October 6, 2005 Governor Arnold Schwarzenegger State Capitol Building Sacramento, CA 95814 SUBJECT: Regional Board and State Board Policy - Total Maximum Daily Loads - Water Pollution Cleanup Plans for the Klamath and its Tributaries - Scott, Shasta and Lost Rivers Dear Governor Schwarzenegger: As you had stated very early on in your goals for the State of California and it's resources - Water Quality was to be one of your priorities. It seemed that you had recognized the need and value of protecting California's most important resource - Water. Recent actions by you have indicated a very significant step back in this position. In Region 5, Agricultural interests have appeared to be effective in disturbing the Waste Discharge Reporting program recently adopted and on the verge of implementation. In Region I, Agricultural and timber interests are working hard to gut pollution cleanup plans (TMDLs) in the Klamath River Basin. This includes inappropriate actions and misrepresentations of the TMDL process and actions taken by the Regional Board staff. These inappropriate actions/statements were passed on to your office. I would like to take opportunity do discuss these actions and their implications and the status of TMDLs in general and the currently in process Scott River TMDL and Action Plan. Menke Letter A letter was sent to your office by John and Jennifer Menke (September 10,2005) containing accusations regarding the TMDL process and certain Regional Board staff. These accusations, in part, were attributed to statement made by Board Member Sommerstrom. The Menke's concerns were that there was not sufficient data in the proposed TMDL to justify certain conclusions, that certain Board staff exhibited prejudicial behavior exhibited in a biased TMDL, and that TMDL Action Plans would put Scott river farmers out of business. As it turns out, the Menke's concerns regarding the TMDL data base, in part, may be justified to some extent. TMDLs are not perfect documents - where the document itself recognizees the findings for pollutant loading my be only an approximation of existing conditions based on the evidence at hand. However these approximations are close enough ( about a 80% degree of confidence) to start the planning process for pollutant loading reduction plans. As a scientist, Mr. Menke should understand that this confidence level is sufficient to move forward - where conclusions and adjustments can be made upon future findings from monitoring. It does not help that landowners in the area, including the Menke's make access for building a better data base almost impossible. Mr. Menke is mistaken about the characterization of the TMDL, Action Plan, and resulting consequences of same. As to the statements attributed to the Board staff and evidence of bias, Mr. Menke is totally off base. In fact, Ms Sommerstrom denies saying anything like what Mr. Menke attributed to her in his letter. So what does that say about Mr. Menke and his intent? I would think it would raise question as to the reasonableness, intent, and truth to his statements. Board Member Sari Sommerstrom Ms. Sommerstrom has just resigned her position on the Regional Board. It is too bad. I had hope that Ms Sommerstrom would demonstrate leadership qualities and a good scientific approach on issues before the Board. Sari has demonstrated exceptional abilities as a watershed coordinator and I am sure she will continue to be successful in these ongoing activities. As noted above, Ms Sommerstrom denies making the statements that Mr. Menke attributed to her. You might also refer to the response to the Menke letter from the Executive Officer of the Region 1 Water Quality Control Board. TMDLs and Action Plan - How They Work TMDLs are assessments of the conditions related to the impaired status of a waterbody. The waterbody is determined as impaired by pollutants and put on a list for study and action - where the pollutants that are addressed in the TMDL. A study is done to determine the sources of these pollutants (and what is attributable to human actions). Then estimations are made to determine the necessary reductions related to these sources that are needed to meet Water Quality Standards (as these standards are being violated). These quantifications are not going to be 100% accurate - they are general ballpark figures that point to planning (individual landowner assessment and Action Plans) that is necessary to meet targets and thus attain Water Quality Standards. State water law says that an implementation plan must contain a description of the nature of specific actions that are needed to achieve the water quality objectives, a time schedule and a plan for monitoring compliance (State Water Code Section 13242). Thus the Action Plan must be adopted into the Basin Plan (Water Quality Control Plan for the Region). Currently the Scott River TMDL Action Plan is totally voluntary. As you can see by the above noted Water Code Section, this is both unreasonable and illegal - unless voluntary are found to be equal to or better than other enforceable criteria for meeting Water Quality Standards. Of course voluntary actions comp should (and are) held open as options for attaining targets and to meet Water Quality Standards. . This is the case with the Garcia TMDL Action Plan for sediment, where landowners have 3 years to assess their property for significant sediment sources, and where they have 30 to 40 years to comply with sediment source reduction by choosing Regional