STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING REVISION OF CALIFORNIA'S CLEAN WATER ACT SECTION 303(d) LIST OF WATER QUALITY LIMITED SEGMENTS THURSDAY, MAY 23, 2002 9:00 A.M. CAL/EPA BUILDING COASTAL HEARING ROOM SACRAMENTO, CALIFORNIA REPORTED BY: ESTHER F. SCHWARTZ CSR 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES 2 3 STATE WATER RESOURCES CONTROL BOARD: 4 ARTHUR G. BAGGETT, JR., CHAIR PETE SILVA 5 STAFF: 6 CRAIG J. WILSON 7 MELENEE EMANUEL LAURA SHARPE 8 COUNSEL: 9 MICHAEL LEVY 10 ---oOo-- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2 1 COMMENTERS 2 GENERAL COMMENTS: 3 DAVE SMITH STEVEN ARITA 4 CRAIG JOHNS ROBERTA LARSON 5 LENA BROOK JEAN CHEI 6 REGION 1 COMMENTS: 7 DEBBIE WEBSTER 8 DAN CARLSON DAVE SMITH 9 BRENDA ADELMAN JOE DILLON 10 DANIEL MYERS 11 MATTOLE RIVER: 12 MARY ETTER SALLY FRENCH 13 STERLING MCWHORTER VALERIE STANSBERRY 14 GUALALA RIVER: 15 CRAIG BELL 16 ALAN LEVINE VIVIAN BOLIN 17 CHRIS POEHLMANN 18 REDWOOD CREEK: 19 TOM HERMAN RICHARD GIENGER 20 CHARLES CIANCIO BERNIE BUSH 21 TOM WESELOH 22 REGION 2: 23 DAVID TUCKER RAY ARNOLD 24 JONATHAN KAPLAN STEVE MOORE 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 3 1 SACRAMENTO, CALIFORNIA 2 THURSDAY, MAY 23, 2002, 9:00 A.M. 3 ---oOo--- 4 CHAIRMAN BAGGETT: Good morning. This is the time and 5 place for the public hearing by the State Water Resources 6 Control Board regarding proposed 2002 update of the federal 7 Clean Water Act Section 303(d) list. This is the first day 8 of three days of planned hearings on this update. Hearings 9 are to be held today and tomorrow in Sacramento and the 10 third day of hearing in Ontario on Thursday, May 30th. 11 The purpose of this hearing is to solicit comments on 12 the draft staff report entitled Revisions of the Clean Water 13 Act Section 303(d) of Water Quality Limited Segments, dated 14 April 2nd, 2002. 15 I'm Art Baggett, Chairman of the State Water Board. 16 With me is today is Vice Chair Pete Silva. I would like to 17 introduce, who is primarily responsible for the 3039(d) list 18 review and who will be assisting the Board in this hearing, 19 Craig J Wilson from the Division of Water Quality, Melenee 20 Emanuel and Laura Sharpe, and from the Office of the Chief 21 Counsel, Michael Levy. 22 The order of procedure will be a brief staff 23 presentation, then testimony from interested parties by 24 Region. First we will start with general comment and then 25 by Region and by water body. Please be sure to indicate on CAPITOL REPORTERS (916) 923-5447 4 1 the card the Region and the water body that you want to 2 focus on. If you have not filled out a card and would like 3 to speak, let your staff know and you can fill it out and 4 bring it up. 5 The hearing will not be conducted in accordance with 6 technical rules of evidence. We will accept any testimony 7 that is reasonably related to the 303(d) list review. 8 Written and oral comments are all put on our record. If 9 need be, the State Board and staff may ask questions to 10 clarify the testimony presented. 11 To expedite today's proceeding, we would like to limit 12 oral presentations to no more than five minutes. If the 13 speaker before you has addressed your concerns, if you could 14 just state your agreement and avoid repeating the testimony, 15 we'd certainly appreciate it. We do have a pretty good 16 stack of cards already. 17 Today's hearing will focus on comments pertaining to 18 the following sections of the report: 19 The North Coast Regional Water Quality Control Board, 20 San Francisco Bay Regional Water Quality Control Board, and 21 the Central Coast Regional Water Quality Control Board. 22 Testimony will not be limited to these sections, so 23 feel free to discuss any aspect of the proposed list. 24 The administrative record for this hearing will remain 25 open June 15th of 2002. Following the close of the record CAPITOL REPORTERS (916) 923-5447 5 1 staff, the State Board Staff will review and respond to all 2 comments in writing. Written responses will be included in 3 the final staff report. Any substantive changes made as a 4 result of comments received will be presented in a revised 5 staff report. The revised staff report will be made 6 available to interested parties before the final 303(d) list 7 is considered for adoption by the State Board. 8 Before giving your testimony if you would please 9 identify yourself and your affiliation, it would be helpful 10 to the court reporter and to us also. 11 Craig. 12 MR. C.J. WILSON: Thank you, Mr. Baggett. 13 My name is Craig J. Wilson. I am chief of the TMDL 14 Listing Unit in the Division of Water Quality. In my 15 presentation I would like to give you a brief overview of 16 the requirements of Section 303(d) and a summary of the 17 steps we have taken to develop a new list. 18 Section 303(d) of the federal Clean Water Act requires 19 all states to identify and prepare a list of waters that do 20 not meet applicable water quality standards with 21 technology-based controls alone. This list is commonly 22 called the 303(d) list. According to federal regulations, 23 the 303(d) list must be updated even numbered years. The 24 last update took place in 1998. The 2000 update was 25 exempted by federal regulation, and the current list is due CAPITOL REPORTERS (916) 923-5447 6 1 for submittal to the U.S. Environmental Protection Agency by 2 October 1st of 2002. 3 The 303(d) list must identify each water body not 4 meeting standards and responsible pollutants. Priority 5 rankings must also be assigned to each listed water body. 6 These rankings identify the priorities for the development 7 of Total Maximum Daily Loads, or TMDLs. A TMDL is an 8 allocation of pollutant loads to point and nonpoint sources, 9 including natural background sources and margin of safety. 10 The state's Porter-Cologne Water Quality Control Act 11 requires TMDLs be adopted as Basin Plan Amendments and that 12 a program of implementation be included. 13 In March of 2001, the State and Regional Boards sent 14 solicitation letters to government agencies and other 15 interested parties on their mailing. These letters 16 requested recipients to submit any available surface water 17 quality data and information to the appropriate Regional 18 Board. The information that was received in response to 19 these solicitation letters, as well as other information 20 already available to the Regional Boards, was used to assess 21 water bodies for the 303(d) list update. 22 Regional Board staff prepared draft staff reports 23 and/or fact sheets that contained assessments of each water 24 body. These Regional Board documents were made available 25 for public comment, and each Regional Board held public CAPITOL REPORTERS (916) 923-5447 7 1 workshops or Board meetings where their recommendations for 2 revision of the 303(d) list were considered. The Regional 3 Boards then proposed their recommendations to the State 4 Board. 5 Based on review of the Regional Board recommendations, 6 State Board staff are proposing a number of additions, 7 deletions and changes to the 1998 303(d). The staff has 8 developed a Draft Staff Report that contains our 9 recommendations for changing the list. The draft report 10 contains a description of the methodology and assumptions 11 used to develop the State Board staff recommendations. The 12 assumptions used in preparing the draft report were: 13 One, the 1998 303(d) list would form the basis of the 14 2000 list update. Two, the Regional Board recommendations 15 to change existing listings would be considered by the State 16 Board. And three, if insufficient information was available 17 to list a water body, it would be placed on the watch list. 18 Listed water bodies are ranked in a high, medium and 19 low priority categories for TMDL development. These 20 priorities are assigned based upon the significance of the 21 water body, the degree of attainment of standards or loss of 22 beneficial uses, and the availability of funding, and the 23 overall need for an adequate pace for developing the TMDLs. 24 To summarize the State Board proposal, there are 797 25 total recommendations in our staff report, including 195 CAPITOL REPORTERS (916) 923-5447 8 1 additions to the list, about 70 delistings and 31 changes or 2 clarifications to the existing listings. There are also a 3 177 waters recommended for the watch list. 4 So, in conclusion, we are looking forward to the 5 testimony that will be presented in this hearing, and I know 6 that these comments will ultimately strengthen our 7 proposal. 8 One more point, on May 15th, the State Board staff 9 issued -- sent a letter to interested parties reopening or 10 extending the solicitation of water quality data 11 information. So we are accepting all new information until 12 June 15th when the hearing record will be closed. 13 This concludes my presentation. If you have any 14 questions now, I would be happy to answer them. 15 Thank you. 16 CHAIRMAN BAGGETT: Thank you, Craig. 17 With that, we have six cards of general comments, and 18 then I have one from Region 2. 19 John Kaplan, are you general comments or general Region 20 2? 21 MR. KAPLAN: Region 2, please. 22 CHAIRMAN BAGGETT: Then we'll wait. We have some broad 23 comments. We will start out with these. And then just to 24 give you an idea, we have 16 cards just from the Region 1. 25 Again, if I can emphasize, if you agree with someone let us CAPITOL REPORTERS (916) 923-5447 9 1 know. It gets into the record and carries the same weight, 2 if you are just going to restate testimony already given. 3 Help us out, just so indicate. 4 Start out with general comments. 5 Dave Smith, Region 9. 6 MR. SMITH: Good morning, Chairman Baggett, Board 7 Member Silva. I am Dave Smith, and I am with the USEPA in 8 San Francisco. 9 I appreciate the opportunity to testify. As you know, 10 we submitted lengthy comments about the proposed decision, 11 and I am going to repeat those comments here. I want to 12 highlight a few areas where we believe there are some issues 13 of concern that need to be addressed, and I want to 14 emphasize we already having very productive discussions with 15 your staff about the different options for addressing the 16 concerns that we have raised. 17 I want to emphasize today that we are very pleased with 18 the direction the state is going with this listing process. 19 This is a huge improvement, in our view, over the process 20 that was followed in prior years, both in terms of process 21 and quality of analysis that has gone into it in virtually 22 every case. And we think this will result in a set of 23 decisions that are stronger and provide a better base for 24 the development of TMDLs. It is good to see that the state 25 really understands the magnitude of the decisions before CAPITOL REPORTERS (916) 923-5447 10 1 you. 2 We want to stress that the state's approach of 3 carrying overpass listings unless there was new data or 4 information to support a change is sound, and we think it's 5 been upheld in other states and in past listing decisions. 6 Although there have been some legal challenges to the past 7 listing decision, none of those have been sustained in 8 either state or federal court. So we think you are on sound 9 footing to proceed on that basis. That makes particular 10 sense while you are developing the statewide listing policy 11 that may provide a basis for a more systematic analysis of 12 all the waters in the state when the state next reviews a 13 303(d) listing decision. 14 We do support the vast majority of the changes that 15 have been proposed. I want to highlight a few examples 16 where we do think there are issues. I think it reduces to 17 perhaps to two or three dozen waters where we think that 18 decisions proposed may be in error and may need to be 19 changed. And we are very hopeful that we can work out those 20 very few differences of views so that we can be in position 21 to fully approve the state submission this fall. 22 Let me highlight just a half dozen issues that we do 23 think need to be addressed. Overall there is a need for 24 improved documentation of the basis for decisions on certain 25 waters. The approach of doing it water body by water body CAPITOL REPORTERS (916) 923-5447 11 1 through the fact sheet approach makes sense. But since the 2 state doesn't have a cross-cutting methodology, it really 3 enhances the need to have clearly explained decisions for 4 each water body. And we think there is enough time and 5 enough resources to provide better documentation for those 6 waters where the existing proposed documentation is too 7 thin. Again, we can work with the staff to figure out the 8 level of documentation that is really needed here. It is 9 quite likely that we will be ending up in court, either 10 state court or federal court concerning this decision, so it 11 is very important that we have a really strong record if 12 that happens. Hoping it won't. 13 Second, there are some apparent inconsistencies in how 14 individual waters were treated. That is bound to happen 15 when you are looking at hundreds and hundreds of independent 16 assessments by nine separate regions, and, again, the State 17 Board looking at it as well. So I think it is really to try 18 to either reconcile those inconsistencies or explain them 19 better. And we think that can be done in most cases. 20 We are concerned that we think that the listing test 21 requires for some waters were probably too stringent and 22 exclusive, and we are concerned about the assessments that 23 were done possibly in Region 3, the Central Coast Region, as 24 well as the Region 8, the Santa Ana Region. I think it may 25 be a matter of just understanding better how waters were CAPITOL REPORTERS (916) 923-5447 12 1 assessed in those regions to help figure out whether the 2 waters were assessed inconsistent with how water quality 3 standards are written. 4 Our comment letter goes into a lot more detail in those 5 issues. 6 We support the concept of using a watch list. We 7 think that is the importance to explain why waters were 8 placed on the watch list in a little bit greater detail than 9 the proposed report provides. And also there is some waters 10 that didn't end up on any list, but for which data was 11 provided. We think it is very important to show how those 12 data and supporting information were considered and why 13 those waters don't belong on the 303(d) list or the watch 14 list. 15 On number of waters that I think are impaired were 16 proposed to not be listed because other control programs may 17 be in place or planned, and that is a concept that can work, 18 but it is very important to show that those other programs 19 are actually in place and working or will be working very 20 soon. And so, in essence, we applied a fairly stringent 21 case in looking at a proposal to not list an impaired water 22 based on the reliance of another control program. There are 23 20 listings in that category around the state, and we will 24 be working with your staff to take a very hard look at the 25 basis for not listing those kind of waters. CAPITOL REPORTERS (916) 923-5447 13 1 Finally, we believe that the state is doing the things 2 that are the required minimums, but we would note that our 3 national policy is the state should update their entire TMDL 4 schedules either with their 303(d) listing decisions or 5 about the same time. And so we hope that the State Board 6 takes up the development of more comprehensive schedules for 7 all the waters on this list very soon after the final list 8 is established. We think that is very important to just 9 provide the assurance to the community, to the Legislature 10 and to all the concerned parties about when individual TMDLs 11 will come up and to show that the state really is carrying 12 out this program in accordance with the law. 13 I do want to end with accentuating the positive. I 14 think you have the foundation of a good decision here, 15 little bit of fine-tuning to do. There is going to be some 16 hard decisions before you with a lot of different 17 viewpoints. But the structure that is before you is sound 18 and gives you what you need to make a good decision. 19 We ask you to go ahead and make those tough calls so we 20 can get a submittal in here this year sometime before the 21 planned October 1st, and a decision that we can approve, 22 because that is really the way this should work. 23 I would be happy to answer any questions about my 24 remarks or comment letter. 