More on Healdsburg Ponds Case

This Clean Water Act litigation was brought by Jack Silver and Northern California River Watch. I was one of the expert witnesses on this case. We won the case in 9th District, and on appeal. I have asked Jack whether he believes Healdsburg will appeal our victory to the US Supreme Court. I think this case will be published and will become the law of the land. If Healdsburg appeals again they will have wasted yet more hundreds of thousands of dollars of their rate payers money. Those ratepayers should be very angry at how their officials have conducted this case and should toss out their elected officials for squandering so much money, all in order to avoid obtaining an NPDES permit, and bringing their wastewater discharge into compliance with the Clean Water Act.

Sincerely,

Bob Rawson

Healdsburg’s Wastewater in Pond Ruled Illegal

For those of you who have been following our Healdsburg case the 9th Circuit Thursday affirmed our lower court victory. This case is the first from any Federal Circuit after the recent Supreme Court Rapanos wetland decision in July. The unanimous decision was written by the Chief Justice of the Ninth Circuit and sets significant precedence regarding the protection of adjacent wetlands. The decision can be viewed in our current or resolved cases sections.

warm regards ~ Jack

Wastewater in pond ruled illegal

HEALDSBURG
by Bob Egelko, Chronicle Staff Writer
Friday, August 11, 2006

A federal appeals court, in a swift application of the Supreme Court’s new standards for federal regulation of wetlands, ruled Thursday that the city of Healdsburg illegally dumped sewage from a waste treatment plant into a pond whose waters seep into the Russian River.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco was the first interpretation by any appellate court of the high court’s June 19 wetlands decision, said Charles Tebbutt, lawyer for the environmental group that sued Healdsburg.

The Supreme Court, in a pair of cases from Michigan, said federal regulators can prohibit the pollution of wetlands — thousands of ponds, marshes and other small or seasonal waterways — if the wetlands have a significant connection to navigable waters, like a river or a lake. That connection may consist of a direct intermingling of waters or an environmental link, such as acting as a filter for pollutants before they reach the larger waterway, the court majority said.

The standard was more limited than previous interpretations of federal authority, which extended to any wetlands that were part of the same water system as a navigable waterway. But the definition of the new guidelines was left largely up to lower courts.

In Thursday’s case, the appeals court said the pond where Healdsburg dumps its treated wastes “significantly affects the physical, biological and chemical integrity of the Russian River” and thus satisfies the Supreme Court’s standard.

Known as Basalt Pond, it was created by sand and gravel mining that lasted from 1967 to 1984. The pond, a half-mile long and a quarter-mile wide, is separated from the river by a levee. Pond water drains into the surrounding soil-and-rock aquifer, and seeps into the river within a few months. Chloride from the treated wastewater has been measured at about three times its normal level in the river at a point near the pond, the court said.

The city has discharged wastewater into the pond since 1978, with approval from the state and the quarry operator but without a federal permit as of 2001, when the suit was filed. After being sued, Healdsburg obtained a federal permit, which limits waste discharges, said Tebbutt, a lawyer with the Western Environmental Law Center.

Upholding a lower-court ruling that the permit was required, the appeals court said the pond is linked to the river in several ways: by direct mingling of underground waters, by surface flows when the river overflows the levee, and biologically, by supporting fish and bird populations that are part of the Russian River ecosystem. That is enough to show a significant connection, said Chief Judge Mary Schroeder in the 3-0 ruling.

Tebbutt, who represented Northern California River Watch, said the ruling requires the city to follow the limits in its federal permit, rather than returning to its previous higher discharge levels.

The city’s lawyer was unavailable for comment.

North Coast Regional Water Board Meeting

Meeting of Water Board and Public Forum

When: Wednesday, August 9, 2006, 8:30 am

Where: Regional Water Board, 5550 Skylane Blvd, Suite A, Santa Rosa CA
AGENDA

Consent Item: Bohemian Grove–Issuance of Wastewater Discharge Requirements for Treatment Facility.

Action Items:

1. Proposed WDRs for Willits Environmental Remediation Trust and the City of Willits Page Property Treatment System.
2. Consider Watershed-wide WDRs for THP activities by Green Diamond Resource Company.
3. Consider adopting a conditional waiver for the Scott River TMDL.

Enforcement Item: Consider whether to affirm, reject, or modify a complaint for administrative civil liability issued  on May 10, 2006 and other action in the matter of Kamath CSD Wastewater Treatment Facility for Violation of Cease and Desist Order.