Board stated options or through voluntary ranch plans. Currently 60% of the land base of the Garcia River Watershed is undergoing evaluation and Implementation Planning. Most of these actions are on a voluntary basis (though enforceable guidelines exist). Through this process the Garcia Watershed is demonstrating significant progress towards recovery. Does this sound too onerous and unreasonable - as claimed by Menke and other ranchers? I do not see how any such planning, with reasonable potential for success, can be more user friendly and flexible. Scott River TMDL For over 30 years water quality in the Scott, Shasta and Lost River have been degraded. This is mostly the result of non-point pollution The loss of beneficial uses ? especially salmon and steelhead fisheries - translates into millions of dollars in lost fisheries and recreation as the water from the Scott flows down through Scott Canyon and then the Klamath River. Actions that have lead to the degradation of the Scott River are: illegal diversion water, lack of conservation planning for water use, elevated water temperatures due to diminished stream flows and lack of near stream shading, elevated nutrients leading to depleted oxygen, clearcutting over streams and on steep, unstable, slopes that accelerates erosion and inundates streams and rivers with sediment. Timber and agricultural interests are, in this case, responsible for degradation of the states waters and have taken the livelihoods of those who depend on salmon and steelhead ? the downstream tribes, fishing-dependent river and coastal communities and those who make their living via river-based recreation. With the Scott River TMDL, and as with the Garcia TMDL, Agricultural and Timber interests worked hard against adoption and implementation of enforceable standards that, even though flexible, push landowners in the direction of taking action that would reduce pollutant inputs over time. It is time that agriculture and timber interests finally step up and do their part to restore water quality and the communities which depend on clean water and cold water fisheries. The TMDLs and their Implementation Plans are the means to do this. Please do not let this opportunity slip away. Support the staff of the NCRWQCB and resist lobbying by agriculture, timber interests and others who are working to gut the cleanup plans. Impaired Listings for California Salmon Streams The listing of nearly all short run salmonid producing streams in California as impaired by pollutants (sediment, temperature, nutrients, and dissolved oxygen - EPA 305 (b) report, 303 (d) list) is testimony to the State's failure in the control of waste discharge from timber harvesting, agricultural and industrial practices that contribute such pollutants, in deleterious quantities, to fish bearing streams. All of these streams will be subject to Total Maximum Daily Load - non-point - pollution control programs to be administered by the Regional Board (North Coast) and the EPA. Clearly the State anti-degradation policy, and implementation of same, in Basin Plan(s), the Forest Practice Act (and Forest Practice Rules), and the State of California Fish and Game Code is not effective in protecting beneficial uses. Conclusion We ask the Governor to take action to protect the integrity of California's most precious resource - water. TMDLs and TMDL Action (Implementation) Plans have proven to be effective in addressing and finding reasonable solution to conditions existing in impaired water bodies. Please discuss these issues with Terry Tamminen. Please support these water quality programs. Sincerely, Cc: USEPA Don Perata, Senate Rules Committee Senate Natural Resources and Water Committee NMFS Terry Tamminen. Catherine Kuhlman STATE AND FEDERAL WATER LAW - BACKGROUND State Water Resources Control Board has ultimate authority over state water quality policy - under the Porter-Cologne (Water Quality Control/State Water Code) Act. The Act also establishes 9 regional water quality boards to oversee water quality at more local levels. Regional Boards are responsible for the Water Quality Control Plan or Basin Plan for that region. The Basin Plan must include 3 components: 1) Beneficial uses to be protected, 2) Water quality objectives [each board shall establish such water quality objectives in Water Quality Control Plans as in its judgment will insure the reasonable protection of beneficial uses], 3) Implementation planing (Basin Plan Amendment) to meet the water quality objectives. Statutory considerations in establishing water quality objectives: - Past, present, and probable future beneficial uses of water - Environmental characteristics of the hydrologic unit under consideration, including the quality of water available thereto. - Water quality conditions that could reasonably be achieved through the coordinated control of all factors which effect water quality in the area - Economic Considerations - The need for developing housing in the region - The need to develop and use recycled water Basin Plan objectives and requirements must be submitted by the Regional Board to the State Board for final approval. This will be required of al individual TMDLs and Action Plans on impaired listed water bodies (see below). The implementation plan must contain a description of the nature of specific actions that are needed to achieve the water quality objectives, a time schedule and a plan for monitoring compliance - Water Code section 13242. Enforcement of