25 CHAIRMAN BAGGETT: Do you see any increased funding CAPITOL REPORTERS (916) 923-5447 14 1 coming out of the office? As you know, that is our big 2 challenge. The state budget is not obviously going to help 3 us, and you are asking us to have more detail and to do 4 things faster. And we have already committed, as you know, 5 more than any other state probably than all the states 6 combined with general fund revenues into our TMDL program in 7 this state. 8 MR. SMITH: I wish I can say that there is going to be 9 an increase in federal funding. I don't know whether that 10 will happen or not. I do know that we currently provide 11 more EPA funding that is earmarked for TMDL California than 12 any other state. And to sort of put the level of investment 13 in perspective, California has less than 5 percent of the 14 TMDLs that need to be done nationwide, and almost 25 percent 15 of the total resources in the national TMDL program. 16 I don't want to say that that is enough to do 17 everything the way we'd like to do it, but I think that we 18 are perhaps not as cash poor as it may seem in California. 19 CHAIRMAN BAGGETT: We are also spending, as you know, 20 what the other states aligned are spending exponentially 21 more per TMDL than any other. Our state's much bigger. 22 Maybe it is looking at the physical size of the state 23 compared to Rhode Island. It's hard to compare the length 24 of the reach -- 25 MR. SMITH: I know what you are saying. CAPITOL REPORTERS (916) 923-5447 15 1 CHAIRMAN BAGGETT: The San Joaquin River is more 2 significant than most of these little rivers back East. 3 MR. SMITH: I am not going to speak for them. I think 4 we would all agree it would be good to have more resources 5 in the program. I don't think it is realistic to expect it 6 in the near future, and it may mean rather than just cutting 7 back on our pace of development that we try to find smarter 8 ways to do the TMDL, in some cases more modest levels of 9 investment. That is something we have to work out a kind of 10 watershed-by-watershed basis. 11 CHAIRMAN BAGGETT: I guess what I would ask that you 12 take back to Region 9 is maybe we need to look at it more in 13 a triage approach or priority, reprioritize how we are going 14 to deal with these and which ones are the most significant. 15 And let's do them -- I would rather just do the ones we are 16 doing and do them right. We can sort of marginally do lots 17 of them, or else we can do a few of them and do them right 18 and get something done and really impact the quality of the 19 water in that watershed. 20 MR. SMITH: I think there is a lot of programs 21 reprioritize how the work is being organized. I'll mention, 22 for example, in Los Angeles, the Los Angeles Region, where 23 we, because of the consent decree there -- 24 CHAIRMAN BAGGETT: I understand. 25 MR. SMITH: -- have a consent decree. CAPITOL REPORTERS (916) 923-5447 16 1 We are trying to streamline the development process, do 2 more of the pollutants within a watershed at the same time, 3 both applies to the stakeholders who have asked for that, 4 but also because it's, I think, a more cost-effective way to 5 carry this out. Certainly avoids the burden of having to do 6 multiple Basin Plan amendments, where you might be able to 7 do one larger Basin Plan amendment at less cost. I just 8 think we need to explore those kinds of thing and that they 9 will help, but not fully solve this dilemma. 10 CHAIRMAN BAGGETT: I would agree. I think I stated 11 today we had the L.A. trash TMDL. I would like to restate 12 it, that we are willing to look at the consent decree, to be 13 involved, because I know our Board wasn't involved. It was 14 really between you and the plaintiffs. But anyway, we can 15 help revisit some of those issues and reprioritize or 16 regroup like you just suggested, I think, makes sense. We 17 get a bigger bang for the buck. 18 MR. SMITH: We will follow up with your staff on what 19 we talked about now. 20 CHAIRMAN BAGGETT: Okay. 21 Thank you. 22 MR. SMITH: Thank you. 23 CHAIRMAN BAGGETT: Steve Arita. 24 MR. ARITA: Morning, Mr. Chairman, Board Member Silva. 25 For the record, my name is Steven Arita. I am with the CAPITOL REPORTERS (916) 923-5447 17 1 Western States Petroleum Association. 2 On behalf of our association I would like to, first of 3 all, express our appreciation of thanks for finding an 4 extension for submittal of comments. We certainly 5 appreciate, and, again, thank the Board for doing that. 6 Along the lines of supporting comments, we support and 7 endorse the staff's recommendation for a watch list and the 8 accompanying criteria that has been proposed by staff. When 9 there is a situation with insufficient information on a 10 water segment to support a 303(d) listing, and, secondly, if 11 there is a regulatory program in place to control 12 pollutants, but that there is not yet sufficient data to 13 demonstrate success. We also understand that the watch list 14 will be submitted to EPA, but would not be part of an 15 official listing of the 303(d) list. 16 Secondly, we also support the proposed case-by-case 17 factor that have been proposed by staff. We certainly 18 believe that important things such as the minimum data 19 quality, data samples, data tie translations and narrative 20 criteria are all important factors and certainly support all 21 those 13 factors that are being included. 22 We would, however, suggest that the Board consider 23 recommending that more specific standards be added to the 13 24 case-by-case factors, some additional specificity would be 25 helpful for each of the factors, and it would result in more CAPITOL REPORTERS (916) 923-5447 18 1 accurate information provided. 2 We also support the priority of ranking system for the 3 303(d) list water segments. The top priority ranking is 4 imperative in order for California to address the over 1,500 5 water segments in an orderly and scientific fashion. Some 6 of our concerns, however, are -- we believe that given all 7 of the information there is still -- probably could have 8 been done a more consistent review of all the water 9 segments. We know that there are some inconsistencies in 10 how the analysis was done. And, again, we will be providing 11 some specific examples in our written comments. 12 Secondly, we would urge that -- and we understand the 13 staff's limitations given today's issues that the Board is 14 facing. We would, if at all possible, urge the Board to do 15 a more comprehensive review of the 1998 list, especially 16 given the fact that there has been these 13 case-by-case 17 factors now developed. 18 Honestly, the above concerns clearly demonstrate the 19 need for a statewide policy, and we certainly recognize and 20 appreciate the efforts of the State Board staff on the 21 development of a statewide policy. We believe that there is 22 an important need for such a policy and certainly our 23 association is prepared to assist in whatever way we can to 24 promote a type of policy that is necessary for future 25 listings. CAPITOL REPORTERS (916) 923-5447 19 1 That's it with my comments. 2 Thank you. 3 CHAIRMAN BAGGETT: Thank you. 4 Craig Johns. 5 MR. JOHNS: Thank you, Mr. Baggett and Mr. Silva. For 6 the record, Craig Johns, California Resource Strategies, 980 7 Ninth Street, Suite 2200, here in Sacramento. 8 I am speaking on behalf of the California Manufacturers 9 and Technology Association this morning in my role as the 10 industrial discharger representative through the AB 982 11 PAG. First I would like to say that we appreciate the 12 enormous effort by Craig Wilson and his staff and everybody 13 associated with this effort and the State and Regional 14 Boards in putting together this information and reviewing a 15 very substantial amount of data in a relatively short period 16 of time. Obviously, there will be differences that people 17 have about this, but needless to say, and I think as Dave 18 Smith from EPA pointed out, this is an incredible 19 improvement over previous efforts in this regard. 20 We also appreciate the staff Board's decision to keep 21 the comment period open until June 15th so that anyone can 22 submit additional information that they think is important 23 in determining the final listing that this Board will be 24 determining. Needless to say, the focus on listings in the 25 past have not been as important as it is now, and we think CAPITOL REPORTERS (916) 923-5447 20 1 that it is a good decision by the State Board in keeping the 2 deadline open. 3 I have three primary comments regarding policy 4 directions in a general way regarding the proposed listing 5 this time around, and I will not reiterate some of the 6 comments that Mr. Arita made from WSPA, but we do support a 7 number of those. First of all, we do support the watch 8 list. As the State Board Chair pointed out as really the 9 best way or the need for a triage approach really calls the 10 need for a watch list such as this. 11 We do support the consent of not listing waters where 12 there is an alternative enforceable program in place to 13 achieve water quality standards. And we also strongly 14 support the need to reexamine waters that were previously 15 placed on the '98 list. 16 I would like to call to your attention, and I know 17 State Board staff and counsel are aware of this, I don't 18 know if the members have had an opportunity to read the 19 468-page decision by a Florida Administrative Law Judge 20 issued just ten days ago on the so-called Florida Inland 21 Waters Rule, which upheld in its entirety the State Board 22 or, excuse me, that state's decision in developing a rule 23 for listing which -- and I would like to tick off some of 24 the things that are crucial here that the State Board here 25 is considering. CAPITOL REPORTERS (916) 923-5447 21 1 First, it does create a watch list similar -- or a 2 planning list there similar to that proposed by State Board 3 staff. It will not list where enforceable alternative 4 programs are in place. It will not list for natural causes 5 of pollution or pollutants or pollution that are not related 6 specifically to pollutants. They will not list where there 7 are mixing zones or site-specific objectives or criteria 8 that are applicable. 9 I think an important thing that needs to be kept in 10 mind too is that that Florida rule was essentially approved 11 by EPA Region 4, and I think that is a very good model to 12 start with for the State Board in developing a policy as I 13 know the State Board is in the process of doing. 14 Finally, the issue of money that the Chair brought up a 15 moment ago in a question to EPA representative is an 16 important one. When you consider that, I believe the figure 17 that we heard in the PAG last year or the year before, was 18 that on average only $124,000 comes from EPA per TMDL to get 19 these things developed. It really does calls into question 20 the need for a more scrutinized approach to listing as well 21 as going forward and reexamining the '98 list. Because as 22 we all recognize with the 23- or so billion dollar deficit, 23 we are strapped for money to get these TMDLs done, and 24 further listings that really don't warrant it really don't 25 seem to put the Regional Boards or the State Board in a very CAPITOL REPORTERS (916) 923-5447 22 1 good position. 2 With that I thank you very much and again support much 3 of the work that the State Board staff has done. 4 CHAIRMAN BAGGETT: Thank you. 5 Roberta Larson. 6 MS. LARSON: Good morning, Chairman Baggett and Mr. 7 Silva. Thank you for the opportunity to be here this 8 morning. My name is Roberta Larson. I am here today 9 representing the California Association of Sanitation 10 Agencies and Tri-TAC, Technical Advisory Committee of 11 publicly owned treatment works. 12 I believe that you have received our eight-page comment 13 letter. So I will not repeat everything that is in that 14 letter. I do want to hit some of the highlights. And at 15 the risk of violating Chairman's not repeating rule, I do 16 need to repeat my compliments to the staff for the way that 17 they have proceeded with this listing process. I figure 18 those kind of repetitions are okay. Right? 19 We do find that this particular process has been much 20 clearer, much more open and it is -- there is a lot more 21 information in the staff reports for someone interested in a 22 particular listing decision to be able to take a look at 23 that and evaluate it. Again, I do want to add my 24 compliments to the staff for all the work that went into 25 that. CAPITOL REPORTERS (916) 923-5447 23 1 Also, I guess, to compliment the Board, I am not sure 2 your what the right word is, its courage, its leadership in 3 taking on this very difficult question of trying to take the 4 303(d) listing in what I see as something of a new 5 direction, a direction to say this list is going to be a 6 list of waters for which TMDLs are to be developed in the 7 state of California. That is what the list will do for us. 8 It will be a comprehensive list of those waters for which 9 TMDLs are needed and will be done over the next eight- to 10 13-year period. But it won't be sort of a catchall list of 11 every water body in the state because there may be something 12 that needs to be done for that water. And many of the 13 things that are proposed in the staff report are very 14 similar to those things that the United States Environmental 15 Protection Agency is considering in its revised watershed 16 rule which is what they are now calling the TMDL Rule. 17 I was in Washington, D.C., earlier this week and 18 received several briefings from headquarter's staff. And 19 they, too, are proposing in their revised rule a five-part 20 list. They are proposing that you don't put things on the 21 TMDL list where there is an alternative enforceable program. 22 They are, too, moving in the direction of TMDLs are a tool 23 in the toolbox that we need to use, but they are not the be 24 all and end all, and we need to keep that in mind when we're 25 crafting our 303(d) list. CAPITOL REPORTERS (916) 923-5447 24 1 Just a couple of specifics that I want to highlight in 2 terms of the directions that we support. We do support the 3 establishment of a watch list, and we support many of the 4 factors that the staff has applied in determining that they 5 should go on the watch list rather than the TMDL development 6 list. Insufficient data, alternative enforceable program in 7 phrase, unknown stressors. For example, in the past we saw 8 a lot of listings for things like unknown toxicity, and we 9 would submit that you need to do some more monitoring and 10 assessment before you can head down the path and do a TMDL 11 for unknown toxicity. So we support placement of that on the 12 watch list for further work. 13 We also support the delistings where impairment due to 14 natural conditions and where they're based on sort of 15 informal criteria such as elevated data levels, and there 16 are many examples that we cite in our letter. 17 So overall I think the direction is positive. I do 18 want to hit on a couple points where we would ask that you 19 do a little bit of additional work to really make this list 20 approvable and workable. 21 The first is a point that has already been mentioned by 22 a couple of speakers, and that is what about the '98 23 listings that the staff report sort of assumes that the '98 24 list is grandfathered in for lack of a better term. I think 25 Mr. Smith from EPA suggested that that is a legally sound CAPITOL REPORTERS (916) 923-5447 25 1 approach, and I don't want to get into a discussion whether 2 it is legal or not legal. I think the better question is is 3 it appropriate and is it helpful to the state in terms of 4 where you are trying to take this program. And we believe 5 that there are number of listings on the '98 list that 6 suffer from the very same flaws that you have identified and 7 addressed here on the proposed 2002 listing. 8 Now, we realize it is a tremendous workload impact to 9 somehow say you have to go back and review every listing on 10 the '98 list. What we would suggest as an alternative is 11 that where, during the next few days of hearings and the 12 comment letters, people raise specific issues about those 13 '98 listings that track with the criteria that your staff 14 has applied, that those be revisited. Because otherwise, 15 they are going to go on that list for TMDL development and 16 won't have another listing cycle for probably four or five 17 years. And it just again seems like you'll have 18 inconsistencies and misdirected resources. So, perhaps, 19 that is a compromise position where you could look at a 20 subset of those '98 listings where people have raised 21 legitimate issues. 