Comments on the Klamath TMDL

August 21, 2009

Matt St. John                                                                        
North Coast Regional Water Quality Control Board                                  
5550 Skyline Blvd, Suite A
Santa Rosa, CA  95403
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Subject: Comments on the Klamath Mainstem TMDL Water Quality Restoration Plan

General Comments

We are  pleased with and fully supportive of Staff’s efforts in these Draft Water Quality Restoration Plan (“Implementation Plan”) provisions as well as in the supporting Technical TMDL portions of the Draft TMDL generally as set forth in the earlier chapters.  The necessary condition of success is dependent on a strong, comprehensive and fully enforceable Implementation Plan as well as progress in  pollution control on Klamath River tributaries..

The policy foundation upon which these implementation measures are constructed, as well as the Technical TMDL portions of the prior chapters, are both scientifically sound and well constructed.  We also believe the proposed zero load allocations are completely justified given the already highly degraded water quality conditions of the Klamath River today.

Pollutant Sources and Controls

Private forest lands contribute a good deal of sediment to the Klamath River, particularly from the vast network of poorly maintained and legacy logging roads on private lands.  Principle parties are the US Forest Service and the California Department of Forestry and Fire Protection.  

The California Board of Forestry has adopted some construction standards for private lands logging roads, but these standards are frequently not enforced except on a complaint-driven basis.  Compliance with maintenance standards on private logging roads is also very lax, and largely voluntary.  The adequacy of those logging road rules to prevent inflows of sediments and increased frequency of landslides is questionable.  We are also not aware of any systematic effort to inventory private land logging roads within the Klamath basin, and it is likely that no such private logging road inventory and data base currently exists or will exist.

There are several other water quality programs, or programs with water quality implications, in the Klamath Basin already – including the Scott and Shasta river TMDLs and Implementation Plans.

The Klamath TMDL Implementation Strategy should be consistent with:

ESA Recovery Strategy for California Coho Salmon: Klamath Basin coho salmon have been State listed under the California Endangered Species Act (CESA) since August 30, 2002.  On February, 2004, the Fish and Game Commission formally adopted a Recovery Strategy for California Coho Salmon which is now being implemented, and which contains hundreds of measures and goals for coho salmon recovery, many with water quality standards implications

Federal ESA Coho Recovery Plans: The National Marine Fisheries Service (NMFS) will shortly be releasing a draft coho recovery plan for the SONCC ESU which Klamath coho salmon are a part of.  The measures that will ultimately be contained in this federal recovery plan may also have water quality standard implications, and an adopted state TMDL should be consistent with those standards as well as contribute toward coho recovery under that federal plan.

Basin Plan for the North Cost: Including Basin Plan Amendments (Scott River TMDL and Implementation Plan, Shasta River TMDL and Implementation Plan, Basin Plan Anti-degradation language, and any Basin Plan Amendments for stream, wetland, and sediment protections (with prohibitions). 

California Water Code: The Klamath TMDL and Implementation Plan (including Implementing Programs)  must conform to the mandates of California Water Code (as a Basin Plan Amendment/Water Quality Control Plan) and meet the conditions set forth in the Code (including Section 13242 of the Code). 

California Environmental Quality Act: Description of conditions of the Klamath Basin (as environment setting – including tributaries), causal relationships, problem statement, assessment, and remedy (mitigtion/implementation planning) as part of the TMDL process must conform to CEQA mandates. 

Waste Discharge Reporting – Conditional Waivers (for Timber Harvest and Agricultural Land Use)

A review of the Scott and Shasta River TMDLs and Implementation Plan indicates reliance on the use of WDRs and Conditional Waivers for pollution control planning, standards, and actions.  For Timber Harvest and Agricultural land use effects the Implementation Plans of these TMDLs (inclusive of the Klamath River, and tributaries the Scott and Shasta Rivers) is dependent on the language and controls inherent in these WDRs and related Conditional Waivers.  CEQA review and Water Code compliance was dependent on the language these WDRs and related Conditional Waivers.  With the understanding that the Scott and Shasta Rivers are tributaries of the Klamath River and conditions on these tributaries effect the function and impaired condition of the Klamath system in general, it must be assumed that changes to the Implementation Plan (by changing WDR and Conditional Waiver conditions) would have pervasive effects on the whole system. Thus, any changes to the WDRs and/or Conditional Waivers that would weaken the Implementation Planning and/or Timber Harvest and Agricultural land use standards and controls would compromise the TMDL implementation standards that had been relied up to attain Water Quality Standards over time and thus would not be in conformance with Cal Water Code and CEQA.  Such changes would require re-visitation to these respective TMDL Implementation Plans. 

