California Regional Water Quality Control Board - North Coast Region 5550 Skylane Blvd. Santa Rosa, CA 95403 Comment: Sediment Waste Discharge Prohibitions and Action Plan - Basin Plan Amendment General The objective the proposed Sediment Waste Discharge Prohibitions, Action Plan, and Basin Plan Amendment is to provide or bolster Sediment Control Provisions that have not been affective - to date. In theory these proposed provisions define, facilitate, and support sediment discharge requirements in the Basin Plan. A side benefit to such a Basin Plan Amendment would be support for the sediment TMDLs that await Board action. The articulated sediment control definitions and objectives may support TMDL Implementation via Board Resolution rather than adoption into the Basin Plan. To this point Regional Board has failed to move forward with sediment TMDLs in a meaningful way. This proposed policy, as an attempt to make progress with backlogged sediment TMDLs, deserves consideration. TMDL Implementation Plans adopted by Resolution do not carry the same legal weight as a Basin Plan Amendment. Sediment Waste Discharge Prohibitions and Action Plan, amended into the Basin Plan, may solve some problems and challenges in developing sediment reduction implementation planning. The question is; will focusing a Sediment Prohibition and Basin Plan Amendment suffice to enable meaningful progress in this area? There is an argument for strengthening and clarifying issues surrounding Sediment Prohibitions and developing language for an Action Plan. This should be accomplished to supplement TMDL Implementation Planing. The proposed Prohibitions and Action Plan may suffice as a supplemental and interim measure to fill a gap where further Implementation Planning for approved Technical TMDLs has not occurred and may not be likely to occur in the near future. Though approval of proposed Sediment Prohibitions and Action Plan, if designed and worded properly, can encourage movement towards compliance with Basin Plan water quality objectives, this Basin Plan Amendment will not suffice as a permanent replacement for TMDL Implementation Planning as Basin Plan Amendments. (See Discussion under Water Code - Below) Policy Questions and General Related Comment Below are some questions (and statements) meant to address some issues of definition and resolution related to the effectiveness or failure current policy in an effort to point out areas that must be addressed to make any policy change, Basin Plan Amendment, successful. We must address why we have failed to meet Water Quality Standards (in terms of sediment production from projects), and develop policy that is focused on the issue and that will work to perform the function(s) of sediment control and reductions - with assurance of meeting Water Quality Standards. Attention must be paid not to develop policy with loosely focused and defined parameters, definitions, and goals that amount to unenforceable standards. Lack of clarity in policy leads a situation where there is more argued about than accomplished. Issue avoidance is not a TMDL target. We need to identify what will work and put such policy into action. * Both state and federal anti-degradation policy is acknowledged and applies. Why has this policy not been enforced - historically and currently? What are the real causes of failure in meeting sediment related Water Quality Standards? Will this proposed Sediment Prohibition and Action Plan lead to progress in achieving water quality standards? * Are prohibitions currently in the Basin Plan sufficient to attain water quality standards? They may be - but for various reasons they have failed to maintain or restore water quality standards on the North Coast Rivers. How will the proposed prohibitions assure attainment of water quality standards? * This proposed Sediment Prohibition, to be functional, requires active involvement of Regional Board staff in project review to assess potential sediment affects. Is there staff availability and determination to accomplish this task? What kind of cooperation can you expect from other participating agency (e.g. CDF)? * When words like "feasible" or "reasonable" are attached to attainment standards and policy includes loosely applied definitions associated with these words; such policy wording can allow too much wiggle room allowing for project implementation to not address sediment pollutant issue. Yes we like the concept of reasonable and feasible, but language needs to be tightened up to assure compliance. * Nexus of TMDL Implementation Planning and Enforcement Orders (and or Resolutions) should be explained. We all need to know how this policy will fit together and work. * Project design specifications to meet attainment should be of the most effective design parameters. Selection of less efficient design must include alternatives discussion (under CEQA) with findings. * Economic Analysis of choices can lead to faulty