22 Secondly, we continue to have concerns about listings 23 based on draft guidance or informal criteria rather than 24 adopted water quality objectives. I think you heard our 25 arguments on that in the past, and they are detailed in the CAPITOL REPORTERS (916) 923-5447 26 1 letter. 2 And then, lastly, we would ask that you would consider 3 one other watch list criteria, and that is placement of 4 water bodies on a watch list where site-specific objectives 5 are under development. Perhaps the best example of this in 6 the South Bay work on copper and nickel where the water 7 bodies were carried forward on the list during site-specific 8 development objectives -- site-specific objective 9 development. The whole purpose of doing a site-specific 10 objective is to determine what the appropriate level of a 11 particular pollutant you can have in a water body, and you 12 really need to do that before you head down a TMDL road. So 13 we would say, "Put those on the watch list. Let the 14 site-specific work continue," and then if and when the 15 site-specific objective is adopted and not adopted, you can 16 then commit an assessment as to whether the water body is 17 impaired. 18 Thank you very much for your time. I hope you will 19 have a chance to read our comment letter, and I do really 20 want to end as some of other speakers did on a positive note 21 to say I really believe that the State Board is moving in 22 the right direction with this proposed list, and we 23 compliment the staff and the Board for their leadership. 24 Thank you. 25 CHAIRMAN BAGGETT: Thank you. CAPITOL REPORTERS (916) 923-5447 27 1 Lena Brook. 2 MS. BROOK: My name is Lena Brook, and I work with the 3 Clean Water Action in San Francisco and today I speak on 4 behalf of my organization as well as our 20,000 California 5 members. 6 I would like to start by thanking the State Water 7 Resources Control Board for its efforts to develop an 8 adequate and defensible Section 303(d) list. We especially 9 support the addition of almost 200 impaired water body 10 segments to the Draft 2002 list and the fact that you are 11 using the 1998 list as a basis for what we are seeing in 12 2002. 13 However, we are concerned about the Board's 2002 14 proposed list for a number of reasons. The first of which 15 is the fact that a watch list is being created. We feel 16 that a watch list can be really easily exploited and used as 17 a delay tactic for cleaning up impaired water bodies. We 18 are also concerned because that the development of a watch 19 list is essentially contrary to the clear intent of the 20 Section 303(d) of the Clean Water Act as well as 21 implementing regulations. 22 Finally, because dividing impaired water bodies among 23 various lists, such as the TMDL completed list or the watch 24 list, really has no regulatory or legal significance. This 25 essentially can be viewed as delisting and moves us further CAPITOL REPORTERS (916) 923-5447 28 1 away from achieving water quality objectives. We also 2 disagree with the Board's decision to require that an 3 explicit linkage be made between an impaired water body and 4 the source of its pollution prior to adding that water body 5 to the list. While this type of information certainly has 6 relevance as background data, whether it exists or not does 7 not change the fact that the water body is, in fact, 8 impaired and, therefore, meets criteria for listing. 9 Finally, Clean Water Action is very concerned about the 10 Board's decision to use criteria other than the health of 11 the water body to make listing decisions. The fact that 12 water quality management programs, such as Toxic Hot Spots 13 programs, for example, exist should provide all the more 14 reasons to list water bodies as opposed to not list them. 15 The existence of these programs in concert with continued 16 water quality impairment acts as evidence that listing is 17 warranted, not the contrary. The process of listing water 18 bodies plus ultimately be separated, has to be divorced, 19 from management strategies that could be implemented to 20 remedy the impairment. We feel that the two processes 21 should be separated. 22 I was hoping to be able to show you some photographs 23 today of some creeks in Santa Clara County in Region 2. I 24 was told that I am not going to be able to do that. What 25 these series of photographs would show you is a number of CAPITOL REPORTERS (916) 923-5447 29 1 creeks in Santa Clara County that are severally impacted by 2 trash. And the reason that I wanted to bring this up is 3 that although the Regional Water Quality Control Board in 4 Region 2 confirmed that expressive levels of trash are 5 found in virtually all urbanized waterways in our region, 6 they have failed to propose any listing of water bodies due 7 to trash, because other efforts have been in place to deal 8 with this problem. Right? 9 However, as the photos would have illustrated, there 10 seems to be a fallacy in this argument. The fact that 11 existing management efforts are in place and have failed is 12 essentially provides us even more reason to add water bodies 13 to the 303(d) list, especially in the face of overwhelming 14 evidence, which is hard to point to now without having the 15 photographs in front of me. But there is overwhelming 16 evidence that Bay Area creeks are, in fact, full of garbage. 17 So I thank you for your time this morning. 18 CHAIRMAN BAGGETT: Have you submitted the photographs 19 for the record? 20 MS. BROOK: I have not. We will be doing that by the 21 June 15th deadline. 22 Thank you. 23 CHAIRMAN BAGGETT: Jean Chei. 24 MS. CHEI: Chairman Baggett, Board Member Silva. My 25 name is Jean Chei. I am with Ocean Conservancy. CAPITOL REPORTERS (916) 923-5447 30 1 Again, I want to first echo and support the comments 2 that Lena Brook has made. We are in complete agreement with 3 those comments that she has made. I additionally want to 4 make a comment on the information that is available on the 5 administrative record. 6 While we appreciate the amount of information involved 7 in evaluating water body, we feel that the information at 8 the administrative record is not as effective as it could 9 be. First of all, the information -- when I recently 10 visited the State Board to review the information, a lot of 11 that was missing. And, in fact, I was told that it would 12 be, in fact, available on CD-ROM. It still wasn't as of 13 today. Secondly, having this information in 14 Sacramento and only available from eight to four, I think 15 is prohibitive and limits access, and it leads directly to 16 the transparency issue. Alternatively, I request that the 17 information be -- relevant information, not necessarily all 18 the raw data or everything of that nature, be made available 19 and accessible on the Web. 20 And as for the watch list, I wanted to emphasize that 21 we frankly oppose the use of a watch list regardless of any 22 existing alternative or enforceable programs for lack of 23 sufficient data that does not negate the fact that it is an 24 impaired water body and that it does indeed need to be 25 listed. So I would encourage that use of the 303(d) list -- CAPITOL REPORTERS (916) 923-5447 31 1 that the 303(d) list be used for all water bodies and not be 2 relegated to a watch list. 3 That is about it. Thank you so much. 4 CHAIRMAN BAGGETT: Thank you. 5 Craig, have we got -- I know we were digitizing it with 6 scanners. Where are we at with that process? 7 MR. C.J. WILSON: In this process we haven't digitized 8 much of the information. It is in about four file cabinets 9 in our offices. We hadn't plan to digitize all of it. The 10 data Ms. Chei is talking about is I believe from Region 3. 11 Is that correct? 12 UNIDENTIFIED AUDIENCE MEMBER: And two. 13 MR. C.J. WILSON: The stuff -- we have an electronic 14 copy or we have a hard time getting it printed out. It is a 15 technical difficulty that we were trying to resolve. 16 CHAIRMAN BAGGETT: I assume the information is 17 available in the Regional Board offices, also, and Region 2 18 would have the information they submitted to us. 19 MR. LEVY: Same for Region 3. 20 CHAIRMAN BAGGETT: Same for Region 3. The Regions that 21 submit this data to us have original copies which makes it a 22 lot more convenient for most of you to go to the Regional 23 Board offices, anyway. 24 That is all the general comments that we have. Start 25 with Region 1. We have 16 cards here. Debbie Webster, CAPITOL REPORTERS (916) 923-5447 32 1 Sonoma County Water Agency. 2 MS. WEBSTER: Thank you. Good morning. My name is 3 Debbie Webster. I am the principal engineer for Sonoma 4 County Water Agency. 5 The Water Agency provides drinking water for Russian 6 River to approximately 600,000 people in Sonoma and Marin 7 Counties. We also operate nine wastewater treatment plants, 8 and we provide flood control services. The agency has some 9 specific comments regarding listings of the Russian River 10 and some of the tributaries. But in general we would like 11 to say that we do support the 303(d) listing process so long 12 as those listings are made with adequate data and with water 13 quality objectives that have been legally adopted. And some 14 of our issues go towards that fact. 15 First of all, we would like to support the State 16 Board's decision to put the Russian River and its 17 tributaries on the watch list for temperature. The agency 18 is providing funding to the North Coast Regional Board to 19 develop appropriate criteria for temperature. And until 20 that is done the agency believes the watch list 21 recommendation is justified. 22 Second, the proposed 303(d) listing includes two 23 segments of the Russian River for pathogens. One at 24 Healdsburg Memorial Beach and the second at Monte Rio. The 25 Healdsburg Memorial Beach segment is approximately 2,000 CAPITOL REPORTERS (916) 923-5447 33 1 feet long and the agency has no issues with that. However, 2 Monte Rio listing includes approximately 4.6 miles of river 3 and over 22,000 acres of watershed. The data is only 4 specific to the beach area, which is approximately 2,000 5 feet long. 6 The agency recommends that instead of being -- that 7 stretch be put on the 303(d) list, that the Monte Rio Beach 8 segment, which is approximately 2,000 feet long, be put on 9 the 303(d) list, or as alternative that stretch be put on 10 the watch list until adequate data can be collected from 11 that reach of the Russian River and its tributaries. 12 The watch list also includes -- the watch list and the 13 303(d)'s proposed listing also includes issues regarding 14 dissolved oxygen issuance, diazinon and some metals. The 15 City of Santa Rosa will speak more towards that, and we 16 support their comments. But in general, we would like to 17 say that the agency is supporting by funding Basin Plan 18 amendments for the Regional Board to come up with 19 appropriate criteria to be used. And until that criteria is 20 developed, the agency supports either a watch listing or no 21 listing at all when data is not available. 22 Thank you for your time. 23 CHAIRMAN BAGGETT: Thank you. 24 Dan Carlson from the City of Santa Rosa. 25 MR. CARLSON: Good morning. I am Dan Carlson with the CAPITOL REPORTERS (916) 923-5447 34 1 City of Santa Rosa. I'm representing not only the City of 2 Santa Rosa, but the other members of our subregional system, 3 four other cities in our area. Also, we have been working 4 cooperatively with the Town of Windsor and the Sonoma County 5 Water Agency, as you just heard. Although Windsor is not 6 here today, the comments I make will reflect their same 7 concerns and issues. 8 First, I want to assure the Board that the City has a 9 longstanding demonstrated and ongoing commitment to water 10 quality and improvement in our region. We built and operate 11 the largest agricultural reuse system. Used to be the 12 largest in the world and still is one of the largest, and 13 definitely the largest in Northern California, 7,000 acres 14 of recycled water reuse, water that is not going to 15 discharge, that is being reused for other uses. 16 We have conducted nitrogen reduction studies. You 17 mentioned the state funding problems at this time. We had 18 similar problems back around '94, and at that time we went 19 forward with the program to help our Regional Board to the 20 tune of 250,000 that developed a TMDL study for nitrogen 21 loadings in our watershed. And through that program we not 22 only then determined we could reduce the input to our plant 23 in 18 to less than seven milligrams per liter in recycled 24 water, but we developed a model program for reducing dairy 25 waste loads to our watershed and one that could be used and CAPITOL REPORTERS (916) 923-5447 35 1 has been used statewide. That program was modeled after 2 your own SRO Program, which is we loaned money to our dairy 3 users to build dairy waste reduction improvements. 4 We are currently constructing a geyser recharge 5 project, $180,000,000 project that you are aware of since 6 you're helping us fund it through your SRF Program. That 7 not only reduces future -- existing and future discharges to 8 the river, but also providing environmentally friendly 9 energy. And last, we are developing the next generation of 10 recycled water projects right now. We started the program 11 to look at what we are going to do now and into the next 20 12 years to help offset potable water demand and protect water 13 quality. 14 So we have consistently demonstrated the willingness to 15 fund programs and projects that address water quality issues 16 in our region. That said, we are concerned that some of the 17 proposed 303(d) and watch listings may have the effect of 18 diverted limiting water quality protection resources away 19 from real water quality issues. In that regard, I do have a 20 card from a Dave Smith. He is a scientist working for us, 21 and he will be specific to those issues. 22 CHAIRMAN BAGGETT: Thank you. 23 Dave Smith. 24 MR. SMITH: There are two of us. My name is Dave 25 Smith, also, with the firm of Merritt Smith Consulting CAPITOL REPORTERS (916) 923-5447 36 1 Engineers representing the City of Santa Rosa and the town 2 of Windsor, also. 3 Before I go into some technical comments I want to echo 4 something that the other speakers have mentioned, which is 5 the work that Regional Board and State Board staff have done 6 have made it easy for us to do our job and our discussions 7 have been productive and professional. We don't always 8 agree, but it's been an easy process to work with staff on 9 this. 10 I want to also point out a letter that the City of 11 Santa Rosa submitted with a technical memorandum that I will 12 be referring to for a couple of data tables and graphs that 13 are relevant to the point I am going to make. The three 14 areas where we have some concern or disagreement relate to 15 the listing of the Laguna de Santa Rosa for nutrients, the 16 listing of Laguna de Santa Rosa and Santa Rosa Creek for 17 copper and the listing of Santa Rosa Creek, the watch 18 listing for copper and a watch listing of Santa Rosa Creek 19 for diazinon. 20 The Laguna de Santa Rosa and Santa Rosa Creek are 21 tributaries to the Russian River, and Santa Rosa Creek is a 22 tributary to Laguna, and not only does urban runoff from the 23 greater Santa Rosa area flow through Laguna, the portion of 24 Santa Rosa's and the town of Windsor's recycled water that 25 is not reused discharges to that water before it flows into CAPITOL REPORTERS (916) 923-5447 37 1 the Russian River. Soliciting their effects both in the 2 urban runoff programs from those communities and the 3 recycled water operations. 4 The listing of Laguna de Santa Rosa for nutrients is of 5 concern to us. Nutrients refer in this case to nitrogen, 6 phosphorous typically to name controlling nutrients, 7 controlling the growth of algae. The growth of algae is 8 important primarily because of its potential impact on 9 dissolved oxygen. This is a salmonid migration corridor, 10 and it is extremely valuable to the community as such and 11 dissolved oxygen depletion is in no one's interest. 12 Our concern, though, is that there has not been a 13 relationship made between the phosphorous that is in Laguna, 14 algal growth and dissolved oxygen. There is a couple of 15 graphics in our technical report that point this out. The 16 nitrogen phosphorous ratio in the summertime is always very, 17 very low, approaching one which indicates nitrogen 18 limitation, not phosphorous during the growth season, and 19 it's never in the phosphorous limitation range. 