Note: WDR and Conditional Waiver language as mitigation (under CEQA review and in conformance with Cal Water Code)  was a condition of adoption of the Scott and Shasta TMDLs and Implementation Plan as amended into the Basin Plan.  These conditions are considered binding and enforceable. If such WDR or Waiver conditions are ignored or violated, then such a conditions can be legally compelled to be obeyed.  To change the conditions of an approved Implementation Plan (WDR or Waiver) would necessitate that it be amended according to the same process by which it was approved. In this case such changes would require substantiation that any such changes must be equal to or better that the previously applied conditions. 

Implementation language as mitigation is compelled by substantial evidence in the record.  The only way that the State Water Board or Regional Board can legally allow the mitigation to be removed or changed is if it determines that the substantial evidence that prompted the mitigation has somehow disappeared. If a particular mitigation is necessary to control the adverse impacts of a project over a certain period of time and if it is feasible, its implementation is legally mandated.

Any diminished capability in the Regional Board administration of these WDRs and Conditional Waivers (possibly by State Wide WDRs and Waivers as proposed by the State Board) would necessarily effect the potential  effectiveness of any TMDL that relies on these WDRs and Waivers for pollutant control.  Thus the Implementation policy effectiveness of these TMDLs would, and should, be called into question.  Loss of WDR and Waiver utility should bring the approved Scott and Shasta TMDL Implementation language into question. In addition, the Scott and Shasta are Klamath problems.  

Final Report on Sediment Impairment and Effects on Beneficial Uses of The Elk River and Stitz, Bear, Jordan and Freshwater Creeks (Humboldt Watersheds Independent Scientific Review Panel); and (2) Phase II Report: Independent Scientific Review Panel on Sediment Impairment and Effects on Beneficial Uses of the Elk River and Stitz, Bear, Jordan and Freshwater Creeks (Humboldt Watersheds Independent Scientific Review Panel) – and – other studies and scientific review planels document and contain substantial evidence that CDF’s Rules and best management practices fail to protect water quality from the adverse effects of logging.  These documents should be referenced in review and discussion of Implementation Planning (Implementing Programs – inclusive of WDRs and Conditional Waivers).

Stream Flow Maintenance

The State Water Board has not included all of the north coast streams (suffering from diminished flows – from over and inappropriate use, unlicensed use, and changing weather patterns) in their policy considerations for flow maintenance (and beneficial use protection). Low flow conditions exacerbate temperature and other pollutant issues.  Documented in the Klamath River, and Scott and Shasta River TMDLs and Implementation Plan are pollutant effects related to diminished stream flows. The State Water Board should (under State Water Code and other regulatory authority ) take action to protect beneficial uses by imposing standards and regulations to limit wasteful and illegal diversion. These actions are to include minimum flow targets to protect fishery resources and other beneficial uses, stream flow gauges, Water Master, Water Budgets, and gauges on pumps so that use may be documented. All information should and policy process should be open and transparent and available for use by responsible agency and the public. (note: this issue is what is being discussed on the Russian River and other streams in northern California suffering from similar conditions ). 

This issue must be addressed (in reference to conditions in the Klamath River and tributaries) in the Klamath River TMDL and Implementation Plan. 

Suction Dredging 

Suction dredging changes channel conformity and brings up and redistributes sediment (and possibly pollution contaminates).  Such activity is subject to DFG 1600 permitting and should be subject to WDRs and NPDES permitting processes (NPDES due to the fact that this is a point source input of pollutants).   Suction dredging activity must be in conformance with the Basin Plan (including Basin Plan Anti-degradation language). 

Model Boundary

The Klamath River TMDL and Implantation plan is complicated by many factors, including inputs from tributaries and areas of the Klamath River outside the State of California. The State of California (and Region IX EPA) should insist that waters delivered to the boarder of the State of California from Oregon should meet Water Quality Standards.  This requires cooperation and actions from the State of Oregon and regional management by the EPA. 

Mile Stones

Section 13242 of California Water Code require time lines for implementation of actions as part of a Water Quality Control Plan. The Klamath River TMDL and Action plan projects actions to be accomplished at some future date. Compliance for such an implementation schedule should be tracked and mandated – with additional actions to take place if the schedule is not met.  There should be mile stones (or targets) for measurement of trends and efficacy of Implementing Programs – with additional described actions if such miles stones (or targets) are not attained.  Performance and movement towards attainment standards are mandated under this section of the Cal Water Code and by CEQA.  The document should clearly demonstrate how all of this is to be accomplished – with described alternative actions if mile stones or targets are not attained. 


Alan Levine for Coast Action Group 

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

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