Comment Letter on Laguna’s 303 (d) Listing

Nancy Kay Webb
Attorney at Law
126 Steiner Court,
Santa Rosa, CA, 95404

September 21, 2006

Craig J. Wilson, Chief
Water Quality Assessment Unit
Division of Water Quality
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812-0100

SUBJECT: 2004 Clean Water Act Section 303(d) List
Laguna de Santa Rosa Phosphorus & Nitrogen

Dear Mr. Wilson,

On behalf of the following local organizations:

Coast Action Group, Pacific Coast Federation of Fishermen’s Associations, California Trout, Friends of the River, Russian Riverkeeper, Russian River Watershed Protection Committee, Redwood Chapter Sierra Club, Community Clean Water Institute, Petaluma River Council, Friends of the Eel River, Blucher Creek Watershed Council, Sebastopol Water Information Group.

I want to thank you and the State Water Resources Control Board for your work on the current 303(d) list.

Our comments consist of wholehearted support for the continued listing of the Laguna de Santa Rosa listing as impaired for excess nitrogen, phosphorus, sediment, temperature and low dissolved oxygen (DO).

The scientific data on the record shows that the Laguna is a severely impaired waterbody. High nutrient levels are adversely affecting the Laguna’s beneficial uses. All sampling data indicates nutrient levels grossly exceed levels acceptable for swimming (REC-1) The nutrient levels, with associated eutrophication and associated low DO, are sufficient to limit fishery migration, survival, and incubation (REC-2 and COLD).

The high nutrient levels in the Laguna fuel the growth rate of algae and invasive aquatic plants like Ludwigia hexapetala (Ludwigia). The huge Ludwigia infestation in the Laguna constitutes an expensive nuisance as well as a health hazard by providing breeding habitat for mosquito species that transmit West Nile Virus.

The listing of the Laguna segment of the Russian River for biostimulants will go a long way towards protecting and restoring beneficial uses and is consistent with the Clean Water Act Section 303(d).

Sincerely,

Nancy Kay Webb, Esq.

INTERESTED PARTIES / SIGNATORIES TO LETTER

Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468
(707) 542-4408

Pacific Coast Federation of Fishermen’s Associations (PCFFA)
California Contact: Vivian Helliwell
PO Box 11170
Eugene, OR 97440-3370
(707) 445-1976

Thomas J. Weseloh, Northcoast Manager
California Trout
1976 Archer Rd.
McKinleyville, CA 95519
(707) 839-1056

Steven L. Evans, Conservation Director
Friends of the River
915 20th Street
Sacramento, CA 95814
(916) 442-3155 x221

Don McEnhill
Russian Riverkeeper
PO Box 1335
Healdsburg, CA 95448
(707) 433-1958

Brenda S. Adelman, Chair
Russian River Watershed Protection Committee (RRWPC)
P.O.Box 501
Guerneville, CA 95446
(707) 869-0410

Margaret Pennington, Chair
Redwood Chapter Sierra Club
PO Box 466 SR, CA 95402
(707) 829-2294

Mike Sandler, Program Coordinator
Community Clean Water Institute
6741 Sebastopol Ave. Suite 140
Sebastopol, CA 95472
(707) 824-4370

David Keller, Director
Petaluma River Council
1327 I St.
Petaluma, CA 94952

David Keller, Bay Area Director
Friends of the Eel River
PO Box 2305
Redway, CA 95560

Jeannette Baumgardner, Chair
Blucher Creek Watershed Council
2100 Blucher Valley Rd.
Sebastopol, CA 95472
(707) 829-1452

Jane Nielson
Sebastopol Water Information Group (SWiG)
3727 Burnside Road
Sebastopol, CA 95472
(707-829-9393).

Letter to SR Council on NPDES

Dear Council:

The jungle drums are telling me you are thinking of appealing and or
litigating your new waste water permit.

This permit was a compromise in your favor. I would be careful about
re-opening the issue.

I can easily be argued that the permit is not restrictive enough and not
compliant with both the federal Clean Water Act , Porter-Cologne, and the
Basin Plan for the North Coast.

The permit allows the City to comply – over time – with limits that you can
easily meet. And – to develop you own monitoring plan.

The Basin Plan says that additional inputs of pollutants from controllable
sources – must be limited to zero. It this were to happen – you all will
have a very difficult time meeting that standard – plus other standards
that have not been met by the NPDES (i.e. no numeric limits for phosphorus).