20 We also take issue with the Regional Board's 21 justification for listing phosphorous, that there is already 22 a USEPA criterion for phosphorous. There is not -- the U.S. 23 EPA criterion for phosphorous of .1 is for elemental 24 phosphorous for taking in toxicity in the estuarian systems. 25 Although one is being developed, it probably won't be a CAPITOL REPORTERS (916) 923-5447 38 1 numeric one for protection against proliferation of algae. 2 This is important to the City of Santa Rosa because if 3 there is a 303(d) listing for phosphorous or nutrients as is 4 currently proposed, then that implies that a TMDL should be 5 done, when the data indicates that a TMDL and a reduction of 6 phosphorous would not necessarily have one bit of impact on 7 the dissolved oxygen concentration which is the ultimate 8 concern in the Laguna de Santa Rosa. An allocation of a 9 phosphorous reduction load to the city of Santa Rosa would 10 cost approximately $50,000,000 to meet because of the need 11 for construction of new facilities at the treatment plant to 12 achieve a phosphorous reduction load. 13 The city cares deeply about this issue, not only 14 because of the desire to preserve the Laguna de Santa Rosa 15 as a viable salmonid migration corridor, but for fiscal 16 reasons as well. 17 Staff are recommending that copper be watch listed in 18 the Laguna de Santa Rosa and Santa Rosa Creek. The proposed 19 listing is based on a staff report that says, and I quote, 20 concentrations in stream sediments may be elevated 21 downstream of reference sites in both Laguna and Santa Rosa 22 Creeks. Our data that we provide from the 1996 report on 23 Table 9 there is a table indicating that there is, in fact, 24 no difference between, for copper, between the sediment 25 values at the reference stations and downstream stations. CAPITOL REPORTERS (916) 923-5447 39 1 Also, we've got some graphics in there, Figures 2, 4 and 5, 2 that indicate that in the water copper -- concentration of 3 copper is less than the applicable standards. 4 So it doesn't look to us like copper in this case meets 5 the criteria for watch listing, which are in staff report 6 identified as waters where minimal contradictory or 7 anecdotal information suggest that waters are not met, but 8 either the available data or information are inadequate. 9 We've got adequate data here or regulatory programs in place 10 to control the pollutant. 11 We don't in this case have a copper problem. There is 12 not a need to list it. 13 The last issue that I want to take us is diazinon in 14 Santa Rosa Creek. It is proposed watch listing because of a 15 data reported in 1997 from the Department of Pesticide 16 Regulations where two of 52 values or samples measured in 17 the Russian River were detectable, one of which was the 18 concentration was considered to be harmful to aquatic 19 life. There were data from Santa Rosa Creek, five samples, 20 none of which were detected where diazinon was detected, yet 21 Santa Rosa Creek was the only creek proposed for watch 22 listing for diazinon. It doesn't seem to us that that meets 23 the criteria for watch listing either, not only because it 24 hasn't been detected there but because there are two 25 programs in place to assure that it won't be detected. One CAPITOL REPORTERS (916) 923-5447 40 1 is that the city has an aggressive integrated pest 2 management program which has been affective at reducing 3 pesticide use in the watershed from 36 to over 50 percent, 4 relative to reference years over the last few years, and 5 also diazinon is being phased out. 6 CHAIRMAN BAGGETT: I guess your argument in reading the 7 letter, is the Russian, in fact, did have one sample out of 8 52. So the Russian is appropriate to watch, and, I guess, 9 some would argue one out of 52 is maybe not -- depends, I 10 guess, on the spike on that one -- is not significant. So 11 the Russian you should watch, but not Santa Rosa or Santa 12 Rosa Creek because there was not even an indication? 13 MR. SMITH: That's right, and our program is in place. 14 CHAIRMAN BAGGETT: You don't oppose the watch status on 15 the Russian, just on the Santa Rosa. 16 MR. SMITH: We wouldn't necessarily agree that one 17 sample out of 52 justifies watch listing. Our comment is -- 18 CHAIRMAN BAGGETT: To me that is the whole idea of the 19 watch list, is maybe one out of 52 is not scientifically 20 hard evidence, but it is certainly some indication maybe 21 that was a mistaken sample, who knows why you got it. But 22 at least a reason to me to watch it. That is our concept, 23 my concept of a watch list. 24 MR. SMITH: We are not opposed to watch listing the 25 Russian River. It is the Santa Rosa Creek we have an issue CAPITOL REPORTERS (916) 923-5447 41 1 with, where the absence of detectable values doesn't seem to 2 justify watch listing, especially in the presence of 3 programs to prevent it. 4 That concludes my comments and, again, I want to 5 reiterate our respect for the staff putting all these data 6 together and evaluating it. 7 CHAIRMAN BAGGETT: Thank you. 8 Brenda Adelman for the Russian River. 9 MS. ADELMAN: Thank you. Brenda Adelman, Russian River 10 Watershed Protection Committee. 11 I've been working on water quality issues. I am not a 12 scientist, but I'm an educated layperson, and I have been 13 volunteering my time for over 20 years, much of it tracking 14 the City of Santa Rosa. Our group represents about 1,500 15 Lower Russian River property owners, many of whom like to 16 recreate on the Russian River and are very concerned about 17 its health. 18 I had submitted written comments as well as backup 19 materials. There are a few issues I want to just go over. 20 First of all, in regards to bacteriological listing for the 21 Monte Rio Beach and the Healdsburg Beach, I don't have a 22 problem with that. I just think it is inadequate. I think 23 that based on the criteria used for the Monte Rio, the two 24 beaches, I think there is just as much backup information to 25 justify listing for the other beaches. There is about ten, CAPITOL REPORTERS (916) 923-5447 42 1 12 popular beaches between Healdsburg and, say, Duncans 2 Mill, which is six miles from the mouth of the Russian 3 River. 4 And I have looked at the data for the last 10, 12 5 years, and there is certainly consistencies. And one 6 consistency is that it is inconsistent. The data is 7 basically for just three months in the summertime, taken 8 once a week for the most part. Very often you will get some 9 high readings. Monte Rio has more high readings than the 10 other beaches, but you will get them very high reading one 11 week and a very low reading the next, and they typically go 12 up and down, up and down. There is no consistently high 13 readings that would justify singling out Monte Rio from my 14 point of view. I think that either you should include all 15 of them or none of them. 16 I think, also, there is an important need to 17 differentiate between human coliform and animal coliform. 18 It's entirely possible that the coliform readings come from 19 animals. 20 CHAIRMAN BAGGETT: Would that make a difference? 21 MS. ADELMAN: Well, it is a lot to control the animals. 22 CHAIRMAN BAGGETT: I understand. That is the whole 23 idea of TMDLs, in my opinion, is to look at the health of 24 the watershed. 25 MS. ADELMAN: I basically support listing them. I'm CAPITOL REPORTERS (916) 923-5447 43 1 just saying that I think singling out Monte Rio may not be 2 adequate. We had done a sort of informal health survey 3 several years back, and a number of our supporters had 4 gotten minor illnesses by swimming in waters in Gurneyville, 5 a sewered area, and also the Forestville area. So there is 6 a lot of inconsistencies, and I so support studying it. I 7 just think it should be a broader study than just one or two 8 beaches. 9 In terms of the other issue, what I call the unlisting 10 of the Russian River for temperature, there's just been an 11 enormous amount of data that has been put forth. I want to 12 say that it's interesting to me that the Sonoma County Water 13 Agency does not support listing the river for temperature 14 when they are in the middle of a Section 7 consultation. 15 And I had submitted to your Board the report on this subject 16 put out in the interim by the consultant for the purpose of 17 this listing. 18 Basically, the report states that temperatures are 19 frequently too high in the period of the outmigration in 20 April and May and that it can be stressful for the salmon 21 and the threatened species. So their own consultant has 22 provided evidence that that is a problem, plus there has 23 been extensive other evidence provided, and I am sure the 24 Regional Board staff will address that. And I was quite 25 impressed by a letter written by National Marine Fisheries CAPITOL REPORTERS (916) 923-5447 44 1 Service where they say in no uncertain terms that if this 2 isn't enough for a listing what you're requesting is to do a 3 TMDL in order to do a listing, and they had strong 4 objections to that. 5 In regards to the City of Santa Rosa's comments, when 6 had been working with the scientists who did a report on 7 phosphorous and found that there aren't phosphorous 8 problems. Some of it was a result of Santa Rosa's 9 wastewater discharges. If you ever took a look at the 10 lagoon in the summertime, you could see it is in serious 11 trouble. You can just look at it and see all the nutrient 12 pollution. 13 In terms of copper, I'm not a scientist. I don't 14 totally understand how these calculations are made. But a 15 scientist I know has stated that the city measures hardness 16 of the water which affects the copper readings in such a 17 location to show lower impacts on copper from their 18 wastewater. So I think that needs to be looked at very 19 carefully if you are considering not listing the copper. 20 At any rate, we did submit extensive comments and 21 backup materials, and I thank you very much for your time 22 and consideration. 23 CHAIRMAN BAGGETT: Thank you. 24 There is no one from NOAA, right, I assume? 25 Are you going to comment? CAPITOL REPORTERS (916) 923-5447 45 1 MR. DILLON: I will be happy to answer any 2 questions. I don't -- 3 CHAIRMAN BAGGETT: Could you come up? I do have a 4 question. You are familiar with the letter you sent? 5 MR. DILLON: Yes. 6 CHAIRMAN BAGGETT: State your name. 7 MR. DILLON: My name is Joe Dillon. I am with National 8 Marine Fisheries Service. 9 CHAIRMAN BAGGETT: You are familiar with the letter on 10 the Russian River from Rodney McGinnis [phonetic]? 11 MR. DILLON: Correct. 12 CHAIRMAN BAGGETT: He raised some concerns on the 13 Russian with temperature impairment. Could you summarize 14 those for us? What are your concerns about putting it on 15 the -- I guess you are proposing it be listed since you are 16 already in consultation with them. 17 MR. DILLON: Actually, it is unrelated to the 18 consultation. It's the fact that we believe the data set 19 for the Russian River as well as the North Coast Rivers is 20 sufficiently robust to include their placement on the 303(d) 21 list and not the watch list. 22 We have a problem with the watch list because it is not 23 a defined concept, and we don't know how it will be used. 24 In this case it seems to be used to place these particular 25 water bodies away from the 303(d) list, so that they won't CAPITOL REPORTERS (916) 923-5447 46 1 be actively examined until at least the next listing time, 2 be that two or four years. 3 CHAIRMAN BAGGETT: There is ongoing monitoring on these 4 rivers from your agency and Fish and Game and other agencies? 5 MR. DILLON: There is ongoing monitoring from other 6 agencies. 7 CHAIRMAN BAGGETT: So that part, when you put it on a 8 watch list, would not inhibit the monitoring or the data 9 being collected. 10 MR. DILLON: For the Russian River it may not inhibit 11 more data being collected. It may inhibit the development 12 of the TMDL and implementation plan to address the problem 13 that we believe is sufficiently defined by the existing 14 information. In other water bodies in the North Coast 15 putting them on the watch list will result in their not 16 being looked at for several years until at least money is 17 available to do so. Because they have already been examined 18 for their temperature impairment, the Regional Board does 19 not have the resources to roll more people out there to look 20 at them specifically again. Had they been looked at at the 21 same time that they were having the sediment related 22 problems examined, that would make more sense, but that is 23 not the case. 24 CHAIRMAN BAGGETT: Who's collected most of the data? 25 Is it your agency or NMFS or Wildlife? CAPITOL REPORTERS (916) 923-5447 47 1 MR. DILLON: On the Russian River? 2 CHAIRMAN BAGGETT: Yes. 3 MR. DILLON: I believe it is the North Coast Regional 4 Board and Sonoma County Water Agency. 5 CHAIRMAN BAGGETT: On the Russian? 6 MR. DILLON: Right. 7 CHAIRMAN BAGGETT: And you've analyzed the data? 8 MR. DILLON: I've taken a look at what the North Coast 9 Regional Board staff had put together and presented to their 10 Regional Board. 11 CHAIRMAN BAGGETT: You haven't done an independent 12 analysis? 13 MR. DILLON: No. 14 CHAIRMAN BAGGETT: NMFS or NOAA? 15 MR. DILLON: Not to my knowledge. That would be part 16 of the process, as I understand it, for the Section 7 17 consultation that is ongoing with Sonoma County Water 18 District. 19 CHAIRMAN BAGGETT: On the Russian River? 20 MR. DILLON: On the Russian River, but I don't know 21 where that stands. 22 CHAIRMAN BAGGETT: Thank you. 23 Couple more than we'll take a break here. 24 Steve Hackett, Northwest Resources. I don't know what 25 river. General comments. CAPITOL REPORTERS (916) 923-5447 48 1 MR. MCWHORTER: My name is Sterling McWhorter. Steve 2 had to leave, and he wanted me to give this, what he wrote 3 for the record. 4 CHAIRMAN BAGGETT: Thank you. 5 Trying to put these so once we started focusing on a 6 river we can stay on it. 7 Looks like Mattole is up first. 8 Mary Etter. Did I get that right? 9 MS. ETTER: I am Mary Etter, and I came down from 10 Northern California on a bus, rode all night, so we are very 11 tired. There is many of us here today, we're hoping to get 12 some of Northern California rivers delisted. 13 I live on a ranch in the Mattole Watershed which is in 14 Humboldt County. Our ranch lies on both sides of the river, 15 the Mattole River. It is a very large tributary that 16 empties in the Mattole, and then there are many other 17 smaller creeks that go into each of those. So we would be a 18 ranch that would be very, very affected by the TMDLs. 19 Our family has lived on this ranch for six 20 generations. So, obviously, it's very, very important to 21 us. Some of the property was homesteaded by family members, 22 and it is still part of the ranch today. We are under a 23 great deal of pressure to subdivide. We cannot take 24 additional regulation. I think that if this should happen, 25 it would be very, very harmful to the entire watershed. I CAPITOL REPORTERS (916) 923-5447 49 1 don't think anyone up there would like to see this happen. 2 Again, as far as the TMDLs, I think that a lot of the 3 information is misleading. On the upper reaches of these 4 creeks, on our ranch, there have been studies, surveys by 5 the Fish and Game for nine years that shows that it is a 6 very, very healthy fish population. And still we are cited 7 for temperature, and they say that fish cannot live in such 8 temperatures. But they are doing it. 9 As I understand it, the TMDLs will be based largely 10 upon the northwest -- north coast watershed assessment 11 programs. And so I have attended all the workshops in our 12 area, and there has been a lot of discussion about the 13 inaccuracy and lack of studies, incomplete studies. I think 14 it was concluded at the last workshop that incomplete 15 information leads to faulty conclusions and that no 16 information is better than faulty information. 17 I think it was in the last draft of our assessment 18 program, on Page 37, there was a quote which is, the EMDS 19 model is not a highly vigorous process or statistical model 20 intended to provide output with the known level of 21 accuracy. Also, if you were to read the last pages in this 22 assessment program, I think you would come to the conclusion 23 that no one has taken accuracy for the document. I don't 24 think it is credible to make regulation -- recommendations 25 and regulations based on inaccurate information. CAPITOL REPORTERS (916) 923-5447 50 1 CHAIRMAN BAGGETT: Correct me if I am incorrect, the 2 Mattole River is already listed. 