Wastewater in pond ruled illegal

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

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)


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


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.

Anderson’s Conflict of Interest on the Regional Water Board

Hi everyone:

For many months I have been receiving information from Alan Levine about the serious conflict of interest issue with Regional Board appointees. The law clearly states that appointees should not receive more than 10% of their income from NPDES permit holders either directly or indirectly. About six appointees have lost their seats in the last two years because of having such conflicts. The most recent was Bev Wasson, who had served for over six years and had been Board Chair for one. It is a shame she lost her seat but we believe the rule is a fair and important one and should be enforced equally and consistently.

Unfortunately some State officials are trying to justify leaving Bob Anderson, lobbyist for United Winegrowers, in his recently appointed position (but not yet confirmed) as Regional Board member. Alan recently circulated many of the activities of United Winegrowers and it clearly indicates their bias in favor of permit holders such as the large vineyards and wineries. He has provided a great deal of information to justify opposition to this appointment.

My group, Russian River Watershed Protection Committee, and myself, and have thought long and hard about taking a public position in this matter. We have decided that it is important to do so. I attach here out letter to State Officials. We urge you to write your own letters, either as individuals, or as groups. You are welcome to use our letter as a template, if you wish, but please use your own letterhead. Or you can simply write that you support our letter, which was mailed two days ago (Five names and addresses appear in the letter). I believe that confirmation occurs sometime in August, so it is important to get something in within the next two weeks or so.

Please feel free to respond to me with questions and/or comments.


Riverissues mailing list

US Supreme Court Rapanos (800kb pdf document)

Anderson’s Appointment to the Regional Water Board

This battle continues:

In a message dated 6/23/2006 8:36:16 AM Pacific Standard Time, alevine@mcn.org writes:

Below and Attached is a letter regarding the appointment of Bob Anderson to the Regional Board and related issues of conflict of interest arising out of Mr. Anderson’s employment – with Cc:’s

Read the letter and think about how Mr. Anderson’s appointment may effect pollution control programs in Region 1 – the North Coast. Then take appropriate action.

——————— Letter

June 20 , 2006

Daniel Maguire
Deputy Legal Affairs Secretary
Office of the Governor
Sacramento CA, 95814

Re: Bob Anderson’s Eligibility to Serve on the North Coast Regional Water Quality Control Board

Dear Mr Maguire,

Thank you for responding to our concerns on this matter. However, we disagree with your findings on issues related to conflicts in the case of Mr. Anderson.

Your arguments about why Mr. Anderson is eligible to serve on the RWQCB are not persuasive. You say (page 1, paragraph 3) “…it is unlikely that Mr. Anderson’s employment will result in a conflict of interest in a significant number of matters.” In your discussion, inclusive of the admission that Mr. Anderson’s income (salary) is passed through a trade association, United Winegrowers, and where the membership of this association includes many NPDES permit holders that have significant concerns related to the implementation of water pollution control programs; you fail to explain why a conflict unlikely.

In the next paragraph (Factual Background) you admit that Mr. Anderson works for United Winegrowers, and that more than ten percent of the association’s dues come from growers subject to NPDES permits. Then later in the document (Trade Association’s and Discussion pp. 5-6) you find that due to the fact that United Winegrowers holds no permit and that Mr. Anderson is not a Board member of the association, nor does he have ownership interest, that the 10% rule does not apply. Do you really mean to say that if one NPDES permit holder employees an agent, that agent will have a conflict of interest, but if a number of NPDES permit holders join together and hire and agent, the conflict magically disappears?

You say (page 2, paragraph 2) “United Winegrowers board of directors sets his salary.” What criteria does the board use in setting the salary? Might it possibly be his effectiveness in protecting Sonoma wine growers’ interests? Might these interests not conflict with protecting overall water quality?


You identify as applicable law 33 U.S.C. 1314 (Section 304 of the Clean Water Act). According to you this statute says, “no board approving NPDES permit applications shall include as a member a person who receives…a significant portion of his or her income directly on indirectly from permit holders or applicants.” Mr. Anderson does receive a significant portion of his income directly on indirectly from permit holders.

There is other applicable law. California law is clear and simple. In pertinent part:

1) Cal Wat Code § 13388
§13388. Notwithstanding any other provision of this division or Section 175, no person shall be a member of the state board or a regional board if he receives or has received during the previous two years a significant portion of his income directly or indirectly from any person subject to waste discharge requirements or applicants for waste discharge requirements pursuant to this chapter.