justifications. Mitigation or sediment containment and reductions costs money. Monetary expenditure is not a justification for non-employment of mitigation or justification of inefficient mitigation. It is the landowners responsibility to control their anthroprogenic sources or potential sources related to proposed projects. * Monitoring should be part of Cumulative Watershed Effects analysis. Pre-project assessment of existing conditions (related to sediment input potential), historic inputs, and potential inputs (or reductions after mitigation), all must be included in CWE analysis. (See Water Code - Below) Mitigations to Control Sediment and Offset Compensation Policy must clearly, and emphatically, state that no new measurable discharges into impaired waterbodies are acceptable - with explicit standards for the limitations and a related standard of measurement (i.e. cubic yards). The standard should be; "Will there be a measurable input of sediment that is likely to affect degradation?" All reasonable measures must be taken to minimize potential pollutant inputs from existing sources and new sources related to proposed projects. New projects must minimize sediment inputs - before any offset compensation is considered. The use of offset compensation should be considered only if, and after, all practical mitigation indicates potential for input still exists. The use of the concept of "Zero Net Discharge" is not acceptable as project justification - as legacy anthroprogenic sources are already in violation of the Basin Plan and should not be used to justify large scale additional inputs. Compensation for discharge offset, after review of project for appropriate mitigation to prevent and minimize, must more than offset, by a multiple factor (demonstrated by numbers) any potential inputs. Demonstration of compliance must be measurable and factual with measured estimates an effective dates for completion of implementation measures. It is unclear if all Board members understand the justification of Offset Compensations. Since the standard is that all projects will be mitigated to the greatest practical extent, and where additional inputs of sediment are undesirable, or not permissible in impaired waterbodies, Offset Compensation is a valuable tool to justify a project where full mitigation can not be totally effective. In fact, in cases where additional pollutant (sediment) inputs are likely, the project can not be approved unless Offset mitigations are used to bring the volume of total pollutant (sediment) inputs down to a level where project approval can be justified. Reliance On Sediment Reduction Targets of EPA/Regional Board Approved TMDLs Both the Regional Board and the US EPA approved Sediment TMDL s for a large number of the Sediment Impaired Listed North Coast Rivers. Included in those, approved TMDLs for Sediment, were approved targets with implied sediment reduction and control strategies. It would seem logical that Sediment Waste Discharge Prohibitions, and any Action Plan for the Control of Waste Discharges would make use of these sediment control targets and strategy - by adopting those same words from these TMDLs into this Basin Plan amendment. Please reference these approved technical TMDLs for wording regarding Hillslope Targets: Reducing Stream Crossings with potential for diversion and/or failure, Hydraulic Connectivity - reduction in miles of roads, Decrease in amount of facilities in disturbed areas, Geologic controls and limitations placed on activities in disturbed areas, limitations on winter or wet weather operating controls. Note: Instream Targets are discussed in the Salmonid Freshwater Habitat Targets for Sediment-Related Parameters, Draft Document that is attached to this package. The instream Targets are goals to be achieved, where the Hillslope targets are objectives of project review to meet Basin Plan Standards and Water Quality Objectives. Nexus and Use of Other Existing Regulatory Authority - Fish and Game Code and Forest Practice Rules This Sediment Amendment and Action Plan should make maximum practical use of all existing regulatory authority. Fish and Game Code Coho Recovery Guidelines contain wording and policy that conforms with the intent of this Sediment Amendment and Action Plan. The Recovery Guidelines wording related to sediment reduction and control practices (related to timber - See Appendix - Below) should be referenced in this Basin Plan Amendment. The following discussion is justification for integration of Forest Practice Rules language into the goals and policy related to Water Quality Standards and pollution reduction - under this proposed Basin Plan Amendment: CDF as lead agency by MAA for water quality issues on Timber Harvest Plans and the THP is responsible for compliance to the Water Quality Control Plan for the area of timber harvest. The Regional Board has ultimate authority to enforce Basin Plan objectives. 