3 MS. ETTER: Yes, it is. We are hoping to delist it. 4 CHAIRMAN BAGGETT: So based on your experience since it 5 was listed in '98, it has created a problem? It's been 6 listed now for four years? 7 MS. ETTER: Something like that, yes. 8 CHAIRMAN BAGGETT: What regulatory problem has it 9 created for you? 10 MS. ETTER: I am talking about the recommendations in 11 the assessment program. As I understand it, the TMDLs 12 will be largely based upon those recommendations. This is 13 what we were hold at our workshop. 14 CHAIRMAN BAGGETT: Okay. 15 MS. ETTER: Now after saying all that, I suppose I 16 should have to -- I have will to say something in defense of 17 the assessment program. We work very closely with Scott 18 Downey who is with Fish and Game. And Fish and Game is the 19 lead agency in writing this up. I think they did the best 20 job they could under the circumstances. I think they have 21 very little time and funding to do a thorough job. So I 22 don't think it is a good document, but I don't think it is 23 their fault. 24 CHAIRMAN BAGGETT: Okay. 25 Thank you. A few more cards. CAPITOL REPORTERS (916) 923-5447 51 1 Craig, do you have any -- well, we have four more for 2 Mattole. 3 Richard and Sally French; is that right? And/or. 4 MS. FRENCH: My name is Sally French. My husband 5 Richard and I have a ranch in the middle of Mattole River at 6 the mouth of Bear Creek. 7 We believe that the TMDL listing where you are using 8 sediment, which is the natural component of our river and 9 all rivers, that you are treating it as you would a 10 poisonous pollutant put out by a factory. Most of the 11 heavier sediment flows in our watershed are from naturally 12 caused sources, many, probably most, of which can little be 13 done about. Between the floods and earthquakes this rugged 14 watershed -- this is what causes most of this. 15 But we believe that the large landowners will be 16 targeted as the easiest way to find someone to do something 17 about the watershed and will start looking for places for us 18 to be able to do something. 19 We live in the middle of Mattole where there are very 20 few large landholders now. The importance of our land and 21 the other large landholders in this watershed cannot be 22 downplayed. We have been told that the TMDL listing would 23 cause a cessation of logging, and we already have some of 24 the strictest laws in the United States for logging. Since 25 our land cannot support us without sustainable forestry, CAPITOL REPORTERS (916) 923-5447 52 1 since we are mostly timber, we believe that the TMDL 2 listing could cause us to have to sell. On 3500 acres that 3 could potentially mean 85 families instead of the three that 4 live there now. 5 The subdivisions in the Mattole Watershed and their 6 accompanying roads, septic systems, water use, home site 7 preparation, et cetera, are the worst unnatural polluters of 8 this rugged watershed. Their need for good year-round roads 9 is the biggest problem. They also have very heavy water use 10 and take a lot of water from the river and its tributaries 11 in our areas mostly for growing marijuana, and they also 12 contribute a certain amount of unnatural pollutants by their 13 diesel spills. 14 At the meetings that I have attended with the agencies, 15 they cannot tell us what all may happen to us. What we may 16 have to do, how much we as private landholders may be 17 required of us. These days we are beleaguered from all 18 sides. Life is becoming ever more stressful. Few of our 19 young people are willing to stay on the land. They feel 20 that our way of life is simply a lost cause. We believe 21 that new research should take place in our river to prove 22 that we are impaired before we are listed. 23 I also have a letter from Steven Launi who is our 24 registered professional forester, what his experience is in 25 preparing our THP and would like to submit that. CAPITOL REPORTERS (916) 923-5447 53 1 CHAIRMAN BAGGETT: Thank you. 2 MS. FRENCH: Thank you. 3 CHAIRMAN BAGGETT: Sterling McWhorter. 4 MR. MCWHORTER: Sterling McWhorter. That is 5 M-c-W-h-o-r-t-e-r. 6 Thank you, Chairman. 7 I would like to speak on the Mattole for a few minutes 8 and then speak on behalf of the group that I represent. 9 The reason we are here on the Mattole is, as I believe, 10 you're taking public comment on the 303(d) list, which is a 11 '98 list. 12 CHAIRMAN BAGGETT: Correct. 13 MR. MCWHORTER: I was here in '98 and I asked to be 14 delisted, asked for the Mattole River to be delisted then. 15 So I'm back now. And again we would like to be delisted. 16 The Mattole River is a healthy system. There's thousands if 17 not millions of fish in the system, and that is the ultimate 18 beneficial use. There is swimming in the river. We drink 19 the water. There is aquatic life. 20 In a memo sent out by Robert H. Wallend of EPA office 21 of water, he -- this is a memo to the monitoring 22 coordinators for the water quality branch chiefs. He says, 23 pay special attention to delisting any waters of the state, 24 and he goes on to say that these must produce good cause, 25 and this good cause includes but is not limited to more CAPITOL REPORTERS (916) 923-5447 54 1 recent and accurate data, more sophisticated water quality 2 monitoring, flaws in the original analysis that lead to the 3 water body being listed or changes in conditions. Example, 4 new equipment or elimination of discharges. 5 The Mattole has met at least two of those. There is 6 more information and there was definitely a flaw in the 7 information of why it got listed. 8 CHAIRMAN BAGGETT: It's listed for temperature and 9 sediment, correct? 10 MR. MCWHORTER: Yes. 11 CHAIRMAN BAGGETT: So if you -- when you address your 12 comments try to help us out with both of those. 13 MR. MCWHORTER: I am not a scientist. The river 14 produces sediment in the wintertime for three or four 15 months. And the rest of the time the river and its 16 tributaries run nice and clear. I just believe that the 17 TMDL program has gotten so far out of hand that not only the 18 state can't handle it, but people can't handle it and the 19 federal government cannot handle it. We are very, very 20 adamant about it. We want to be delisted. 21 Again, my name is Sterling McWhorter. At this point I 22 represent the Humboldt Del Norte Cattlemen's Association and 23 the Buckeye Conservancy. 24 I was a founding member of the Buckeye Conservancy. 25 What got me started on that is the TMDL program. We CAPITOL REPORTERS (916) 923-5447 55 1 represent over 300,000 acres in Humboldt County. We are not 2 a radical group. I'm probably the most radical. I'm not 3 very radical. I am just, you know, I am adamant about 4 Humboldt County and where I am raised and where I want to 5 raise my children. 6 Our rivers are not trashed, they are not killing the 7 salmon. We just want to be treated fairly. If anything 8 comes out of this today, we would like a committee sought by 9 the State Board to look into some of these delistings. I 10 think you guys are doing a hell of a job by delisting some 11 of these rivers, and I commend the Regional Board that we 12 deal with for taking a closer look at some of the issues on 13 temperature and possibly delisting Redwood Creek for that 14 pollutant. 15 So to end, the Buckeye Conservancy and the Humboldt Del 16 Norte Cattlemen's Association supports the delisting of the 17 Mattole River and the delisting of Redwood Creek because we 18 believe we have information on the record to back that up. 19 Thank you. 20 CHAIRMAN BAGGETT: Thank you. 21 One more card on the Mattole. Valerie Stansberry. 22 MS. STANSBERRY: My name is Valerie Stansberry. I 23 don't really represent anybody. I am on the Board of the 24 Buckeye Conservancy and am a member of the Mattole Ranchers 25 Association. CAPITOL REPORTERS (916) 923-5447 56 1 But mainly I'm just a rancher. And my husband and I 2 have a ranch between Mary Etter's and the Frenches on the 3 Mattole River. And I have been going to TMDL meetings since 4 I first heard about them. The last year I have been a 5 little busy with other things, and I haven't made it to a 6 meeting until May 8 when we had a meeting on the Mattole. 7 And they were starting to discuss our personal TMDLs. 8 I was a little shocked at the attitude from the EPA and 9 Water Resources. They were what I would term power drunk. 10 It was a whole different attitude than what I had seen two 11 years ago. They were coming at us with -- well, it was like 12 something from a World War II movie. You know, you will 13 cooperate or we will make you do these things. And it 14 doesn't give you a real good feeling to feel that you are 15 going to be regulated rather than helped. 16 Now, I don't really feel that the Mattole needs 17 help. I can ride my horse, or I used to be able to. I'm 18 sorry I can't anymore. I used to ride my horse from Mary 19 Etter's all the way to Frenches. That is almost 15 miles of 20 river. I can't do that anymore. And the reason I can't is 21 because now there are deep pools. There are big boulders 22 which the fish need, and they need the deep pools, and there 23 is riparian. There is alders in the way. I can't get my 24 horse up there anymore. 25 That is supposed to be good for the fish, right? Well, CAPITOL REPORTERS (916) 923-5447 57 1 in 20 years it's improved that much. I think we ought to 2 stay the hell out of it and let Mother Nature do it instead 3 of us messing with it. 4 CHAIRMAN BAGGETT: Thank you. 5 Let's take a short break. Quarter till we'll come 6 back. 7 (Break taken.) 8 CHAIRMAN BAGGETT: Back on the record. 9 Gualala River is next. 10 Craig Bell. 11 MR. BELL: Chairman Baggett and Board Member Silva. My 12 name is Craig Bell. I am here representing the Salmon 13 Restoration Federation. 14 As additional background, I can say that I have been a 15 licensed fishing guide on the Gualala River, which is the 16 town which I reside in, for 18 years. I have been involved 17 in the stream restoration efforts on the Gualala since 18 1983. 19 I can also say that there is no watershed restoration 20 plan for the Gualala at this time. There are efforts 21 underway to form watershed groups to develop a plan. There 22 is no -- the state of California does not have a coho 23 recovery plan. There is sufficient temperature data, 24 however, to list the Gualala River as impaired under 25 temperature. CAPITOL REPORTERS (916) 923-5447 58 1 The North Coast Regional Water Control Board staff did 2 an excellent job of characterizing the Gualala River's water 3 temperature problems in the 303 update list. Page 14 in 4 that report points out the water temperatures are too warm 5 for growth and survival of juvenile salmonids at most main 6 stream locations. Staff did not reference Welsh, et al., 7 2001, which showed that Northern California coho do not have 8 any local adaptations to warm water temperatures, but 9 instead disappear when floating weekly average water 10 temperatures exceed 16.8 Celsius or 62.3 degrees 11 Fahrenheit. The coho was once abundant in the Gualala and 12 should be the target species for recovery in the basin, 13 particularly in the forested western portion of the basin. 14 Water temperature information provided by Gualala 15 Redwoods, Incorporated, along with timber harvests, shows 16 that water temperature problems are pervasive in the basin 17 and do not meet the criteria for coho rearing almost 18 anywhere except in some small tributaries. Some larger 19 tributaries, such as Dry Creek, Rockpile and Buckeye are all 20 too warm to support coho as well, and I have provided charts 21 and graphs in my letter to show those temperature 22 exceedances. 23 And particularly it is useful to look at the pool 24 depths, which is a product that can affect temperature 25 severely. On the North Fork, Dry Creek, Dry Creek tributary CAPITOL REPORTERS (916) 923-5447 59 1 number one, Little North Fork, McGann, Doty Creek, Log 2 Cabin, Robinson and Little North Fork all of which I know to 3 be major tributaries. The average pool depth in all of 4 these is one foot or less. That is the average pool 5 depth. I do not consider pools less than three foot deep in 6 second order and larger streams adequate for rearing coho 7 and science does support that. 8 The red line on the graph I provided showing 62.3 9 degrees shows that water temperatures are not meeting 10 beneficial uses for coho salmon and well over survivability 11 for steelhead at warmer stations in the Wheatfield. The 12 South Fork Gualala is not suitable for rearing coho anywhere 13 with the temperatures that have been measured and reported. 14 The rapidly deteriorating conditions in the Gualala River is 15 best exemplified by the fact that the lower main stem below 16 the North Fork is now too warm for coho and within stressful 17 ranges for steelhead. The Gualala River cools when it 18 passes below the North Fork and was formerly optimal for 19 steelhead habitat, Brown, 1986. 20 As a long-time fishing guide, I have watched the 21 Gualala and noticed it has filled in to such a point that it 22 is going dry in many locations that were formerly good 23 rearing habitat for salmon and steelhead. The filling of 24 the streams promotes warming and contributes to the loss of 25 beneficial uses. CAPITOL REPORTERS (916) 923-5447 60 1 The recent draft synthesis report is where I have taken 2 these figures concerning the pool depth. And when we 3 examine the causes of Gualala salmon and steelhead to become 4 listed under ESA, failure to be proactive is a central theme 5 leading to the listing. While fishermen are saddled with a 6 zero harvest, there has been delay after delay in preventing 7 regulatory action. 8 Water Quality Control Board staff and public comment in 9 this process have provided more than adequate proof, linked 10 to the best available science, to support a temperature 11 listing on the Gualala River. The Gualala is faced with 12 another wave of real and potential future impacts for 13 extensive vineyard development. Stream restorations will 14 fail unless supported by the regulatory framework that 15 protects basic biological requirements such as cool water 16 temperatures. 17 We ask the Board to list the Gualala as temperature 18 impaired so that each impact as it comes up has to formally 19 address temperature impairment. The fishery, the sport 20 fishery, of the Gualala River which is in the town of 21 Gualala with an increasingly tourist driven economy has been 22 severely affected by the fact that fisherman have zero 23 harvest. 24 Thank you very much. 25 CHAIRMAN BAGGETT: Thank you. CAPITOL REPORTERS (916) 923-5447 61 1 Alan Levine. 2 MR. LEVINE: Hi, my name is Alan Levine. I have been 3 working on the North Coast fishery issues and for the 4 correction of the Forest Practice Rules for 12 years, since 5 1990. And I want to add that I've worked with Craig, who 6 just spoke to you, for that period of time. He's done an 7 exemplary amount of work, and I really admire his 8 steadfastness and his knowledge. 9 I want you to know that I have worked on TMDLs also 10 from the very beginning, from the listings of the 17 North 11 Coast rivers to the final approval of the first North Coast 12 TMDL on the Garcia River, and that you just -- I forget, it 13 was October I think that you approved it. 14 I want people to know that there is life after TMDLs. 15 And, in fact, on the Garcia we had many cooperators, some 16 very large timber companies, and we've made immense progress 17 and we are seeing immense changes to the benefit of the 18 river. And this was done in some cases voluntarily and in 19 some cases other agencies had to lean on people to make 20 some movement. But after it was done, it was relatively 21 painless, and we're better off and so is the river. 22 So I want you to know also that I feel very comfortable 23 working with your staff and how hard they have worked in 24 developing the list that we're talking about right now. And 25 also the Regional Board staff. But there are some problems, CAPITOL REPORTERS (916) 923-5447 62 1 and I want to discuss them. 2 The Regional Board staff recommend listing of six North 3 Coast rivers, the Gualala amongst them. The other rivers 4 are the Big River, Russian River, Ten Mile River, Mad River 5 and Redwood Creek. And I am going to speak mostly about the 6 Gualala, but I want you to know for all intents and 7 purposes what is wrong with the Gualala and what will fix 8 the Gualala and what needs to be done is the same for all 9 the rivers. 