (Application 30497B02) will include the
same reversal of priority subject to the same conditions as included in License 13868. The proposed
change will not adversely affect any rights issued pursuant to Application 27614, provided that the
amount of water diverted by the Eastwood Trust, in combination with the amount of water diverted under
any other right issued pursuant to Application 30497 or any existing right for the same place of use
included in any right issued pursuant to Application 30497, does not exceed the combined face value of
any rights issued pursuant to Application 30497.

See Section 1.2 of this Order for more discussion of Decision 1632.

Applications 30497B et al.

Page 11 of 16

5.0

Permit 20905

Licenses 13868 et al.

COMPLIANCE WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

Under the California Environmental Quality Act (CEQA), the State Water Board is the lead agency for
preparation of environmental documentation for the project.
A Notice of Preparation (NOP) for the draft EIR was circulated to a project-specific mailing list and to the
State Clearinghouse. The 30-day NOP comment period commenced on March 4, 2014 and ended on
April 2, 2014. The State Water Board also posted the NOP for the draft EIR to its website. The State
Water Board held a scoping meeting on April 2, 2014 to receive oral and written comments on the NOP.
The NOP and comments received are included in Appendix A of the draft EIR. The State Water Board
considered oral and written comments received during the scoping period in preparing the draft EIR.
A public Notice of Availability (NOA) of the draft EIR was mailed to adjacent landowners and interested
parties on October 30, 2014, and was posted in the Office of the County Recorder, County of Monterey
on October 30, 2014. In addition, the NOA was also physically posted in several locations near the
location of the project, including on State Route 1 near Palo Corona Regional Park, Carmel Valley Road
at Via Mallorca, Carmel Valley Road at Williams Ranch, and Carmel Valley Road at Prado Del Sol. The
Notice of Completion for the draft EIR was filed with the State Clearinghouse on October 30, 2014. The
draft EIR was circulated to the State Clearinghouse, to federal, state, and local agencies, and to
organizations and individuals that had expressed interest in receiving the draft EIR. The draft EIR public
review period commenced on October 31, 2014 and ended on December 15, 2014.
On May 29, 2015, the State Water Board provided proposed written responses to all public agencies that
commented on the draft EIR. The State Water Board received no suggested revisions to the proposed
responses.
As disclosed in the final EIR, approval of the individual well alternative has the potential to result in
significant effects based on erosion from well and pipeline construction, and based on the potential for
introducing hazardous substances into the environment during well and pipeline construction. With
implementation of best management practices in construction, impacts will be minimized to a less-thansignificant level. This mitigation measure has been included as Condition 18 to new License 13868A.
This condition requires that, prior to commencement of construction, the Eastwood Trust will submit a
construction plan including best management practices to minimize erosion and to prevent the accidental
release of a potentially hazardous material from entering the environment. Upon completion of
construction, the Eastwood Trust must report on implementation of the measures, and on any breaches.
Therefore, changes or alterations have been incorporated into the project which mitigate or avoid the
significant effects on the environment of erosion and hazardous materials during construction. (See Pub.
Resources Code, 21081, subd. (a)(1).)
On July 3, 2015, the State Water Board certified the final EIR. The Board finds that, on the basis of the
whole record, there is no substantial evidence that the State Water Boards approval of the petitions will
have a significant effect on the environment.
The State Water Board reviewed and considered the information in the final EIR prior to issuance of this
order, and the final EIR reflects the State Water Boards independent judgment. The State Water Board
will issue a Notice of Determination within five days of the date of this order.

Applications 30497B et al.

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Permit 20905

6.0

PROTEST RESOLUTION AND STAFF ANALYSIS

6.1

Carmel River Steelhead Association

Licenses 13868 et al.