1) The Forest Practice Act and the Forest Practice Rules stated objective is consistency with the Porter Cologne Water Quality Control Act. 2) Porter Cologne Water Quality Control Act, Water Code Section 13160, objective of consistency with the Federal Clean Water Act mandates must be met. 3) Under Porter Cologne, the MAA, the Forest Practice Rules, THP administration must meet Basin Plan anti-degradation requirements: State Anti-degradation Policy (Basin Plan, Chapter 3, Water Quality Objectives): "Controllable water quality factors shall conform to the water quality objectives contained herein. When other factors result in the 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 activities that may influence the quality of waters of the State and that may reasonably be controlled." 4) Forest Practice Rules Section 916.9 (a) (1) states: (a) ".......Every timber operation shall be planned and conducted to meet the following objectives where they affect a primary limiting factor: (1) Comply with the terms of a Total Maximum Daily Load (TMDL) that has been adopted to address factors that may be affected by timber operations if a TMDL has been adopted, or not result in any measurable sediment load increase to a watercourse system or lake." Note: this rule [916.9 (a) (1)] merely states CDF responsibility to enforce Basin Plan Guidelines as well as TMDL mandates. 5) Where project implementation under the Forest Practice Act can be part of the implementing mechanism assuring compliance with the Basin Plan - but currently is not being effective in Basin Plan Compliance. CDF's role as lead agency would be acceptable if it was working to achieve water quality standards. However, the Forest Practice Act has been found to not be protecting beneficial uses. Thus, additional measures are called for under authority of state water law - in the form of a Basin Plan Amendment and Action Plan for the control of sediment. This Basin Plan amendment, as policy, should make the highest and best use out of the language contained in the FPRs that supports compliance with sediment control objectives.. Section 896 of the Forest Practice Rules indicates that consistency with Porter-Cologne is necessary. In the Forest Practice Rules, APPENDIX - TECHNICAL RULE ADDENDUM NO. 2, reference is made to Water Quality Control Plans as applicable standards for operations. The State Water Resources Control Board and the Regional Boards have the ultimate authority and responsibility to assure compliance with the State Water Quality Control Act (Porter Cologne). Water Code Sections 13240-13247 vests authority of State and Regional Boards to amend water quality objectives and water quality control plans. Basin Plan Amendment with additional narrative and/or numeric criteria and implementation standards are the mechanisms for achieving water quality standards under the Act. The above regulatory framework is stated in this letter for grounding in the discussion of wording in the proposed Sediment Action Plan. Such wording must be framed in such a way where CDF is fully appraised of their stated responsibility and stated mission to protect water quality values (through all of the above) in exercising its lead agency responsibility in consort with Basin Plan objectives, and where CDF must enforce stated Basin Plan Water Quality Objectives and Standards. The North Coast Regional Water Quality Control Board has adopted the implementation plan for the Garcia River TMDL. The State Water Resources Control Board has adopted this TMDL and implementation plan into the Basin Plan. There are adopted EPA TMDLs for the Garcia River, Noyo River, Van Duzen River and Yager Creek, South Fork Eel River, South Fork Trinity River and Hayfork Creek, and Redwood Creek. These EPA TMDLs have broad objectives or targets (referenced above) that correspond with the above stated framework (and CDF responsibility under same) that call for reduction of controllable sources of sediment - in compliance with Basin Plan objectives.. This can and should be accomplished in the THP review process by: inventory of current road, landing, and crossing problem sites - with improvements to be completed to offset potential sediment generation from harvesting, requiring plan preparer to employ mitigations, including rehabilitation of problem sites that will reduce and offset sediment input potential, and the use experts in such planning. Use of such sediment reduction planning devices is consistent with, and mandated by, the above noticed framework. Water Code Section 13242 These proposed Sediment Waste Discharge Prohibitions and Action Plan, to be amended into the Basin Plan, are implementing program(s). Such implementing programs must conform to this section of the water code where: Porter-Cologne Act, Section 13242 Implementing Program. The program of implementation for achieving water quality objectives shall include, but not be limited to: a) A description of the nature of the actions which are necessary to achieve the