10 I'm stating that Regional Board staff did a very good 11 job in putting an information base together for temperature, 12 proposed temperature listing for the Gualala and the other 13 rivers, and I think you have a group of papers that I have 14 given you, one with a yellow tag, and it shows that the 15 Gualala River MWATs on that graph, if you go to the yellow 16 tabs. It shows you can just briefly look at the percentage 17 over the 14.8 or 15 degree, which is 58 to 60 degree 18 Fahrenheit level and the percentage of hits on MWAT, which 19 is mean weekly average temperature, which means there is 20 significant exceedances for long periods of time in higher 21 temperature thresholds or where the maximum temperature is, 22 therefore, higher temperature or you wouldn't have that 23 MWAT. Then when you get to the sublethal area, which is 24 really bad, there are still significant hits. And I think 25 58 to 60 stations out of 62 to 64 -- I'm not sure of the CAPITOL REPORTERS (916) 923-5447 63 1 exact number. I have it in the report you have there -- 2 showed exceedances answers for long periods of time. 3 That is a lot of monitoring. So I'm saying that there 4 is sufficient information in your file for the listing. And 5 if you turn to the next graph you will see why those -- you 6 will see why those temperatures are where they are at and 7 how they correlate with the different segments or different 8 tributaries of the Gualala. And if you look in the level of 9 high disturbance or highly disturbed watersheds, most of the 10 degrees fall in that area, except for the North Fork, and 11 highly disturbed areas are showing high temperatures. 12 It is the State Board's responsibility to administer 13 for the protection of beneficial uses. And one of the major 14 land uses -- the major land use in the Gualala and the major 15 use in the other rivers is forestry. And I think that 16 you're slightly encumbered or you might put it this way, 17 that you have a problem in that even though you're 18 ultimately responsible, the Department of Forestry is your 19 agency that has lead agency responsibility. 20 I see you looking at the pictures there, and I put 21 pictures in to show you where forest practices is the 22 problem and could use some degree of correction or fixing 23 before practice rules are implementation policy in your MAA 24 with the Department of Forestry. You see a THP with 25 proposed area of almost clear cuts, where it looks like CAPITOL REPORTERS (916) 923-5447 64 1 almost everything else around it has been clear cut. That 2 THP hasn't been approved yet, but you see roads that are 3 inundated with water. You see roads that are under water. 4 You see rivers that look like roads. 5 And I want you to know that if you have a river and you 6 can't tell that it is not a road, you are going to end up 7 with high temperatures. It might be filled with sediment, 8 and that is one reason for listing. But because of that 9 sediment disposition and the pool filling that Craig 10 mentioned, most of the waters running underground and the 11 surface water temperatures are higher. There are other 12 factors that lead to increases in temperature, including 13 loss of riparian temperature, and the riparian is the 14 determinant of the climate zone in the near stream, and that 15 is a big determinant of temperature, too. 16 I'm sort of pointing the finger at forest practices, 17 and I am putting the ball in your court, and I think you 18 have the authority to do something about it. And I think 19 that if you do, then solving the TMDL problem will be a lot 20 easier. 21 On the subject of funding that Mr. Baggett brought up 22 later, I have some suggestions. One is dealing with CDF and 23 getting them to do their job or empowering your Regional 24 Board staff to have some more equal footing in the approval 25 of the THP approval process. And another thing that might CAPITOL REPORTERS (916) 923-5447 65 1 be looked at and that was mentioned earlier by David Smith 2 is basinwide planning. Because the problems on the Gualala 3 and the problems on Big River and the problems on Ten Mile 4 River are pretty much the same. The Mad and the Russian 5 River have other problems, too, and they need to be looked 6 at slightly differently. There is more impacts than just 7 forestry. 8 So I think you have an idea why you need to list the 9 rivers, and I appreciate your time. 10 CHAIRMAN BAGGETT: Thank you for your information. 11 Chris Poehlmann. 12 MR. POEHLMANN: Chairman Baggett and Board Member 13 Silva. My name is Chris Poehlmann. I live in Annapolis, 14 which is a small town right in the middle of the Gualala 15 River watershed. And these streams that Alan's graphs show, 16 I live right in the middle of those and have a lot of 17 intimate knowledge of those since I do a lot of THP review 18 and comments to the process of THP issuance. 19 I am a member of other groups that are involved in 20 restoration watershed and also protection of it. But I have 21 made the drive here today to urge you to do the correct 22 thing and list the Gualala for temperature. 23 During the review of THPs which I do -- actually I 24 should go back. The Coastal Forest Alliance, which is the 25 group I'm speaking for here, was put together in response to CAPITOL REPORTERS (916) 923-5447 66 1 a disturbing rash of applications recently for conversions 2 from conifer forests, traditional conifer forests, to 3 vineyards right in the Annapolis area. There is a cluster 4 of them right there. This is the first time this has ever 5 happened. Concern about that has brought these citizens 6 together. 7 And it brings up a very good reason why we need this 8 listing and to give it initial or additional protection for 9 the river because that along with -- I'm sure you've also 10 heard of the very newsworthy reports of a fellow from Canada 11 wanting to come down and fill up bags, ocean going bags, and 12 tow them to San Diego with the water from Gualala. 13 We need that temperature on the graph. We need that 14 protection on the ground right now, not a couple years from 15 now. And to be able to answer all the questions that this 16 is going to bring up along with, which I feel is the much 17 more disturbing question of the permanent loss of conifer 18 forests to vineyards with their impacts, i.e., water quality 19 and water quantity. They are going to make quite a few 20 reservoirs, and their plan is to hold back water to put in 21 those reservoirs for their use for the vineyards. 22 I have to also repeat, I feel that the CDF should be 23 held to the fire much more than they are, as far as their 24 responsibility as far as protecting the water quality and 25 watershed. It does not seem they are doing it after my work CAPITOL REPORTERS (916) 923-5447 67 1 with the THP, THP review. 2 Since one possibility as far as cost savings goes, if 3 that is one of the reasons why this action or watch list is 4 occurring, one possibility is a more programmatic approach, 5 using -- trying an economy of scale and during the analysis 6 of the data and collection of the data in these North Coast 7 rivers, perhaps apply the same process to everyone and to 8 expedite their listing for temperature where it is 9 appropriate. 10 So, in conclusion, I would hope that stewards of these 11 resources, that historians will have a chance to look back 12 upon us now and see that we took the opportunity and did the 13 best thing and applied the most protections possible for 14 these rivers. 15 Thank you. 16 CHAIRMAN BAGGETT: Thank you. 17 I would like to add, the watch list is not to save 18 money. It is because -- that is not the criteria. Being a 19 watch list, it is going to be expensive or not. It is the 20 data is not there or it is there. That is why we are 21 proposing the watch list. It has nothing to do with saving 22 funds. 23 Vivian Bolin. 24 MS. BOLIN: Good morning, Chairman Baggett and Board 25 Member Silva. I am Vivian Bolin with the Pacific Coast CAPITOL REPORTERS (916) 923-5447 68 1 Federation of Fishermen's Association. Our group represents 2 hundreds of fishing family businesses on the West 3 Coast. And we were one of the original signatories to kick 4 start the TMDL process. 5 I want to agree with the comments of Clean Water 6 Action, Salmonid Restoration Federation, Craig Bell, Coast 7 Action Group and the Ocean Conservancy that spoke earlier, 8 to avoid repeating what they said. 9 I am concerned about criteria for the watch list. I 10 would like to see measurable objectives and timelines or 11 that it would kick in a program of monitoring to focus on 12 collecting the needed data for those rivers being watched, 13 where you feel there is inadequate data. And I'm concerned 14 about the criteria for programs in place that you feel might 15 meet the needs of a TMDL, especially on the North Coast 16 rivers, some of the ones that are being proposed for 17 temperature listing that are already sediment impaired, some 18 of the major uses are industrial, forestry and also urban 19 roads contribute to the sedimentation of the rivers. But 20 especially to notice that the Department of Forestry 21 consistently overlooks concerns and nonconcurrences by the 22 Water Quality Board and Fish and Game on timber harvest 23 plans. 24 And so it would be a matter of concern if CDF's program 25 was considered adequate to protect the beneficial uses when CAPITOL REPORTERS (916) 923-5447 69 1 it already hasn't been, and that is why we are in the 2 situation we are in today. 3 So I believe there is more than adequate data to list 4 the six rivers for temperature that are being proposed by 5 your staff, and I believe the staff has done a very good job 6 on that. 7 Thank you for your time. 8 CHAIRMAN BAGGETT: Thank you. 9 Move to Redwood Creek. Tom Herman. 10 MR. HERMAN: Good morning, Board Members. My name is 11 Tom Herman. I am an attorney. I am here today representing 12 Barnum Timber Company. 13 Barnum Timber is a family owned enterprise that owns 14 and operates nonindustrial timberlands and rangelands in 15 Northern California, primarily in Humboldt County. My 16 client owns substantial lands in the Redwood Creek watershed 17 and is concerned about the listing of Redwood Creek as a 18 water quality limited segment. 19 We have submitted a substantial volume of evidence that 20 shows clearly and compellingly that the conditions in 21 Redwood Creek meet or exceed all applicable water quality 22 standards. I am here today to urge the State Board to take 23 the time to personally review that evidence. We are 24 confident that if you do take the time to look at the 25 evidence, you will conclude, contrary to the recommendations CAPITOL REPORTERS (916) 923-5447 70 1 of the staff of the North Coast Region and the State Board, 2 that Redwood Creek should be removed from the list. 3 We have submitted a report entitled, A Study in Change, 4 Redwood Creek and Salmon, published by CH2MHill in September 5 of 2000. This study, based upon review of all available 6 sources of information on Redwood Creek, concludes that 7 sediment conditions in Redwood Creek are well within the 8 range of the natural dynamic conditions and are presently at 9 the uppermost of the range. That is, in as good a condition 10 as has existed in the last century before the advent of 11 modern human disturbance. 12 We also submitted a letter from preemanate salmonid 13 scientist, Dr. Donald W. Chapman. Based on his review of 14 the literature we have assimilated, a personal visit to the 15 river and his expertise, he concludes that the available 16 evidence does not support a conclusion that fine sediments 17 impair the aquatic habitat of Redwood Creek and that 18 salmonid production in Redwood Creek is amongst the highest 19 ever recorded for streams along the Pacific Coast. 20 We also submitted a library of materials related to 21 conditions in Redwood Creek, consisting of some 480 sources 22 of information and two years of data on salmonid 23 reproduction that support Dr. Chapman's conclusion. 24 Again, the evidence shows that sediment conditions in 25 Redwood Creek are as good as has been experienced since the CAPITOL REPORTERS (916) 923-5447 71 1 turn of the century, and the condition of the stream is such 2 as to produce record numbers of young salmonids. Listing a 3 river with these conditions is unnecessary, inappropriate 4 and will not withstand challenge. 5 To list Redwood Creek sediments there must be 6 substantial evidence in the record that sediment conditions 7 are not meeting the applicable standards. Substantial 8 evidence does not include argument, conjecture or opinion 9 that lacks a factual basis. Substantial evidence is facts. 10 Where there is conflicting evidence, your job is to consider 11 all the evidence, both for and against listing, and as that 12 might relate to the worth of any evidence presented. 13 In the case of Redwood Creek where there is factual 14 evidence that the sediment conditions are as good as they 15 have been in over a hundred years, and that salmonids are 16 reproducing in record numbers cast serious doubt on evidence 17 to the contrary. In fact, the salmonid reproduction rates 18 in Redwood Creek defy a finding that sediment is adversely 19 affecting salmon, the beneficial use that was the basis for 20 its listing. Dr. Chapman considers evidence of outmigrating 21 salmonids to be an excellent measure of the condition of 22 that aquatic habitat. 23 If the river is capable of producing record numbers in 24 even one year, that shows that the habitat is suitable for 25 reproduction near the carrying capacity of the river. Adult CAPITOL REPORTERS (916) 923-5447 72 1 salmon counts are really not that important. They're 2 affected by a wide variety of environmental pressures, 3 particularly those in the ocean where they spend 90 percent 4 of their life. Your concern should be the condition of the 5 freshwater habitat. 6 Again, the evidence of historic sediment condition also 7 defies a finding of the conditions today are adversely 8 affecting the beneficial uses. This evidence that we 9 provided clearly slows that the conditions in Redwood Creek 10 are today very similar to what they were at the turn of the 11 century. If they are the same as they were at the turn of 12 the century, before the influence of European settlement, it 13 is illogical to conclude that such conditions are adversely 14 affecting salmonids or other beneficial uses. Remember, 15 the salmon have used this stream for some million years and 16 have evolved and adapted to the sediment rich conditions 17 that naturally occur in Redwood Creek. 18 Sediment is a natural and essential component of the 19 river system. It's oxymoronic to classify sediment as a 20 pollutant in the first place. Without sediment the fish 21 will suffer. With too much sediment the fish will suffer. 22 However, in between those extremes is a wide range of 23 sediment conditions in which the fish flourish. To conclude 24 that sediment conditions well within this range of natural 25 conditions is adverse to fish is simply wrong. CAPITOL REPORTERS (916) 923-5447 73 1 I would like to direct your attention to the thresholds 2 that were used by the staff of the North Coast Board to 3 evaluate their listing recommendations. I think I will just 4 -- there were three I wanted to comment on. I think in the 5 interest of time, let me just comment on one because I think 6 this one is sort of a clincher. 7 There is a metric that was developed called V-star that 8 is used to measure sediment dynamics in rivers. And the 9 North Coast staff cites literature from the geologic type 10 found in Redwood Creek called the Franciscan formation. 11 They found, based upon measurement of 60 streams, that 12 V-star levels of .21 or less represented good stream 13 conditions. The staff, however, found some other literature 14 of measurements in one stream in the Franciscan formation 15 where the V-star was measured at .09, and decided that they 16 should average .09 with .21. And I would submit that a 17 grade school math student can see the fallacy in that that 18 you don't give one sample the same weight as 60 samples. 