the water quality requirements is a responsibility shared by the State Water Resource Control Board and the Regional Boards. Both entities monitor discharges and surface water quality, and both have the authority to require monitoring by dischargers. The Regional Board is at the forefront of the enforcement process. The State Board is responsible for the allocation of the State's water resources. It is apparent that the Basin Plan waste discharge limitations have not been being enforced and/or the Basin Plan limitations against discharge are insufficient. Thus we have water quality degradation leading to fishery collapse. Federal Role The Clean Water Act also requires the state to prepare Water Quality Standards and submit them to the EPA. The Clean Water Act requires that the state Water Quality Standards specify "appropriate water uses to be achieved and protected." These uses are called "designated uses" under the Clean Water Act. When classifying state waters for the purpose of designating uses, the state must consider " the use and value of water for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes - including navigation. Water Quality Standards are required to contain not only designated uses but also "water quality criteria" based upon such uses. Criteria are defined by regulations developed by the EPA as elements of Water Quality Standards, expressed as "constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use." Criteria "must be based on upon sound scientific rational and must contain sufficient parameters or constituents to protect the designated use." The Clean Water Act requires the state Water Quality Standards to contain an anti-degradation policy that is consistent with the federal policy. The federal requirements state: 1) All existing instream uses must be maintained and protected, 2) Water bodies that are sufficient quality to support the propagation of fish, shell fish, wildlife and recreation cannot be degraded below the level necessary to support those uses, 3) High quality waters that are outstanding natural resource waters must be maintained and protected. Section 303 (d) requires states...to identify waters for which technology-based effluent limitations are not stringent enough to achieve applicable standards. TMDLs are to be developed for listed waters. Each State .... is required to identify "water quality limited segments" for which federal technology based controls or local effluent limitations or other pollution control requirements (e.g., best management practices) required by the State or federal authority are not stringent enough to achieve water quality standards, including waters not meeting standards due to thermal discharges (40 CFR section 130.7 (b). Each State must consider all existing and readily available data in assembling the Section 303 (d) list (40 CFR section 130.7). At a minimum this should include: waters identified as impaired, threatened, or not meeting designated uses by other lists required by the Clean Water Act, such as Section 305 (b) report, and non-point source assessments, submitted to EPA under section 319 (this can include information supplied by the public). A TMDL reflects the total pollutant loading a waterbody may receive and still meet water quality standards. By statute (section 303(d)(1)(C)) and regulation (40 CFR section 130.7(c)(1), TMDLs are to be developed for all waters on the Section 303 (d) list. EPA's regulations at 40 CFR section 130.2(i) define a TMDL as the sum of "waste load allocations" plus load allocations (loads allotted to existing and future nonpoint sources, plus loads from natural background) plus a margin of safety to account for uncertainty. EPA regulations (40CFR section 130) state that the TMDL development process should be described in the State's continuing planning process under section 303(e) of the Clean Water Act. In addition, the regulations require EPA-approved TMDLs to be incorporated in to a State's Water Quality management Plan. Thus, TMDLs should be integrated with other State Water quality management activities. Ultimately, TMDLs are designed to assure that waterbodies meet Water Quality Standards. Water Quality Standards have three components including designated beneficial uses, narrative and/or numeric criteria, and anti-degradation policy. TMDLs require that a waterbody meet it's designated use. The basis for achievement of a designated use (i.e. fishing or swimming) is the determination and allocation or distribution and implementation of an acceptable pollutant load. Simply stated, to develop a TMDL one must first determine what is causing the problems, evaluate how much loading is acceptable, determine the loads form each source, and distribute the allowable load between the various sources and the margin of safety. Coastal Zone Management Act California has agreed upon responsibility to address nonpoint source pollution via the use of TMDLs. Some analysis of authorities can be found in FINDINGS FOR THE CALIFORNIA COASTAL NONPOINT PROGRAM and CZARA Action Plan. These documents contain the findings for the coastal nonpoint pollution control program submitted by the State of California pursuant to Section 6217(a) of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA). The findings are based on a review of the California Coastal Nonpoint Pollution Program Submittal, September 1995. Alan Levine Coast Action Group P.O. Box 215 Point Arena, CA 95468 Phone: Week Days 707 542-4408 Weekends 707 882-2484