On March 31, 2014, Carmel River Steelhead Association submitted a letter to the State Water Board
withdrawing its protest.
6.2

California Department of Fish and Wildlife

On December 8, 2014, the Eastwood Trust and the CDFW entered into an agreement whereby the
CDFW would withdraw the protest provided specific terms were included in Licenses 13868A and
13868B. The terms of the agreement included a reduction in the rate of diversion under License 13868B,
and the construction of a new well connected to the Cal-Am water system for municipal diversions only.
The State Water Board will include the terms from the agreement in Licenses 13868A and 13868B.
6.3

National Marine Fisheries Service

On March 12, 2015, the Eastwood Trust and the NMFS entered into an agreement whereby the NMFS
would withdraw its protest to the petition provided specific terms were included in Licenses 13868A and
13868B. The terms of the agreement included a reduction in the rate of diversion to 0.16 cfs under
License 13868B, and the construction of a new well connected to the Cal-Am water system for municipal
diversions only. The State Water Board will include the terms from the agreement in Licenses 13868A
and 13868B.
6.4

Richard Morat

The concerns expressed in this protest, identified by underline, have been addressed as follows:
1) The changes proposed would have adverse environmental impacts to the Carmel River and
estuary.
This question is one of the central questions in the draft EIR, and is the subject of a
January 10, 2014 memorandum from Balance Hydrologics, Inc., the January 13, 2014 letter from
HDR and the final EIR. These documents describe why the proposed changes will not adversely
affect the Carmel River and estuary. Furthermore, the floodplain restoration to be enabled by this
project will provide environmental benefits to the river and ecosystem by enhancing native
riparian and wetland habitat.
Additionally, changes to the project since lodging of this protest have further reduced the already
insignificant effects on public trust values. In protest dismissal agreements with NMFS and
CDFW, the Eastwood Trust agreed to move forward with the most environmentally protective
alternative evaluated in the draft EIR by using a new pump downstream of the existing Cal-Am
facility for municipal purposes, shortening the affected reach. The Eastwood Trust has also
agreed to put a significant portion of the proposed municipal diversions toward offsetting CalAms unlawful diversions in the first years after project approval. These actions further diminish
potential effects to the environment.
2) The use of water for municipal purpose instead of irrigation would affect Carmel River public trust
resources due to reduction in return flows since water would be exported from the watershed for
use.
The total annual evapotranspiration associated with the current diversion and use is 85.6 af/year:
this is the amount already being lost from the watershed under current practices the remainder
of the water currently diverted under the water right and that eventually returns to the system, will

Applications 30497B et al.

Page 13 of 16

Permit 20905

Licenses 13868 et al.

be left in situ to support instream benefits. (See, e.g., Response to Protest by Eastwood Trust,
March 7, 2014; EIR.) There will be no net impacts on the water balance of the Carmel River
system, even if there are no return flows to the Carmel River from the 85.6 af/year that will be
diverted and used for municipal purposes. Furthermore, it is unlikely that the return flows to the
system would be zero, as some municipal use is anticipated within the Carmel River system.
3) The existing quantification of water use under the license should be carefully evaluated to ensure
that the number is real.
State Water Board staff carefully reviewed the April 15, 2013 Davids Engineering technical
memorandum, Odello Ranch Crop ET and ET of Applied Water Estimates, Attachment 2 to
Eastwood change petition, and did not identify any mathematical or other errors in the petition
attachment. No evidence indicates that the license itself was incorrectly quantified at the time of
issuance or had become subject to forfeiture.
4) Pumping of Carmel River subterranean flow only to return it to the surface flow may be
detrimental to water temperatures and thermal stratification, if any, of the Carmel River estuary.
This issue stems from a misunderstanding of the instream flow dedication, as this project does
not involve such pumping. Instead, the instream flow portion of the license will remain
unpumped, supporting instream flows in the river. Ultimately, the project involves less pumping
than under current conditions, due to the instream flow dedication of a portion of the licensed
water right.
5) The impacts to endangered and threatened species deserves consultation and no action should
be taken until a comprehensive plan for recovery of the endangered species is developed,
adopted and implementation assured.
The State Water Board received input from both the National Marine Fisheries Service and the
California Department of Fish and Wildlife regarding this project, and has adopted measures into
the license that the fishery agencies required in order to drop their protests to the petition. Insofar
as the comment is referring to consultation under section 7 of the federal Endangered Species
Act, this is not a project subject to such consultation, as it is not a project undertaken by a federal
agency. NMFS has developed a recovery plan for the South-Central California Steelhead, which
identifies steps to assist in recovery of the species: approval of this petition is not contrary to this
plan, and plan implementation does not require that projects making minor changes in habitat be
put on hold until other elements identified in the plan are implemented. The January 10, 2014
memorandum from Balance Hydrologics, Inc. and the January 13, 2014 letter from HDR show
that the project will not have any significant effects on fish or wildlife resources in the Carmel
River. Additionally, the EIR does not identify any significant impacts to steelhead based on the
change petition.
6.5