I am thinking you will not listen to this warning. Proceed at your own risk.

The money that you have, and will, spend trying to evade your
responsibility to the state’s waters (Santa Rosa Creek, the Laguna, and the
Russian River) would do more good working for solutions.

Alan Levine

Comments and questions:

Excellent letter and advice to the City Council.

I am having some difficulty tracking the point of paragraph 5, concerning “additional inputs from controllable sources”. I would appreciate a short explanation as to how that would work.

Thanks in advance.

Len Holt

Good question Len.

This question is at the center of the issue of pollutant inputs and Impaired Waterbodies – including some recent changes of emphasis in the Basin Plan and what might be argued to support a stronger NPDES permit for the City of Santa Rosa discharges.

Staying up on the quality issues is just as important as watching the supply side issues. They are linked in our goals.

In the Basin Plan there is Anti-degradation Language. In part this language is taken from the Clean Water Act. The language is in the Basin Plan as follows:

Basin Plan Anti-degradation Policy: “Controllable water quality factors shall conform to the water quality objectives contained [in the Basin Plan]. When other factors result in the degradation of water quality beyond the levels or limits established [in the Basin Plan] 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.”

Pollutants from the SR Waste water plant that are delivered to the Laguna are controllable and are linked to the existing degradation. Interim (pre TMDL) permitting should not allow additional pollutants to be delivered.

The City’s NPDES permit allows ratcheting down some pollutants – over time. It also allows the delivery of pollutants in excess of what should be permissible. We will have to push the opposite direction of the City’s appeal. The City says it wants out of the Laguna. But, they also say they want to pollute there.

Santa Rosa Water Management Comments

Santa Rosa Creek (and tribs) is a mess. The waterbody is listed as impaired for pathogens, temperature, sediment, nutrients, etc.. Not much is going on, in the case of the City, in terms of restoration and/or protect beneficial uses by limiting pollutant inputs. This problem exacerbates conditions on the Laguna – which intern compromises with the City’s waste water NPDES permit.

The City’s Stormwater Ordinance and implementation program is out to lunc (ineffective and not be enforced). This adversely influences the problems mentioned above.

My suggestions to start to initiate remedy (areas where the City can start working )are:

* Put more toilets where indigent folks can have access and not poop in the Creek(s).

* Do better enforcement on storm water issues.

* Initiate an education and enforcement program for dog poop control

* Do more waste water recycling for irrigation. This suggests less need for nutrients to support plant growth as the recycled water is nutrient rich.

* Ask SR residents, via an education program, to use less nutrients for lawns and gardens

* Work with, and/or comment on, Sonoma County programs (i.e. GP 2020) where the County has jurisdiction on responsibility for activities that effect Santa Rosa Creek and Laguna resources.

* Get expert opinion for basis in Santa Rosa Creek (and tributary) activities that would provide protection and restorative process.

Finally: The Laguna ( and Russian River) TMDL will indicate activity necessary to comply with beneficial uses protection for Santa Rosa Creek as well as the Laguna. Consultation with the Regional Board staff to address issue will be necessary. It would be wise to start this process immediately so as not to waste money and resources.

Alan Levine

SR Urban Water Reuse Project Update

In case you did not see this summary (by Anne Seeley) of Santa Rosa’s BPU UWRP meeting on Tuesday, .. and there was an interesting follow up that I’ve included below.

Rue

—————————-

The Santa Rosa City Council study session today was billed as an update on the Urban Reuse alternative of the Incremental Recycled Water Program (IRWP).

