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Klamath Riverkeeper
December 4, 2005A Program of the Klamath Forest Alliance Felice Pace, Volunteer Activist 28 Maple Road Klamath, Ca 95548 707-482-0354 felice@jeffnet.org Catherine Kuhlman 5550 Skylane Blvd., Suite A Santa Rosa, CA 95403 Via e-mail: kuhlman@waterboards.ca.gov Phone 707-576-2220 SUBJECT: Comment on Shasta TMDL Preparation and Staff Work Dear Ms. Kuhlman: The following comments are submitted on behalf of Klamath Riverkeeper, a program of the Klamath Forest Alliance (KFA). First, I want to thank you for instructing staff to hold meetings in the coastal area where it is more accessible to those populations including indigenous native people, sport and commercial fishermen, recreational companies and communities which are most impacted by pollution being generated in the Shasta River in violation of Basin Standards and the Clean Water Act and with devastating impacts to beneficial uses. The meeting was attended by tribes, scientists, conservationists and private citizens. However, since the meeting several interested persons have said they would have come had they been noticed. Staff says notices went out but several people say they only heard the day before via a last-minute Klamath Riverkeeper message. Im attaching the Klamath Riverkeeper/KFA Action on Klamathe-list. Id suggest including all these folks in electronic notices re TMDLs and other Klamath issues. We want to also commend the staff for their good work and the openness with which they presented and explored the issues. The meeting was a revelation in several critical respects which bear directly on the TMDL and Action Plan. It is these key issues I want to address here. Issue #1: Basin Plan Non-Degradation Requirement: The Basin Plan states: Controllable water quality factors shall conform to the water quality objectives contained herein. When other factors result in degradation of water quality beyond the levels or limits established herein as water quality objectives, then controllable factors shall not cause further degradation of water quality. Controllable water quality factors are those actions, conditions or circumstances resulting from man's (sic) activities that may influence the quality of the waters of the State and that may be reasonably controlled. In investigating nutrient pollution in the Shasta River, NCWQCB staff identified agricultural return flows as a direct, major source. Most of the flood irrigation is on pastureland and return flows contain organic and inorganic nutrients in variable but typically high concentrations. Because the Basin is in violation of the nutrient standard, this controllable source MUST be controlled in order to comply with the Basin Plan provision quoted above. Please note that control efforts need not and should not wait for TMDL adoption. Obviously, this portion of the Basin Plan is not being implemented now even though NCWQCB staff is well aware of it. This is cause for concern in itself. However, of even greater concern is that the staff appears to be preparing to propose a TMDL which would continue to ignore this obvious serious violation. Until the nutrient standard is achieved, the Action Plan target must be zero polluted discharge. At the meeting in Arcata this issue was discussed. It was pointed out by this attendee and confirmed by a major wetland expert who was present that the technology (settling ponds, filter strips and treatment wetland pods) to deal with polluted ag return flows exists. Staff pointed out that the polluted ag run-off can not be recirculated because in some cases it is the irrigation water for the farmers/ranchers downstream. While this is a challenge, ag return flows can be treated and then released for downstream for further use. Recommendations: 1.1 The TMDL must identify the applicable non-degradation provision of the Basin Plan and the Implementation Plan must lay out a clear path to compliance, i.e. a clear path to eliminating discharge of polluted agricultural wastewater whether or not this discharge is downstream irrigation water. 1.2 The TMDL should fully lay out the technology available to eliminate agricultural return flow pollution and include a time-line for all those responsible for polluted discharge to come into compliance. Issue #2: Water Temperature Impacts resulting from flaws in the Shasta River Adjudication During the meeting it was acknowledged that flows in the Shasta River have declined in recent years due to increased pumping from the river under riparian rights not properly addressed in the Shasta Adjudication. Modeling of a 150% increase in flows from Big Springs by the staff indicate that water temperature downstream would decrease from between 2 and 4 degrees if the flows are increased to 150% of current flows. These flows, which come from Mt. Shasta, are high quality, cold water. The modeling also clearly shows the connection between flows and water quality. Yet the staff (as in the Scott) has skirted around the problems with the adjudication. Thus, staff appears ready to propose shade as the solution to the temperature impairment. The shade solution is problematic due to soil conditions but even if it were to work staff says it would take upward of 60 years to achieve the temperature standard. We cant afford to wait 30 years for compliance! Furthermore, the staff is ignoring the Basin Plan at 4-34.00 which specifically instructs the Executive Officer to investigate the violation or threatened violation of those rules and regulations of other agencies which have been adopted to protect the quality of the waters of the region.Thus the EO and staff have a positive obligation to identify in the course of preparing TMDLs provisions of adjudications and DFG codes that are being violated when those violations contribute to violation of water quality standards. Such is the case in the Shasta, Scott and Mainstem Klamath. Recommendations: 2.1 The TMDL must identify the problems with the Shasta River Adjudication, elucidate how these problems have impacted water quality and lay out a path in the Implementation Plan to resolve these issues. 2.2 Because the shade alternative is problematic and will only solve the temperature problem over the long-term, the Implementation Plan should focus on increasing Big Springs flows as the most effective, quickest and (in all likelihood) the most cost effective method to address water temperature pollution. Issue #3: Voluntary approaches must be kept in perspective and utilized properly. The Basin Plan embraces a three tiered approachto non-point pollution sources (Basin Plan @ 4-32): 1. voluntary implementation, 2. regulatory based encouragement, and 3. effluent limitations. Previously (Scott River Draft TMDL and Action Plan) and in the Shasta TMDL development to date, the staff is emphasizing voluntary implementation. However, this approach has already been in effect for 30 years in the Klamath River Basin. The track record of voluntary compliance is mixed: some entities have used the clean water and restoration funding supplied by the NCWQCB and others to make their operations responsible; others have ripped off the funds, using them for their own benefit without restoring anything; still others have ignored the entire effort and continued to pollute. We believe that the proper action at this point is to emphasize item 2 and 3 of the Basin Plan's approach. We simply can not afford to wait another 30 years or even ten to prove that some entities are not going to comply unless and until there are concrete regulatory and social consequences which are immanent. Recommendations: 3.1 The TMDL Action Plan should review the 30 year history of the voluntaryapproach to meeting water quality standards in the Shasta River Basin including past 319 and restoration grants, successes and failures. Based on this analysis the Action Plan should stress regulatory-based encouragementfor a maximum of 5 years followed by effluent limitationsif the encouragementis not effective in meeting applicable standards. Conclusion: Since the Northcoast TMDL process came to the Klamath River Basin it has been going down hill. This is clearly evident to anyone who compares, for example, the approach to sediment pollution taken by the NCWQCB in the Scott (Public Draft) with the approach taken in the Garcia (see Basin Plan Amendment). It is unacceptable that a lower de facto standard for water pollution clean-up is being promoted by the staff of the NCWQCB for the Klamath River Basin as compared to other Northcoast River Basins. This must end! Those who depend on the waters of the Klamath River Basin and those who want beneficial uses restored will not accept another 30 years of regulatory neglect. Please give us a Shasta TMDL and Implementation Plan that will bring clean-up in a reasonable time! Sincerely, Felice Pace For Klamath Riverkeeper Cc: Klamath Basin tribes and other interested parties Back to the North Coast Water Network Documents page. |