objectives, including recommendation for appropriate action by any entity, public or private. b) A time schedule for actions to be taken c) A description of surveillance to be undertaken to determine compliance with objectives. As stated above, TMDL Implementation Plans should eventually be adopted into the Basin Plan. An appropriately worded Sediment Prohibition and Action Plan to be amended into the Basin Plan is acceptable as an interim measure to clarify and support Basin Plan objectives and initiate movement towards attaining water quality standards. Below is a discussion of the legal framework regarding Implementation Planning and Basin Plan Amendments: TMDL IMPLEMENTATION MUST BE ACCOMPLISHED THROUGH BASIN PLANNING We fail to see any means by which a TMDL and its implementation plan can be adopted other than through a basin plan amendment. The Clean Water Act and its implementing regulations, quite simply, require that every TMDL be incorporated into the state's water quality management plan (i.e., basin plan). (See 33 U.S.C. Section 1313(d)(2) (after EPA approves a state's TMDL submissions, the state "shall incorporate them into its current [water quality management] plan"); 40 C.F.R. Sections 130.6(c)(1), 130.7(d)(2).) Furthermore, water quality management plans must "identify implementation measures necessary to carry out the plan." (40 C.F.R. Section 130.6(c)(6).) Under federal law, then, TMDLs and their implementation plans must be adopted through a basin plan amendment. California law is no different. (See Water Code Section 13242 (requiring program of implementation for achieving water quality objectives).). As the State Board has recognized in the past, "California's 'Porter-Cologne' Water Quality Control Act (Section 13242) requires that any TMDL implementation program be adopted as a Basin Plan amendment." SWRCB, Report in Support of U.S. Environmental Protection Agency's Continuing Planning Process 8 (May 2001) (hereafter "CPP"). Accordingly, the state's EPA-approved continuing planning process for the development of TMDLs includes steps to "[d]esign an implementation strategy and assign responsibility for implementation; [and] [a]dopt a Basin Plan amendment that includes the goals and implementation strategy." (Id.; see also Water Code Section 13246 (setting forth procedure for state board consideration of basin plan amendments solely related to a regional board's total maximum daily load submittal).) It is clear, then, that all relevant statute, regulation, and policy specify that TMDLs and their implementation plans be adopted through basin plan amendments. It is, therefore, entirely inappropriate for the draft policy to state that TMDLs may be adopted by other means. As an ancillary point, due to the huge emphasis on alternative regulatory implementation methodologies, the Policy and Guidance seem to lose sight of the fact that, in every case where a TMDL is adopted, no matter what the implementation option, a TMDL calculation as set forth in 40 CFR Part 130 (loading capacity, load allocations, waste load allocations, and margin of safety) will be done by the Regional Board. This fact should be crystal clear in both documents. As set forth in the CPP, steps four and five of the five-step TMDL development process are: Develop implementation plan: This step is a description of the approach and activities to be undertaken to ensure the allocations are met and identification of parties responsible for carrying out the actions. Amend the Basin Plan: Federal law requires that TMDLs be incorporated into the Basin Plans. The Basin Plan is a legal document that describes how a Regional Board would manage water quality. The TMDLs must be formally incorporated into the Basin Plan to be part of the basis for Regional Board actions. Basin Plan amendments are adopted through a public process that requires approval of the TMDLs by a Regional Board, the State Board, the Office of Administrative Law, and USEPA Region 9. Sincerely, Alan Levine Coast Action Group P.O. Box 215 Point Arena, CA 95468 Phone: Week Days 707 542-4408 Weekends 707 882-2484 -------------------------------------------------------- Appendix I - Language from CDFG Coho Recovery Guidelines SECTIONS ADOPTED from the TIMBER MANAGEMENT ALTERNATIVES of the COHO RECOVERY PLAN/STRATEGY by the F&G COMMISSION [in Sacramento on 4 February 2004] to be A NEW SECTION in the STRATEGY that PROVIDES POLICIES to GUIDE the ISSUANCE of INCIDENTAL TAKE AUTHORIZATIONS under the CALIFORNIA ENDANGERED SPECIES ACT (CESA) [These sections were in Timber Management Alternative B] 16. In watersheds with coho salmon, to the extent staff are available, the Department will prepare a coho salmon biological assessment when acting as a Lead or Responsible agency under the California Environmental Quality Act (CEQA) for timberland conservation activities, including but not limited to the review of timber harvesting plans. A coho salmon biological assessment is an assessment by the Department of a projects effects, if any, on coho salmon. The biological assessment will include conclusions by the Department regarding potential for the project to jeopardize the long-term survival of or take coho salmon. It will also include the Departments assessment of the significance of project impacts for purposes of mandatory findings of significance under 14 CCR 15065 (a), (b), and (c). 