Workshop on Bacteria Research in Five Marin and Sonoma County Estuaries

We are monitoring Bacterial Sources and Transport in Five Northern California Estuaries. Please join us for a Workshop on bacteria research in five Marin and Sonoma County estuaries at North Coast Regional Water Quality Control Board, DCJ Room Santa Rosa, California Tuesday September 19, 2006 9:00 am –12:00 pm.

We sampled water, suspended solids, and sediment across the freshwater-saltwater transitio three water samples one sediment sample leftright middle n zone at each estuary ten times from August 2004 to June 2005. Samples were analyzed for fecal coliform and E. coli, DNA fingerprinting is also being used to differentiate bacterial populations in estuary sediment, suspended solids, and water fractions. Our results provide water quality sampling and monitoring programs with a context for the interaction between sediment andfreshwater sources of bacteria, as well as salinity and seasonal influences on bacterial levels.

We look forward to discussing with you our results, the relationship between sediment and water column bacteria, and methods for statistical analysis. There is a map of the Russian River Estuary with the five sampling transectlocations. Each transect consists of three sampling locations (right, middle, and left) from which three water samples and one sediment sample were collected.

University of California Agriculture & Natural Resources Cooperative Extension Sonoma County 133 Aviation Blvd., Rm. 100 Santa Rosa, CA 95403-2810 Tel. (707) 565-262, Fax (707) 565-2623

Presenters: E. Robert Atwill, UCCE Specialist, DVM, Ph.D. David J. Lewis, UCCE Watershed Management Advisor

Protections for Storm Water and Nonpoint Source Discharges

Attached is a Notice of Board Member Quorum for the California Ocean Plan, Areas of Special Biological Significance (ASBS)
Special Protections to Address Storm Water and Nonpoint Source Discharges commencing on August 15, 2006, in Monterey, California.

State Water Resources Control Board
Executive Office Tam M. Doduc, Board Chair
1001 I Street • Sacramento, California 95814
• (916) 341-5611
P.O. Box 100 • Sacramento, California • 95812-0100 Fax (916) 341-5621 www.waterboards.ca.gov
Linda S. Adams Secretary for Environmental Protection
Arnold Schwarzenegger Governor NOTICE OF BOARD MEMBER

QUORUM A quorum of the State Water Resources Control Board members may be present at the Public Scoping meeting for the California Ocean Plan, Areas of Special Biological Significance (ASBS) Special Protections to Address Storm Water and Nonpoint Source Discharges.
Tuesday – August 15, 2006 Monterey Conference Center
Steinbeck Forum Theater
One Portola Plaza
Monterey, CA 93940
Meeting Time – 9 a.m. – 12 p.m.

State Supreme Court Rules Counties Must Protect Coasts

by Steven Stein – THE GARDEN ISLAND

City and county governments have a responsibility to protect coastal waters, the Hawai Supreme Court has ruled.

In a 60-page unanimous decision issued Friday, the court delighted state environmental groups by requiring city and county governments to take an active role in coastal water regulation.

“This is a landmark decision,” said Judy Dalton, a Kauai Sierra Club spokesperson. “It puts counties on notice that yes indeed, they are responsible for what happens on our coastlines.”

The court justified its ruling by invoking Article XI, Section 7 of the state Constitution, which requires the conservation of coastal waters for the public.

“The courts have realized that the public-trust doctrine is a mandate in our Constitution that should finally give us some leverage to get the counties to comply,” Dalton said.

The ruling applies to the Hokulia resort development project near Kailua-Kona on the Big Island, which is owned by 1250 Oceanside Partners, a Honolulu development company.

In September 2000, heavy rains sent runoff from the development into nearby Kealakekua Bay, launching six years of conflict between Hokulia and local environmentalists.

On Oct. 30, 2000, the Kelly Plaintiffs, four Big Island environmentalists upset with the discharge into Kealakekua Bay, filed a complaint against Oceanside and the state Department of Health with the Big Island Circuit Court.

In 2002, Circuit Judge Ronald Ibarra sided with the Kelly Plaintiffs, ruling that the state and county had a responsibility to protect coastal waters near Hokulia.

Ibarra also found the state and county at fault for not protecting these waters. Although the high court’s ruling affirmed Ibarra’s decision to hold state and county governments responsible, it did not find the state and county at fault.

According to David Kimo Frankel, a lawyer for the Sierra Club who filed an amicus brief on behalf of Protect Keopuka Hana, a group of Native Hawaiian cultural practitioners and environmentalists who sued the state and Hawaii County, the state and county were let off the hook because “evidence wasn’t properly submitted.”

Representatives from Hokulia and the state and county were unavailable for comment yesterday.

Although the court’s ruling pleased Frankel, he said it will be difficult to enforce because of the state’s limited resources.

