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Klamath Riverkeeper
April 1, 2006A Program of the Klamath Forest Alliance Felice Pace, Volunteer Activist 28 Maple Road Klamath, Ca 95548 707-482-0354 Catherine Kuhlman 5550 Skylane Blvd., Suite A Santa Rosa, CA 95403 Via e-mail: ckuhlman@waterboards.ca.gov> SUBJECT: Comment on DRAFT Shasta TMDL and Action Plan Dear Ms. Kuhlman: The following comments are submitted on behalf of Klamath Riverkeeper, a program of the Klamath Forest Alliance (KFA). Attached is our December 4th 2005 comment. Unfortunately, that comment has been ignored by the staff as have the comments of hundreds of Native Americans, fishermen and other ordinary people who live along the Klamath River and the coasts of Southern Oregon and Northern California and who are the people who have suffered as a result of your ongoing failure to halt the progressive degradation of the Klamath River and its key tributaries the Shasta, Scott and Lost Rivers. The Draft TMDL and Action Plan is a big disappointment, a big NCWQCB failure and illegal to boot. It is instructive that - in spite of your and your staff's many "mea culpa's" concerning your failure to implement your own Environmental Justice Policy during development of the Shasta, Scott and Lost River TMDLs you have yet to hold one TMDL meeting in a Klamath River community. You need to understand that words do not cut it; we are interested and will judge you and your agency by your actions not by your words. Your actions show a failure to follow your sworn duty and a lack of respect for the people whose lives have been impacted as a result of your agency's 30-year failure to halt the degradation of the Klamath River and key tributaries. At the heart of that failure is your failure to regulate agricultural and other (so called) non-point pollution. For example, last week I was in the Scott River Valley where I own a home. In a casual drive through the Scott Valley I observed the following violations of the Basin Plan:
This then is the context of the Shasta River TMDL a history of ongoing and progressive degradation and a history of the NCWQCB complete failure to effectively regulate the main causes of that progressive degradation agricultural, forest and other non-point pollution. Here are our specific comments concerning the Draft TMDL and Draft Action Plan: 1. 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. The Draft TMDL identifies agricultural return flows as a direct, major source of the nutrient pollution. 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. But the Action Plan does not call for this and it does not require treatment of agricultural return flows even though such treatment is technically possible and necessary if beneficial uses are going to be restored. Recommendation: The Action Plan should refer to the Basin Plan provision quoted above and should lay out the steps by which the Board is going to require compliance, i.e. adequate treatment of all ag return flows so that they are not further degrading those parameters currently out of compliance. 2. 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 clearly shows the connection between flows and water quality. Yet the staff (as in the Scott) has skirted around problems with the adjudication. Thus, staff appears ready to propose shade as the main solution to the temperature impairment and has no credible action plan to restore the flows necessary to meet the temperature standard. 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 can't afford to wait 60 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 the inadequacies of adjudications and provisions of 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. Recommendation: The Action Plan should identify those actions by other state agencies which are needed if the beneficial uses are going to be restored within a reasonable time frame. Specifically the Action Plan needs to:
If the Action Plan relies in part on shade to restore beneficial uses, the Action Plan must lay out a clear and effective path to achieving those shade conditions. Since voluntary riparian restoration for the past 30 years has not result in appreciable increase in shade and has not halted the degradation of Shasta River water temperature, volunteerism is not a viable option for meeting shade requirements. The Action Plan needs to lay out a strategy that will work and should not rely on a strategy (volunteerism) that has proven to be ineffective. 3. The TMDL fails to identify past beneficial uses which must be restored in order to comply with the Porter-Cologne Act. That Act clearly calls for such consideration. In the past the Shasta River produced annual runs of up to 500,000 salmon. Furthermore, the Shasta was a stronghold of Spring Chinook salmon which are currently on the brink of extinction in the Klamath River Basin. Porter-Cologne requires that you develop an Action Plan which aims at restoring the historic conditions that supported those beneficial uses. Recommendation: Explicitly address the past conditions and past beneficial uses and provide an Action Plan that will restore the water quality conditions which supported those past beneficial uses in accordance with Porter-Cologne. 4. You have failed to adequately address Dwinell Reservoir. Dwinell Reservoir is part of the Shasta River it lies astride its course. The Reservoir itself is therefore part of the impaired listing. Therefore you are obligated to identify those actions which are needed to restore water quality in Lake Shastina to compliance with Basin Plan standards. Your proposal to defer dealing with the problems of Dwinell Reservoir is unacceptable, illegal and a violation of the TMDL Consent Degree. Recommendation: Address the water quality problems of Dwinell Reservoir in this TMDL and this Action Plan as required by the Basin Plan and the TMDL consent decree. 4. The Draft TMDL relies heavily on voluntary action by landowners in order to address pollution impairments. Klamath Riverkeeper supports voluntary restoration. However, the NCWQCB is a regulatory agency. The Board should not and can not legally avoid its obligation to fulfill its regulatory mandate. Therefore, voluntary approaches should 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. Recommendation: Thirty years of voluntary compliance has clearly demonstrated both the potential and the limitations of the voluntary approach. The first tier of the three tiered approach has had a 30 year trial. It is now time to move on to step 2 and step 3. Therefore the Shasta Action (Pollution Clean-up) Plan should 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. Conclusion: The Draft Shasta River TMDL and Draft Action Plan are inadequate and illegal because they:
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: tribes, fishermen, Klamath River residents and other interested parties Back to the North Coast Water Network Documents page. |