17. In reviewing THPs and/or issuing incidental take authorizations in watersheds (except San Joaquin and Sacramento River drainages) which have historic or current coho salmon or restorable coho salmon habitat, on a case-by-case basis the Department will recommend the following measures in this Section 17 and Section 18 below (which assume continuation of the existing Threatened and Impaired Watershed Rules and, to the extent the rules are discontinued, incorporate them herein by this reference), as appropriate, based on substantial evidence, as the term is defined by 14 CCR 15384. CDF will support Department recommendations by requiring them in THPs to ensure that timber operations are consistent with recovery of coho salmon: a. For Class I watercourses, retain the ten largest conifers within 100 of the watercourse or lake transition line on each side of the watercourse, along each 330 segment of the watercourse; b. For Class I watercourses, within the watercourse and lake protection zone retain trees that provide direct shading to pools, consistent with the conifer retention standards in the Threatened and Impaired Watershed Rules; c. For Class II watercourses, where an inner gorge is present, establish a special management zone beyond the WLPZ where the use of even-aged regeneration methods is prohibited. This special management zone shall extend upslope to the first major break in slope (i.e., where the slope is less than 55% for a distance of 100 feet or more) or 200 feet as measured from the watercourse or lake transition line, whichever is less. A registered geologist shall be consulted and additional recommendations for slope stability implemented; d. For Class II watercourses, enhance riparian buffers for temperature and sediment management in accordance with applicable provisions of section 18 below; e. Where a headwall swale is present: 1) utilize only single-tree selection prescriptions as per 14 CCR 913.2(a)(2)(A) (2004) that retain the diameter distribution present before timber operations or a thinning from below prescription as per 14 CCR 913.3(a) (2004) that retains dominant and codominant trees; and 2) require review of timber operations by a certified engineering geologist; f. For Class III watercourses in or adjacent to harvest units where even-aged management is proposed: 1) require a minimum 25-foot- wide WLPZ on each side of the watercourse for slopes less than or equal to 30% and a minimum 50-foot-wide WLPZ on each side of the watercourse for slopes greater than 30%; 2) retain all trees situated within the channel zone( as defined in 14 CCR 895.1 (2004), i.e., channel zone) and trees that have boles that overlap the edge of the channel zone.; 3) within the WLPZ, at least 50% of the understory vegetation shall be left post-harvest in an evenly distributed condition; 4) within the WLPZ, retain all snags, LWD, hardwoods, and regeneration conifers (10 inches dbh or less), except where necessary to allow for cable yarding corridors, safety, or crossing construction; 5) within the WLPZ, prohibit initiation of burning for purposes of site preparation; and 6) allow commercial timber operations to yard through a Class III WLPZ. g. For construction, reconstruction, upgrades, maintenance, and operation of roads within and appurtenant to THPs detailed site specific recommendations will be developed consistent with the Handbook for Forest and Ranch Roads (prepared by Pacific Watershed Associates, 1994c, for the Mendocino County Resource Conservation District in cooperation with the CDF and the U.S. Soil Conservation Service. Mendocino Resource Conservation District, Ukiah, California. 163 pages.). 18. On all intermittent or perennial Class II watercourses which are mapped on current 1:24,000 scale U.S. Geological Survey topographic map and are tributary to Class I watercourses with coho salmon: a. Inner Band: From 0-50 feet: Retain 85% post-harvest overstory canopy and do not reduce conifer overstory below 25% (absolute, not relative measure). b. Outer Band with 0-30% Slope: From 50-75 feet retain 65% post-harvest overstory canopy and do not reduce conifer overstory canopy below 25% (absolute, not relative measure). c. Outer Band with 31-50% Slope: From 50-100 feet, retain 65% post harvest overstory canopy and do not reduce conifer overstory canopy below 25% (absolute, not relative measure). d. Outer Band with >50% Slope: From 50-125 feet, retain 65% post-harvest overstory canopy and do not reduce conifer overstory canopy below 25% (absolute, not relative measure).