19 This is an example of the kind of criteria that is 20 developed, and I think if you look closely at the literature 21 they site and the threshold of concerns they have set up, 22 the vast majority of those are set at levels below that 23 cited in the literature. 24 When considering the recommendations of the Regional 25 Board staff and your staff, you need to keep in mind their CAPITOL REPORTERS (916) 923-5447 74 1 probable motivations. Clearly the more water bodies listed, 2 the more work that must be performed, the more staff that is 3 needed to accomplish it. It gives staff a greater influence 4 on land management decisions within their jurisdiction. 5 Listing under 303(d) is affecting a major shift in 6 government land management regulation from those agencies 7 specifically established for that purpose by the Legislature 8 to the water agencies. The Legislature did not intend that 9 result when they created this agency. 10 You need to give the staff's recommendation a critical 11 eye considering their self-interest in the expanding list. 12 They are recommending listing of rivers, like Redwood Creek, 13 for conditions are now like that of undisturbed, pristine 14 rivers. We are confident that reasonable consideration of 15 the evidence on Redwood Creek will lead you to a 16 determination that sediment conditions meet all applicable 17 water quality standards. 18 And just a point, I guess, on temperatures since there 19 is some prospect that Redwood Creek could also be listed for 20 temperature, I have a question about the thresholds adopted 21 for temperature. If you look closely at the literature that 22 is cited to establish the threshold temperature of concern, 23 you will find much of that literature comes from more 24 northern latitudes in British Columbia, Washington and 25 Oregon, where quite inherently by the latitude of those CAPITOL REPORTERS (916) 923-5447 75 1 locations one would expect cooler temperatures. 2 I have submitted some written comments. I gave it to 3 the young lady earlier. I think you have those. 4 I thank you for the opportunity to speak, and I would 5 be happy to answer any questions that you might have. 6 CHAIRMAN BAGGETT: So you are proposing to delist for 7 sediment? 8 MR. HERMAN: Yes. 9 CHAIRMAN BAGGETT: And for proposal before us right now 10 is to add temperature as a watch list. You are proposing 11 that it doesn't need even to be watched? 12 MR. HERMAN: That is correct. 13 CHAIRMAN BAGGETT: Very good. 14 Thank you. 15 MR. HERMAN: Thank you. 16 CHAIRMAN BAGGETT: Bernie Bush. 17 MR. BUSH: Good morning, Chairman Baggett, Vice 18 Chairman Silva. My name is Bernie Bush. I am here this 19 morning representing the Redwood Creek Landowners 20 Association. 21 Our association is comprised of ten landowners ranging 22 from small to large and who own and manage tracts in the 23 Redwood Creek Basin. Our collective land ownership 24 encompasses roughly 85 percent of the privately owned land 25 in the Redwood Creek drainage, recognizing that almost half CAPITOL REPORTERS (916) 923-5447 76 1 of it is, of course, Redwood National Park. 2 I submitted a letter dated October 8th and focus some 3 brief comments on sediment. And the hearing for the listing 4 or proposed listing for temperature impairment was held -- I 5 submitted that letter in October. The hearing for 6 temperature impairment was held in December. We support the 7 Board's placement on the watch list of Redwood Creek as 8 being temperature impaired, or it not being included at 9 all. Either of the two would be fine. Certainly we 10 wouldn't support a listing. 11 We brought forward information at that point in time, 12 as Mr. Herman just generally referenced, that the work that 13 supported the impairment of -- this falling microphone. 14 CHAIRMAN BAGGETT: Just set it down. 15 MR. BUSH: The work that supported that the staff used 16 to support the proposal for listing as temperature impaired 17 was done by Kate Sullivan, Dr. Kate Sullivan, in the Pacific 18 Northwest. As Mr. Herman just made a general comment, I 19 would add that the groundwater temperatures where Ms. 20 Sullivan did her work, which was in the state of Washington, 21 generally, and I believe northern Oregon, groundwater 22 temperatures are approximately 9.3, 0.3 degrees centigrade, 23 in other words, colder. 24 Our groundwater temperatures in the Redwood Creek area, 25 the Mad River area, the groundwater temperatures there CAPITOL REPORTERS (916) 923-5447 77 1 exceed 13 degrees perhaps or 12 degrees. They are between 2 12 and 13 degrees. The issue of latitude is very important. 3 I think you need to take into consideration when you are 4 talking about temperature listings, that your region, not 5 your region, Region 1, is a north to south narrow region, 6 encompassing a wide range, and therein a discussion, general 7 discussions, of temperature listing which would have to take 8 into consideration that distinction. 9 And I think placement on a watch list for more 10 discussion and review is appropriate. I think honestly in 11 the area of Redwood Creek delisting or simply not including 12 it at all would be appropriate. The National Marine 13 Fisheries representation, a little earlier today made a 14 general comment on temperature listings for all those 15 rivers. The National Marine Fisheries folks, landowners of 16 our association work with in the Redwood Creek area, have 17 agreed in some planning, longer term planning, for aquatic 18 species that the threshold temperature in that area was 19 closer to 17 degrees and even slightly above 17.2 or three. 20 So my point is a threshold of 14.8, which was what was 21 the original listings were based upon, which is what was 22 included in Kate Sullivan's work, is just inappropriate for 23 the entire region, just the size of the region. 24 It was mentioned earlier as well that, of course, or 25 noted that the beneficial use we are talking about as being CAPITOL REPORTERS (916) 923-5447 78 1 impaired is the cold water fishery, anadromous fish, 2 salmonids. The listing occurred in the early '90s, the 3 original listing, in the early '90s, at which time ocean 4 temperatures and other factors had resulted in the 5 significant decline of salmon all along the Western Coast. 6 During the -- as Mr. Herman mentioned, publication, A Study 7 in Change for Redwood Creek and Salmon, dated our September 8 2000, our association sponsored that, the production of that 9 document. We had that -- contracted to have that put 10 together. 11 In doing so, as we looked at the research and a number 12 of references that are included in all of those documents, 13 what we noticed was that there was a paucity of information 14 on fish counts, on the issue that is before us regarding the 15 listing. What our association decided to do three years ago 16 then was pool our money and initiate some outmigrant fish 17 trapping in Redwood Creek. In other words, we hear an awful 18 lot of discussion about habitat factors, dueling scientists, 19 folks saying this is what we need, this is what we don't 20 need. Why don't we go take a look? Why don't we ask the 21 fish as is included in some of the documents that you have 22 received. 23 The first year our association sponsored that fish 24 trapping effort, and we counted close to half a million 25 salmon going out, migrating out, healthy salmon of the sizes CAPITOL REPORTERS (916) 923-5447 79 1 that are appropriate for outmigration. 2 That caught Fish and Game's attention. These last two 3 years, last year and again this year, and for the next three 4 years we have a commitment from the Department of Fish and 5 Game to continue to sponsor that trap and work with us. And 6 the data seems to be the same. It was consistent in the 7 second year with the first, and certainly this year's 8 numbers are very consistent with those first two years. So 9 what we are saying is that the reason that the river is 10 listed is the fishery, and we've got an awful lot of fish. 11 So it seems that the fish disagree with some of the 12 arguments regarding the parameters for listing. 13 There is also summarized in our publication regarding 14 sediment. We believe that the cyclical sedimentation 15 patterns in Redwood Creek are governed by local geology, 16 tectonics, and climatic events, tectonics and climate that 17 normally shift very quickly. Most sediment is deposited 18 during rare dramatic ecological events. Most sediment is 19 transported by continual flows. Sediment levels in Redwood 20 Creek, as Mr. Herman just mentioned, have returned, nearly 21 returned levels that preceded the early '50s through '75, 22 that 25-year flooding period. It cycled back. 23 Cooperative efforts between our association and 24 Redwood Creek or Redwood National State Park are currently 25 addressing potential sediment sources. I guess the bottom CAPITOL REPORTERS (916) 923-5447 80 1 line to finish in the interest of time, the basis for my 2 letter as it was focused on sediment at the time was to 3 request that the Water Board consider at the very least 4 taking the upper two-thirds of Redwood Creek. In other 5 words, what is above the park off the list as being sediment 6 impaired. We are producing lots of fish. We really believe 7 the real problem is in the estuary. We believe that with 8 the actions we are taking and some of the things I heard 9 this morning, that will be the newer criteria for looking at 10 listings. I believe some of those apply very directly to 11 the issues here in Redwood Creek, and that today it could 12 not be supported as being impaired or listed for impairment. 13 I have a last PS, if you will. On the documents, the 14 staff documents, regarding the temperature impairment, there 15 is a reference in the thing that there is insufficient 16 information to list the MWATs and so-called values for the 17 Ten Mile River which is included in the Redwood Creek plot. 18 So I would just point that out, that it was either a typo or 19 some information is in the wrong spot and you may want to 20 look at that. I think you want to say the values for 21 Redwood Creek as opposed to the Ten Mile River. Each of the 22 other rivers have their own designation. 23 Any questions? 24 Thank you. 25 CHAIRMAN BAGGETT: Thank you. CAPITOL REPORTERS (916) 923-5447 81 1 Richard Gienger. 2 MR. GIENGER: Good morning, Mr. Baggett, Mr. Silva, 3 State Water Board staff. 4 I just had a couple comments. I think your TMDL 5 process is really important to getting a multidisciplinary 6 look at recovery and protecting beneficial uses of water. 7 There are definitely problems. Trying to enable landowners 8 to cope with the needs of the recovering these beneficial 9 uses of water, and I don't know how extensive you all or 10 anything else needs to go on this, but there needs to be 11 adequate funding, personal, consultation and material help 12 to enable these watercourses to be delisted. 13 I'm going to leave you one copy -- I'll try to bring 14 some more copies back this afternoon -- the report of the 15 U.C. team and the scientific basis for prediction of 16 cumulative impacts which relates to this issue of TMDLs. 17 TMDL is basically a significant part of cumulative watershed 18 effects process. And in there among the impediments, which 19 relates to this process here, information and knowledge 20 impediments, absence monitoring of habitats, populations and 21 water quality, inadequate technical expertise and lack of 22 scientific knowledge. 23 Among the economic and social impediments are 24 inadequate funding and time and adversarial relationship 25 between industry and scientists, and you can extrapolate CAPITOL REPORTERS (916) 923-5447 82 1 between landowners and agencies. These things really need 2 to be addressed. I don't think in all due respect to the 3 Mattole residents, talking about the edge of the Mattole, I 4 don't think it should be delisted, and I think that this 5 could be a process to bring people together who went through 6 the nasty Mattole sensitive watershed process and everybody 7 knows there is problems there and leery of official names in 8 the river, so forth. But I think this process can actually 9 be positive to all involved if there is enough resources to 10 actually deal with the problem. 11 Also, I would like to commend you all for putting Usal 12 Creek on the watch list for sediment. I believe that it 13 qualifies as sediment impaired and let's see what happens in 14 the coming years. 15 CHAIRMAN BAGGETT: So just to interrupt for a second. 16 So in Mattole we disagreed that it should be delisted? 17 MR. GIENGER: I don't think it should be delisted. I 18 think its listing is very well warranted. I think in order 19 to cope with the extent of the problems there, there needs 20 to be enough resources to get some of the problems going. A 21 lot of these things are really quite obvious. Two of the 22 obvious ones have been addressed, the Garcia to some 23 degree, I think, some lists and others. 24 There needs to be a replanting program to deal with the 25 problem of temperatures. There has been no comprehensive CAPITOL REPORTERS (916) 923-5447 83 1 replanting program for riparian areas and I think is very 2 key in a lot of places, and also some is doable in terms of 3 treating sediment sources. 4 CHAIRMAN BAGGETT: So in terms of the Garcia it is a 5 question I meant to ask earlier. The Garcia has been before 6 this Board a number of times, and the last time it was 7 basically everybody seemed in agreement. So since October 8 has that action made you support it, being familiar with the 9 Garcia? 10 MR. GIENGER: I do support. In conversation with some 11 of the Mattole people here, they are of the opinion that 12 doing such a program on the Garcia will put them out of 13 business. 14 CHAIRMAN BAGGETT: You mean on the Mattole? 15 MR. GIENGER: Right, exactly. Really, I worry about 16 that. Things haven't been tried out yet. PL saying let our 17 HCP work. I think we should try it, some of this TMDL work, 18 too. I can't overemphasize too much the need to have an 19 interdisciplinary approach that includes water quality. 20 Fish and Game and other agencies involved in implementing 21 this process. 22 CHAIRMAN BAGGETT: Charles Ciancio. 23 Apologize. 24 MR. CIANCIO: No problem. 25 Hi, I'm Charles Ciancio. I am a small landowner and I CAPITOL REPORTERS (916) 923-5447 84 1 am a professional consultant that's worked on the North 2 Coast. 3 The only reason I got into the Redwood Creek slot is 4 that I kind of used it as an example to illustrate a couple 5 of comments I have. 6 In the letter that I sent, the cover letter, there is a 7 bunch of information attached that is just to show you I 8 have been involved in the process for a long time. It is 9 kind of a long list of the questions that have been coming 10 up regarding the listing process or any of the input 11 processes that we have gone through. We have been doing 12 this for a long time. And I've got it broken down in the 13 short time here to cover four topics and get four 14 questions. 15 We are told the best way to participate is to work with 16 the staff, go to the training sessions. What we are finding 17 is the Board -- our input is not really getting to the Board 18 members, even at the regional level. I don't know about you 19 folks, what you are getting. 20 It's kind of a filter process going on there. And is a 21 lot of questions that aren't being answered. That is why a 22 lot of folks are here; they are concerned. They don't know 23 what is going on. They really don't. 24 One of my questions was what can we do to get you 25 folks, the Board Members, because you're the ones making the CAPITOL REPORTERS (916) 923-5447 85 1 decision. Staff is the one telling you how to make your 2 decision. 3 Regarding Redwood Creek, item number 2 here, I made an 4 inquiry. I picked Redwood Creek. I said why is it listed 5 impaired. And I started with North Coast staff. They 6 couldn't tell me, and ended with David Smith eventually. 7 Had to do some phone calling. And he sent me a couple of 8 things. I read them over. And it was the sole basis -- I 9 guess this goes way back to '92 when you did the first 10 listing for something things. And all it was was two 11 reports from water quality that said professional opinion, 12 judgment. That was it, not citing specific fact, and one 13 American Fishery Society article on general conditions of 14 streams, and Redwood Creek wasn't even mentioned in the 15 article. That was the basis that you listed that impaired, 16 and a lot of streams on that basis. And that is not right. 