Roy Thomas

Allegations expressed in this protest, identified by underline, have been addressed as follows:
1) The change petition will affect flows in the Carmel River downstream of the new points of
diversion and related public trust values.
This issue is addressed in the January 10, 2014 memorandum from Balance Hydrologics, Inc.
and the January 13, 2014 letter from HDR. This issue is also addressed in the EIR. These
documents show that the project will not have any significant effects on fish or wildlife resources
in the Carmel River. Additionally, changes to the project since lodging of this protest have further
reduced the already insignificant effects on public trust values. In protest dismissal agreements
with NMFS and CDFW, the Eastwood Trust agreed to move forward with the most

Applications 30497B et al.

Page 14 of 16

Permit 20905

Licenses 13868 et al.

environmentally protective alternative evaluated in the EIR by a new pump downstream of the
existing Cal-Am facility, shortening the affected reach. The Eastwood Trust has also agreed to
put a significant portion of the proposed municipal diversions toward offsetting Cal-Ams unlawful
diversions in the first years after project approval. These actions further diminish potential effects
in the reach upstream of the existing point of diversion.
2) Further diversions from the Carmel River will produce ever more serious adverse environmental
impacts.
License 13868 is an existing water right, which is capped in the amount of water found by
investigation to have been previously put to beneficial use. Accordingly, no increase in diversion
will occur as a result of the petition: instead, a portion of the water will be dedicated to instream
flows. The point of diversion for some of the water will move upstream, but the affected reach is
small, as is the impact of the change on the biological functioning of the river. The issue of
potential instream impacts, including cumulative impacts, was evaluated in the resources
identified in 1), and found not to have a significant impact.

7.0

PUBLIC TRUST

In addition to any obligation the State Water Board may have under CEQA, the State Water Board has an
independent obligation to consider the effect of the change on public trust resources and to protect those
resources where feasible. (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 [189
Cal.Rptr. 346, 658 P.2d 709].) As described in the EIR and above, the change will not significantly
adversely effect instream resources, and will enable a restoration project that will enhance public trust
resources. Therefore, approval of the project is not contrary to the State Water Boards public trust
responsibilities.

8.0

PUBLIC INTEREST

The State Water Board may only undertake water right actions where such actions are not contrary to the
public interest. (U.S. v. State Water Resources Control Board (1986) 182 Cal.App.3d. 82.) The public
has a strong interest in using the waters of the state to the fullest extent possible, and the state
designates domestic use as the highest priority use of waters. (Cal. Const.,art. X, 2; Wat. Code 106.)
Additionally, the change petition is part of a larger project of floodplain restoration for the purpose of
enhancing riparian and wetland habitat, which also furthers statewide policy in favor of no net loss of
wetlands and of increasing state wetlands. (Statewide Wetland Conservation Policy, 1993.) These
factors militate in favor of approving the change petition.
However, State Water Board Order WR 2009-0060 (the Cal-Am CDO) contains certain prohibitions and
precedential language regarding distribution of water to new service connections within Cal-Ams service
area, given the extent of unlawful diversions from the Carmel River that Cal-Am uses for existing service
connections. In determining whether to issue license amendments for a project that anticipates
distributing water to new service connections in Cal-Ams service area, it is necessary to evaluate
whether the Cal-Am CDO would bar the proposed project, and, if not, whether precedential language in
the Cal-Am CDO indicates that the change should be barred as contrary to the public interest, despite the
public interest factors weighing in favor of approval.
The new-service connection ban is in Condition 2 of the Cal-Am CDO:
Cal-Am shall not divert water from the Carmel River for new service connections or for any
increased use of water at existing service addresses resulting from a change in zoning or use.
Cal-Am may supply water from the river for new service connections or for any increased use at
existing service addresses resulting from a change in zoning or use after October 20, 2009,

Applications 30497B et al.