2) Cal Wat Code § 132207
§ 13207. Member’s personal interest precluding participation in board action; Judicial proceedings for removal from office after violation

(a) No member of a regional board shall participate in any board action pursuant to Article 4 (commencing with Section 13260) of Chapter 4, or Article 1 (commencing with Section 13300) of Chapter 5, of this division which involves himself or herself or any waste discharger with which he or she is connected as a director, officer or employee, or in which he or she has a financial interest in the decision within the meaning of Section 87103 of the Government Code.
(b) No board member shall participate in any proceeding before any regional board or the state board as a consultant or in any other capacity on behalf of any waste discharger.

3) Cal Gov Code § 87103 (2003)

§ 87103. Financial interest

A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following:

(a) Any business entity in which the public official has a direct or indirect investment worth two thousand dollars ($ 2,000) or more.

(b) Any real property in which the public official has a direct or indirect interest worth two thousand dollars ($ 2,000) or more.


As you point out the meaning of “indirect” is not carefully spelled out, but whatever way you want to slice it, numerous NPDES permit holders added together paying their own private organization to pay Mr. Anderson, looks like indirect income to the unbiased eye. As you pointed out in your footnote, it also looks like indirect income in the eyes of the Legislative Council where they found that “employment income from a trade association whose members were permittees does count as income from a permittee”.

According to California Government Code, salary is income.

§ 82030. “Income”

(a) “Income” means, except as provided in subdivision (b), a payment received, including but not limited to any salary, wage, advance, dividend, interest, rent, proceeds from any sale, gift, including any gift of food or beverage, loan, forgiveness or payment of indebtedness received by the filer, reimbursement for expenses, per diem, or contribution to an insurance or pension program paid by any person other than an employer, and including any community property interest in the income of a spouse…
Cal Gov Code § 82030 (2006) in pertinent part [emphasis added].

You say the USEPA’s general counsel drew a distinction between salaried employees versus persons with an ownership interest. This is less to the point that what the USEPA had to say about the Clean Water Act/Porter Cologne Act 10-percent Rule for NPDES Conflicts:

USEPA guidance in February 14, 1973 addressed numerous issues related to the conflicts rule:
Memorandum from John R Quarles, Jr (USEPA General Counsel) to All Regional Counsels re Conflict of interest Provisions:
“It may be argued that such persons should not be disqualified if they have no connection with the management or operation of discharging facilities or budgetary decision-making that would affect such management. The conflict provisions makes no such distinction, however, nor can such a distinction reasonably be implied.”

The USEPA counsel have maintained that the Clean Water Act’s conflicts provisions are intentionally broad and cite the following excerpt from the Clean Water Act’s legislative history:
“Indeed, the only legislative history discussing this provision evidences the intent for broad application of this provision. In statements made during a House debate on the conference bill, Congressman Dingell stated that the intent of the conflict of interest provisions was to:
‘…wipe out industry representation on any water pollution control board or similar body that has anything to do with issuing, denying or conditioning permits…Even one such representative shall not be allowed because of the potential that the board will consider permits of which he has an interest.’” 1 Leg. Hist. 251

Applying the above principles, the income Mr. Anderson receives from United Winegrowers disqualifies him from sitting on the North Coast RWQCB.


There is no denying the existence of conflict. Mr. Anderson is the agent of permit holders. He is employed to, and acts to, protect their interests. He sits on the regional water board to protect winegrowers’ interests.

There is no explanation, from your office, regarding how it is possible for a person, in the position of Mr. Anderson, to fulfill his obligation to protect the interests of United Winegrowers, and its members, and at the same time protect the interests of the citizens of the State of California and California’s Water Code and clean water programs.

You have stated, as a Board Member and considering his employment with United Windegrowers, Mr. Anderson must be sensitive to potential conflicts and recuse himself from deliberations in certain circumstances.

Mr. Anderson will find himself considering Waste Discharge Reports, Conditional Waivers from Waste Discharge Reporting, NPDES Permits for entities, Enforcement Actions, Cleanup and Abatement Orders, and Basin Plan Amendments. All of the aforementioned actions can, and will, have affects the operations of members of United Winegrowers. We would like disclosure (as a policy statement) on just what type of actions and deliberations that would require recusal on the part of Mr. Anderson.


For Coast Action Group

Cc: Governor Arnold Schwarzenegger
Att: Appointments Secretary
State Capitol
Sacramento, CA 95814

Senate Natural Resources and Water Committee
Att. William Craven
State Capitol, Room 407
Sacramento, CA 95814

Office of Chief Counsel
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812

Attorney General’s Office
California Department of Justice
Attn: Public Inquiry Unit
P.O. Box 944255
Sacramento, CA 94244-2550

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

Phone: Week Days 707 542-4408
Weekends 707 882-2484