Dr. David Smith, a consultant, presented information about the wastewater side of the equation. He identified 2200 Million gallons per year additional need for reclaimed water disposal by 2020.
Virginia Porter described the water supply side, saying that if no additional water supply comes on line by 2017, the calculated “mid-point supply will run out.” Dick Dowd later said that the option of using Lake Sonoma water had been found to be incredibly expensive.
There were lots of graphs and details, but what I want to tell you about is BPU Chairman Dick Dowd’s declaration. He said that he has reached the understanding that with the conversion of the factors of increased water supply needs and increased wastewater production, the only answer he sees is the successful implementation of an urban reuse program. And, he said, we’d better get busy now in investing in the infrastructure.
Each quadrant of the city is projected to cost about $110 million, in order to build just the main trunks to supply irrigation water. Some policy assumptions are: existing users may or may not connect with the new lines, but new construction will be required to; the target is non-single family irrigation water use; demand (hook-up) fees should be equal to potable water demand fees; and the user rate structure should reflect the value of the resource.
Chairman Dowd made the point that we have partners in the wastewater system in whom we must create cooperation and a level playing field. I suggested that Rohnert Park would benefit from using some of the formerly identified storage sites east and south of that city to serve their program. He said they’d be looking everywhere for storage.
Brenda Adelman countered some of the assumptions made about future wastewater production, observing that flows in this very rainy year didn’t match future assumptions about wet weather years. She recommended a combination of increased conservation, a much accelerated I&I program (replacement of sewer pipes to prevent inflow and infiltration), and increased flow to the Geysers. Dowd countered that the BPU had concluded that the I&I program would cost $600 million and would take 20 years. We’re now spending $7 to $10 million a year for replacement.
The EIR process has been announced for the Urban Reuse Project.

And a note from a recent PD article that followed:

Ben Stone, coordinator of the county’s Economic Development Board, said his office would convene a private industry task force to translate the meaning of “sustainability” for individual businesses.

“It challenges our assumptions that there will always be water when we turn on the tap,” Stone said. “Our local economy has been on cruising speed for 20 years, and yet the work force is changing, our water supply is running out and our landfill is so full we are hauling out our garbage.”

Stone said the task force should consider such scenarios as the wine industry’s being affected by ground-water depletion, labor shortages and shifting consumer tastes.

“This should be a point of reflection on our major assumptions,” Stone said. “If they reach the point of rationing water, how exactly are the businesspeople going to react before they hit the red panic button?”

Read the Full article at the Press Democrat

Public Comment on 303 (d) Listings for Northcoast Waters

The public is invited to comment on the proposed 2006 Clean Water Act section 303(d) list of water quality limited segments. The revised list and supporting documents are posted at:

http://www.waterboards.ca.gov/tmdl/303d_lists2006.html

Public comments will be accepted until October 20, 2006 (5 PM). The State Water Board will consider approval of the list on October 25, 2006. For additional information, please see the attached document.

This is a message from the State Water Resources Control Board.

City of Santa Rosa NPDES Outcome

The Regional Board Staff – Charles Reed, John Short, and sheryl Shaffner did a very good job of presenting and defending their proposed permit.

Doug Eberhardt (EPA) and Mike Lozeau did a excellent job representing issues and limitations related to the permit.

The NPDES was adopted by the Board, in total, and then ameded with the following exceptions related to the three basic outstanding issues:

1) Monitoring at point of discharge – The City of Santa Rosa may submit an alternative monitoring plan within 180 of adoption of the permit. The RB EO has 90 days to accept, reject, or work out modifications of any proposed alternative minitoring plan. Then, the City must implement in 90 days.

2) Sanitary Sewer Overflows prohibition – remains in the permit in original form

3) Biostimulant Limitations – Revision of language with Alternative (g) – reopening language

(g) The Discharge can complete a study justifying alternative final numerical limitation that demonstrates, if alternative limitations are allowed, will not violate recieiving water standards – violate water quality objectives for the Laguna. The RB can reopen the order and make modifications.

(g) Existing water quality effluent limitations for biostimulants will stand. Such limitations may be adjusted by TMDL findings. “No net loading” effluent limitations can be met by; 1) reducing effluent concentrations, 2) reducing loads through recycling, 3) reducing loads by offset trading with other sources. This reopener is attached to the completion of the above mentioned study.

4) The Board gave staff direction to start moving on the TMDL for the Laguna. This may settle or adjust some issue.

Thus, the future of the NPDES is attached to the TMDL for the Laguna and the Russian River

In the interim, mass loading limits are in force. I am not sure about the final limitation. Historic inputs of 270,000 pounds of N and 48,000 pounds of P seem like a lot – while the City of Santa Rosa continues to deny that nutrients are impacting the Laguna. Under the NPDES permit, compliance with Water Quality Objectives are mandated to occur in 5 years. The EPA may agree with the above noted changes – or – they may indicate and require some changes.

Alan Levine

Big Win for Joy Road THP Lawsuit

This case is a blast from the past – and on into the future. “Hey, Hey, My, My, Rock and Roll Will Never Die”.