“We all know that the Department of Health and the Kauai Public Works Department don’t have enough staff to investigate and monitor developments to ensure they’re not polluting water quality,” Frankel said. “We’ll see if agencies take these responsibilities seriously. If the county and state don’t uphold the public-trust responsibility, there will be a lot more lawsuits.”

Proposed City Ordinance Requiring the Inspection and Repair of Sewer Lines

Pursuant to the October 2005 settlement agreement between the City and Northern California River Watch, Santa Rosa Utilities Department staff was required to recommend the adoption by the Council of an ordinance requiring the inspection of private laterals prior to the sale of property.

The recommended ordinance would require the inspection and repair, if necessary, of all laterals more than 10 years old upon the sale or transfer of real property. Staff will review the content of the recommended ordinance, which is attached to the staff report, and discuss various means of implementing the ordinance and the possible timing of such implementation.

Policy for Maintaining Instream Flows in Northern California Coastal Streams

The Division of Water Rights is in the process of preparing a State Water Board Policy for Maintaining Instream Flows in Northern California Coastal Streams. The proposed policy may affect water diversions in coastal streams in portions of Marin, Napa, Sonoma, Mendocino, and Humboldt Counties. Water Code Sections 1259.2 and 1259.4 require the State Water Board adopt the Policy by January 1, 2008. These Water Code sections were enacted by Assembly Bill 2121, which was signed by the Governor in September 2004. The Policy will be prepared in accordance with state policy for water quality control, which requires the preparation of environmental documents.
CEQA Scoping Meeting
Notice of Public Scoping Meeting (not available yet)
Notice of Preparation (not available yet)

To receive updates by e-mail regarding the Proposed Instream Flows Policy for Northern California Coastal Streams, subscribe on-line to the AB2121 Instream Flows Policy mailing list

More – with links:

Trout Unlimited’s and Peregrine Chapter of the National Audubon Society’s Petition for Timely and Effective Regulation of New Water Diversions in Central Coast Streams. (Project Dedicated Webpage)

GUIDELINES AND STUDIES

December 28, 2005 – Status of Pending Applications to Appropriate Water in the Counties of Marin, Napa, Sonoma, Mendocino, and Humboldt
September 22, 2005, State Water Resources Control Board Resolution 2005-0070 – Authorizing the Executive Director to Negotiate and Execute Contracts Responding to California Water Code Section 1259.4 (AB 2121) Regarding the Development of the Principles and Guidelines for State Policy for Water Quality Control for Northern Coastal Streams

USGS Evaluation of Methods Used for Estimating Selected Streamflow Statistics, and Flood Frequency and Magnitude, for Small Basins in North Coastal California

Guidelines for Maintaining Instream Flows to Protect Fisheries Resources Downstream of Water Diversions in Mid-California Coastal Stream

COASTAL STREAM WATERSHEDS

Napa River Watershed – [Under Construction]

Navarro River Watershed – [Under Construction]

Russian River Watershed

Alan Levine

State Court Backs Coho Protection Rules

John Driscoll The Times-Standard

A Sacramento court has upheld decisions by the California Fish and Game Commission to list coho salmon in Northern California as protected under state law.

Judge Gail Ohanesian in Sacramento Superior Court ruled late last week that the commission and the California Department of Fish and Game acted within the law to list the fish as endangered between San Francisco Bay and Punta Gorda, and as threatened above Punta Gorda to the Oregon border.

The case was brought by the California Forestry Association and others, including the Greater Eureka Chamber of Commerce. The plaintiffs contended that the 2002 and 2004 decisions by the state were an abuse of discretion and unsupported by evidence. They argued that the California Endangered Species Act doesn’t allow listing population segments of a species, as the federal Endangered Species Act does.

But Ohanesian said that there was no further definition of a species or subspecies under the state law, and noted the federal definition.

“The court finds that the concept of ‘species’ is a scientific one, not a matter of common understanding among those not trained in biological science,” Ohanesian wrote.

She also wrote that the record contains a large amount of information that supports that coho has been removed, or is in serious decline, from its entire California range.

Conservation groups who intervened in the case said they hoped the decision would allow industry and environmental interests to work together to restore coho salmon.

“This was a biologically sound decision,” said Tom Weseloh with California Trout. “Now the courts have said it’s not only biologically sound but also legal.”

J Warren Hockaday, executive director of the Eureka Chamber of Commerce, said the board believed that the state listing was duplicative of existing federal regulations. It joined the suit as a show of support for the timber industry, Hockaday said, concerned that some of its members would see significant costs from the state’s actions.

Ohanesian found that the state acted according to its policy because federal protection had not proven adequate to prevent the decline of coho.

The California Forestry Association did not return the Times- Standard’s phone call by deadline.