Lawsuit claims Diablo Grande hurting fish

Garth Stapley, Modesto Bee, California, 18 July 2000

A watchdog organization committed to improving fish habitat has filed a lawsuit in federal court against the Diablo Grande resort near Patterson.

Construction workers at the resort have washed sediment into Salado Creek, which leads to the San Joaquin River, violating the federal Clean Water Act, Diablo Grande's discharge permit and its storm water pollution prevention plan, according to the California Sportfishing Protection Alliance.

"(Diablo Grande's) ongoing violations will cause irreparable injury to the fish, wildlife and other aquatic resources of Salado Creek, the interests of (the sportfishing alliance), its members and the public," reads the lawsuit, filed July 5. Diablo Grande development coordinator Keith Schneider referred questions to Modesto attorney Russ Newman, who was unavailable Monday for comment.

The lawsuit asks for a jury to order Diablo Grande to comply with its discharge permit, to pay for a court-approved environmental remediation fund and to pay penalties of $27,500 per rainy day since the Feb. 15 alleged violation.

Water has proved to be the resort's Achilles' heel. A previous lawsuit challenging the lack of a long-term water source put the brakes on construction -- temporarily, owners hope.

Diablo Grande so far has two golf courses, a clubhouse, small winery and vineyards. Developers hope soon to secure enough water rights to build a hotel, showcase winery, 313 homes, tennis club, spa, shops and restaurants on 2,300 of the resort's nearly 30,000 acres.

Owners hope the resort eventually will grow by four more golf courses, a wilderness center, research campus, offices and thousands of upscale homes in five villages. First, they must get by the water rights lawsuit, which is now in an appeals court.

The California Sportfishing Protection Alliance in its water quality lawsuit pointed to an April notice of violation sent to Schneider by the California Environmental Protection Agency.

The notice was based on a report by state inspectors who observed a water truck hosing mud on a curb of Oak Flat Road Feb. 15. Schneider told the inspectors he would order a halt to such actions, the notice indicates.

The sportfishing alliance's lawsuit cites "ongoing violations." Its lawyers sent an April 9 letter to Schneider threatening to sue to stop illegal discharges resulting in "elevated turbidity."

"Turbidity to a fish is like asking a human to go out in a sandstorm," the alliance's San Francisco lawyer, Alan A. Beaven, explained Monday.

The California Sportfishing Protection Alliance is a nonprofit corporation of some 10,000 members formed in 1983. The group has filed more than 20 similar lawsuits challenging construction discharges in the past five years.

For example, the group last year sued Turlock, saying its sewage plant pumped toxins into the San Joaquin River, endangering fish and other wildlife.

The lawsuits generally meet with success, Beaven said, because they heighten the attention of both regulators and offending parties.

"Often a lack of controls is based on a lack of knowledge rather than willfulness to violate the Clean Water Act," Beaven said.

Because the matter involves federal law, Beaven filed the Diablo Grande lawsuit in U.S. District Court in Fresno.