For many years the public and some Review Team Agency have complained that the CDF THP Review policy was did not comply with CEQA mandates. This case supports that position and establishes law that will affect the THP Review process (THPs, NTMP, NOIs, etc.) and also the application of CEQA standards to Neg. Decs. and EIRs.

This ruling will effect: THPs, NTMPs, NOIs, EIRs (Sonama County GP EIR 2020), Conversion of forestland to vineyard use, and all CEQA functional equivalent processes (TMDLs and Action Plans, other Water Quality Control Plans), DFG 1600 permitting processes, and Water Rights adjudications. .

Read the case (attached) – Outlined Review of issues below:

This case involves a Timber Harvest Plan, written by Scott Butler, that was originally returned for 35 problems and inconsistancies, and then later re-filed. THPs have often presented problems for the public as a constantly moving target, where substantial changes are made and pages changed or added (27 pages in this case) – after the initial noticing.

Noticing – Public Notice

CDF argued that CEQA noticing rules do not apply to the Forest Practice Act – THP Review process.

The Court found that re-niticeing is mandated, under CEQA, if new information is added to the file or the file is substantially changed – including the replacement of pages or adding maps

In this case the Court found: 1) Significant new information was added to the file – requiring re-noticing, 2) Where CDF claimed Fog Drip to be not a significant factor, evidence in the file disagreed – not substantial evidence to support CDFs conclusion and discussion added to the file – after the fact, 3) No evidence in the file to show that the consideration of future development in the area of the project warranted discussion in project Alternatives.

Forest Practice Act: To maintain productive timberlands, review project environmental effects – complying with CEQA, giving considerations to other factors.

Alternatives – Project Alternatives discussion must be inclusive of the full array of feasible alternatives.
This case left out effects, cumulative effects, related to development.

The Court ruled that CEQA applies to every aspect of the Forest Practice Act that is not specifically exempted by legislation.

CDF claims that it can not comply with CEQA, as a THP is a “dynamic” (as apposed to static) document.

The Court said that now Review Action precludes compliance with CEQA. The dynamic state state of a THP ( any changing CEQA document) and amendment to the original project, creating a substantially different project, necessitates re-noticing. Re-noticing assures the publics ability to comment to the “actual” project. A Certified Regulatory Program must comply with CEQA 30 day noticing.

Fog Drip

The Court found that there was no evidence to support CDF’s conclusion that loss of fog drip inputs into ground water, and water supply, were insignificant. Other evidence in the file noted loss of water supplied by Fog Drip (Wickham letter) and potential effects on ground water supply in a known water poor area.

Fair Argument – The Court also discussed the “Fair Argument” standard – related to public input. That this was a important issue, under CEQA, where the public raised the issue of Cumulative Impacts related to the issue of subdivision and building, future projects. That this issue needed to be addressed.

Substantial Evidence – includes: Enough relevant information (substantial evidence) reasonable reference from information added to the file that ‘”Fair Argument” can be made to support concluclusion(s) – even though other conclusions might be reached. Substantial Evidence includes facts, reasonable assumptions based on fact, and expert opinion supported by fact.

CDF did support argument with facts and professional opinion, but did not address the fog drip problem under Cumulative Impacts – and – the public was not allowed to comment on these findings as they appeared after the THP was approved. There was no public access to the necessary information as argument was added to the file late – after the fact.

The Court said that the sufficiency of an Official Response can be grounds to attack THP Review on the grounds of abuse of discretion.

Future Development – Water use and supply

The Court said that the THP must consider all Significant Environmental Impacts – regardless of whether those impacts would be attributable to the project or not

Northern Spotted Owl

Data, Survey, mapping — this information needs to be loaded into a THP in a way that the public can review and comment on – as should all pertinent data and info.

Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468

Victory for Water and Forest Issues

Dear all, The court of appeal has published the Joy Road decision  The
Sierra Club filed an amicus with financial help from all of you and more.
It is a big, big victory on a number of important issues.  For you, like
Helen, who have complained for so long about CDF’s habit of changing the
project as it goes along, it will have special significance. I’ll write some
more about its implications when I get a chance.  For now, it can be found
at http://www.courtinfo.ca.gov/opinions/documents/A105421.PDF.  Enjoy!  Paul

Alan Levine
Coast Action Group