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provided that any such service had obtained all necessary written approvals required for project
construction and connection to Cal-Ams water system prior to that date. (Id. at p. 57.)
This condition relates to diversions Cal-Am makes from the Carmel River. As the license changes at
issue are under the Eastwood/Odello water rights, not the rights of Cal-Am, this condition does not serve
to directly bar distribution of other diverters water.
Similarly, conditions 3 and 5 of the Cal-Am CDO, which require Cal-Am to seek out new sources of small
supply to offset unlawful diversions even as the company pursues large supplies, also apply to Cal-Ams
actions. (See pp. 2-3, above, for text of conditions.) They similarly do not necessarily bar the sale of
water from other entities to Cal-Am subscribers.
As the project is not barred by the ordering conditions of the Cal-Am CDO, it is necessary to next consider
whether the proposed project may be reconciled with precedential language in the Cal-Am CDO which
indicates an intent to require that peninsula communities first apply new sources of water to reduce
unlawful diversions from the Carmel River, prior to using them for new growth. (See, e.g., Cal-Am CDO,
pp. 40-41, 54, 56; But see id. at pp. 50-54 [allowing a new sources of water to be used for growth in
Pebble Beach, without requiring it to completely supplant existing unlawful diversions].) Here, the
Eastwood Trust has agreed to commit a substantial amount of the water for municipal use that would be
made available through this license change to offset unlawful diversions by Cal-Am in the first three years
after license approval: all municipal water would be used to reduce Cal-Ams unlawful diversions in 2015,
at least 50 af would be used for that purpose in 2016, and at least 25 af would be used for that purpose in
2017. Additionally, the floodplain restoration project enabled by the license amendments will serve to
ultimately help the fishery, the riparian habitat and the hydrology of the lowest stretch of the river itself
recover from the effect of the unlawful diversions. This combination of direct offsets to Cal-Ams unlawful
diversions and action to address the long-term negative effects of the unlawful diversions on the
environment distinguish this project from the general language regarding applying water to growth on the
peninsula, and make approval of the project consistent with the public interest.

9.0

STATE WATER BOARD AUTHORITY

Pursuant to Resolution 2012-0029, the State Water Board has delegated the authority to the Deputy
Director of Water Rights to issue decisions and amended licenses on minor change petitions. The
Deputy Director for Water Rights has redelegated this authority in her absence to senior staff, pursuant to
redelegation order dated July 6, 2012.

10.0 CONCLUSION
The Eastwood Trust has complied with the requirements for modification of License 13868. For the
reasons stated above, the State Water Board finds that the petitions for change will neither in effect
initiate a new right, increase the amount of water the Eastwood Trust is entitled to use, nor injure or
unreasonably affect any other legal user of water. Furthermore, the State Water Board finds that the
proposed project is not contrary to the public interest, and that approval of the project conforms with the
State Water Boards public trust responsibilities. The proposed modifications should therefore be
granted.

Applications 30497B et al.

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ORDER
NOW, THEREFORE, IT IS ORDERED THAT:
1.

The protests of the CDFW, the NMFS, Richard Morat, and Roy Thomas are dismissed.

2.

License 13868 (Application 30497B) is revoked.

3.

Licenses 13868A and 13868B are issued for Applications 30497B01 and 30497B02, respectively,
subject to the conditions included therein.

STATE WATER RESOURCES CONTROL BOARD

ORIGINAL SIGNED BY:

Barbara Evoy, Deputy Director

Division of Water Rights
Dated: JUL 03 2015