17 And regarding Redwood Creek, you heard there was a lot 18 of data they put in. I heard the story was that five to 19 nine boxes, file boxes, of information was provided. The 20 North Coast staff said that we haven't got time to review 21 it, so we can't consider it. So I'm wondering if that stuff 22 all got to you guys here at the state level. We might want 23 to -- 24 CHAIRMAN BAGGETT: Yes. 25 MR. CIANCIO: You got them all? Did you get them all? CAPITOL REPORTERS (916) 923-5447 86 1 CHAIRMAN BAGGETT: Yes. 2 MR. CIANCIO: Have you had a chance to review it all? 3 MR. LEVY: We reviewed a lot of the data that's out 4 there and a lot of the Regional Board has done. We didn't 5 review every last piece of information. 6 MR. CIANCIO: But you looked at all of it. 7 MR. LEVY: We looked at each part. 8 Mr. Chairman, staff will be reviewing every piece of 9 data and information for the ultimate report before we are 10 done. 11 MR. CIANCIO: I'm just curious why that story got 12 started. I heard it was in a report, and then the report 13 came out later when that wasn't in there. Interesting 14 story. 15 CHAIRMAN BAGGETT: As you can tell, we're spending 16 probably three to four days going over every one of these 17 lists as proposed delisting as a Board and/or my 18 colleagues. 19 MR. CIANCO: It's just kind of hard for you guys to go 20 through seven boxes in three days. It's pretty dumb. 21 CHAIRMAN BAGGETT: We'll be sure everything is 22 analyzed. That is our job. 23 MR. CIANCIO: During the prehearing training sessions 24 and other meetings -- and this goes into implementation 25 plans. This is why everybody is nervous. You got your CAPITOL REPORTERS (916) 923-5447 87 1 listing. You got your TMDLs, and you got your 2 implementation plan. 3 The Garcia is the one approved plan you got. There is 4 no required timeline review in there. There is no forms or 5 anything. Everything is left up to staff to yeah or nay, 6 bless it or whatever. And there doesn't seem to be a good 7 appeal process for a landowner if he feels that the agency 8 has overstepped its bounds or done something there. 9 So the question is: What is a landowner to do? That 10 is one of the things hanging out there. 11 CHAIRMAN BAGGETT: The process is, so you know, all the 12 TMDLs ultimately have to be approved by the State Board. 13 There is -- they come through here. All the listings are 14 going to be listed by our Board. These are recommendations 15 from the regions. You are in the middle of your process 16 right now. 17 MR. CIANCIO: But the Garcia is in place, and we had a 18 spokesman come from the Garcia and talk to us up north there 19 about what they are going through. My understanding is that 20 no one has gone through the process yet, so all these 21 questions are still hanging out there. And when the folks, 22 the landowners are asking them, it would be nice to get some 23 definite answers instead of this general stuff, because we 24 don't know where we are going. If you read that plan, there 25 is a lot of definitions and things in there you don't CAPITOL REPORTERS (916) 923-5447 88 1 understand. 2 Then the final item I had was that the workshop up at 3 Eureka on February 27th, one of the staff members held a 4 thick book and called it the Bible. And I have been trying 5 to find out what the Bible is. And I wrote a letter asking 6 how to get it, where to see it, library, whatever, and I get 7 nothing. I haven't got anything. So I'm really curious 8 what this Bible is. They said that is what they use for 9 their monitoring and setting all this stuff up. 10 And in closing kind of interesting. I wasn't aware of 11 this watch list. I kind of backslid here keeping track of 12 everything. That is a possible tool to put some of these 13 things that are not significant problem areas on a list and 14 review them and do the right thing by them, get some good 15 data and really find what is going on. That's it. 16 CHAIRMAN BAGGETT: Thank you. 17 Couple more on Redwood Creek. 18 Tom Weseloh. 19 MR. WESELOH: I'm Tom Weseloh, the North Coast manager 20 for California Trout. Thanks for giving us the opportunity 21 to provide testimony today. 22 California Trout has about 6,000 members statewide, and 23 we are concerned about all of the water bodies within the 24 state. We are some of the original coplaintiffs in the TMDL 25 litigation, and we appreciate the hard work of the Board and CAPITOL REPORTERS (916) 923-5447 89 1 staff to get us where we are today. 2 We would like to provide a lot of comments, but I 3 really don't know where to start because I wanted to give 4 general comments, but I've actually been in the water on the 5 Mattole. I've been in the water on Redwood Creek. I've 6 been in the water on Mad River and a lot of these other 7 watersheds there, and I think what Bernie Bush said was we 8 ought to get in here and look at what the fish are doing. I 9 couldn't agree more. 10 I wish we could take everybody in this meeting and put 11 masks and snorkels on and get them out there. Because 12 instead of debating agriculture whose information is best, 13 you could actually see what the fish are doing. 14 What I wanted to do is, instead of going through my 15 general comments, I will say that I do support some of the 16 comments made by Clean Water Action and Ocean Conservancy 17 regarding the watch list and some of the other issues they 18 brought up. I want to get to some specifics. For instance, 19 Redwood Creek. A lot of these do apply to the specifics on 20 the Mattole and on Mad River which will be coming up as 21 well. 22 I have literally walked Redwood Creek for most of the 23 anadromous reach. I kayaked it as well. I put on a mask 24 and snorkeled and dove most of it and have done one reach of 25 it in the middle reach, I guess I'd call it the middle reach CAPITOL REPORTERS (916) 923-5447 90 1 in Redwood Valley, five years in a row to do summer 2 steelhead surveys and look for other species. 3 I have a lot of sympathy for the landowners out there 4 in a lot of ways. As a fisherman I have been regulated 5 first and foremost and worst in comparison to the landowners 6 that are now feeling regulation coming their direction. We 7 have constantly had our seasons cut back, eliminated. You 8 can keep any fish in Redwood Creek at all. You can only 9 fish the lower few miles of it. You can't fish any of the 10 tributaries. You can't fish if it is too low. You can't 11 fish if it is too high because it is too turbid most of the 12 time. You can't use anything other than marble sump shaft 13 to let them all go. We only get a few miles to fish at 14 various certain times. We've been regulated almost to 15 death. 16 We understand the reasons behind that, and so I am very 17 sympathetic to people that feel regulation is overburdensome 18 in coming their way. But I also appreciate their efforts to 19 monitor and assess the watershed and to do restoration 20 efforts. But the fact of the matter is there we have 21 impairments. It is sediment impaired. It is temperature 22 impaired. There is no doubt about it. You have more than 23 ample information. You don't need any watch list or 24 anything else. Those water temperatures hit the high 70s 25 every year. There is overwhelming abundance of information. CAPITOL REPORTERS (916) 923-5447 91 1 The reports that I have show that. The reports Redwood 2 National Park, Fish and Game, anybody else out there. They 3 even have problems running their downstream migrant traps at 4 times because temperature causes stress to the fish, and you 5 get to the point where the temperatures get so high you have 6 to be careful handling fish. 7 CHAIRMAN BAGGETT: Are you going to provide us, the 8 Board, with written comments? 9 MR. WESELOH: I believe most of those comments have 10 already been submitted. I guess it is just how they are 11 interpreted. I guess what I would like to look at is 12 numbers of fish are not the ultimate measure. We have 13 species that are not there. So if we have half a million of 14 one species and zero of another, we have a problem. 15 CHAIRMAN BAGGETT: Has Cal Trout issued formal 16 comments? That is what -- I haven't found you. 17 MR. WESELOH: Written ones? No. We will. I didn't 18 know some of the comments that were coming in here and some 19 of the interpretations I have heard regarding the 20 information. 21 CHAIRMAN BAGGETT: We have until the 15th of June. 22 MR. WESELOH: I'll go back and pull out my old reports 23 and submit them and provide you with some comments. 24 CHAIRMAN BAGGETT: Site-specific because that is what 25 we're trying to look at, not what is going on in Oregon or CAPITOL REPORTERS (916) 923-5447 92 1 what is going on in Washington. We are looking at each 2 watershed, and we realize it has impact on people who live 3 and work and recreate there. So the more specific the 4 comments and the science is the better. That is what we are 5 trying to get at here is based on information for that 6 particular water body. So, please, if you have information, 7 get it to us. 8 MR. WESELOH: I will. I very much appreciate that. 9 But what I would like to let you know right now while I am 10 here is that what you see when you do those dives, and I 11 have seen it on Mattole, Mad, Redwood Creek. I was hired by 12 the Department of Fish and Game almost 20 years ago to do 13 this. I have worked for Humboldt State University, 14 volunteered with Redwood National Park, and I have dove 15 literally thousands of miles of streams. When you get your 16 head wet, what you will see is very few species, and some of 17 them are relatively abundant, relatively. 18 But in an area like Redwood Creek that had chum salmon 19 and had coho salmon, I documented them five years in a row 20 in the '90s, and now they are not getting any in the 21 downstream migrant trap in the same area that had coastal 22 cut throat trout up in that area, that had summer steelhead. 23 Yeah, you know, the trend is very good for the last ten 24 years. We have somewhere between none and about 20 fish a 25 year. Those fish what you are seeing now is just steelhead CAPITOL REPORTERS (916) 923-5447 93 1 and chinook salmon for the most part in the upper river. 2 Those chinook salmon do not have to spend an entire summer 3 there. They don't. They leave before those temperatures 4 get that high. 5 The steelhead have a far higher temperature tolerance 6 than do coho, by as much as 15 to 20 degrees. So what you 7 are seeing is fish that can survive in those temperatures 8 barely hanging on, and you will see them in the bubble 9 curtain where they have to have increased oxygen demands due 10 to the high water temperatures. The distribution of those 11 fish is not throughout the watershed. It is not throughout 12 each and every pool and hole. They are concentrated in any 13 cold water seeps they can, in any cool water tributaries. 14 They huddle around them. And basically I would have to say 15 90 to 95 percent of the steelhead I find are directly 16 related to what few cold water sources we have left. 17 And like I said, coho salmon, we are not even seeing 18 them in the upper part of the watershed anymore because they 19 do not tolerate those temperatures. So what we are really 20 looking at is we are temperature impaired. We are sediment 21 impaired. And what I'm really concerned about is that when 22 we put these rivers and water bodies on the lists, we do it 23 based on biology. And where the landowners' concerns come 24 into play is how do we address that. And I think what we 25 need to have is arguments where we are making the decisions CAPITOL REPORTERS (916) 923-5447 94 1 is the facts, yes, we have high water temperatures. We have 2 high turbidity levels. They are impacting the fish. And 3 one of the concerns I heard from landowners, which there is 4 loud and credible concerns come into play, is how do we 5 address that group implementation. 6 CHAIRMAN BAGGETT: How has the Garcia worked, in your 7 opinion? You seem to be familiar with the North Coast 8 rivers. That is one of the implementation plans that's been 9 adopted is the region plan. It's made it through OAL. It's 10 made it through EPA. 11 MR. WESELOH: I am not as familiar as I should be with 12 it, but I do believe that it is the proper approach to be 13 taking, and I do believe bringing those parties together and 14 working with them on implementation plans is the correct way 15 to go. And I look forward to working with you and your 16 staff to do. I thank you for this opportunity to come up 17 here and speak. But what I really think what we are hearing 18 is a variety of messages. And I think first we have to base 19 it on the biological merit, and then where the rubber really 20 hits the road where we resolve the problems that I am 21 hearing mostly today is not really whether we have the 22 technical information. I think it is there in spades, but 23 is how we implement it and how we make it so we don't put 24 everybody out of business trying to do the right thing, and 25 we deal with priorities and we deal with what is really CAPITOL REPORTERS (916) 923-5447 95 1 going to impact the rivers as far as temperature, sediment 2 and other pollutants and how that is going to impact the 3 fish. 4 Thank you very much for your time and your 5 consideration. 6 CHAIRMAN BAGGETT: Get us some information. That is 7 what -- this part is the listening part, so it is based on 8 information and science. If you can help us, we would 9 appreciate it. 10 MR. WESELOH: Thank you. 11 Do you have any other questions? 12 Thank you for your time. 13 CHAIRMAN BAGGETT: Thank you. 14 Daniel Myers, the last Region 1 person, the North 15 Coast. 16 MR. MYERS: My name is Daniel Myers. I am with the 17 Friends of Navarro watershed. The Navarro is not one of the 18 listed rivers that are issued here today. But the Navarro 19 was listed for temperature a couple of years ago. I 20 believe with basically the same criteria that the regional 21 staff recommended the listing of temperature for six of the 22 other coastal rivers that basically surround the Navarro. 23 The conditions not significantly different. The basic 24 difference is that we have a different Board today than we 25 had two years ago. CAPITOL REPORTERS (916) 923-5447 96 1 In November when the 303(d) listing was put out, the 2 North Coast Regional Board was almost at a standstill. It 3 was either without a quorum or nearly at that point. And 4 the same month that that list came out four new members of 5 the North Coast Regional Board were appointed. And they 6 subsequently had some hearings at the Board where they were 7 given instructional background on the TMDL process. They 8 put training wheels on the Regional Board at that point. 9 Not long after that they had -- they were smart enough 10 to overturn the decision of their staff, who had been there 11 for many years, that their recommendation to list the six 12 regional coastal rivers was not a sound decision and 13 overturned it. And I submit that this group should exercise 14 your oversight and correct that mistake on the part of 15 Regional Board. 16 I would offer another reason. All of these rivers are 17 listed for sediment, the ones that have been listed for -- 18 requested that they be listed for temperature and are now on 19 the watch list, much of the remediation efforts that take 20 place can be better done if they are dealing with both of 21 those problems at the same time. If you are dealing with 22 remediation on temperature and sediment, there is issues 23 like Craig Bell brought up about pool depth. It is a factor 24 for temperature, but it is caused by sediment. And to deal 25 with TMDLs for sediment at this point on these six rivers, CAPITOL REPORTERS (916) 923-5447 97 1 but to put off for two or four years the TMDL for 2 temperature is a mistake. In other words, they should be 3 listed for temperature now, and the problem should be dealt 4 with in combination on these things. 5 I would like to also comment on the aspect of the watch 6 list. I support the comments of NMFS and Clean Water Action 7 of San Francisco. I think this is a gross mistake to have a 8 watch list. You can't play baseball if the umpires call 9 balls for strikes and have a watch list. It wouldn't work 10 that way very well. I don't think this will either. I 11 don't know of any governmental Board who the members of 12 that Board have to make decisions which are politically 13 unpopular, given the opportunity to whimp out with a watch 14 list. I know very well what you are trying to do. You are 15 going to get a very long watch list and a very few number of 16 items on the TMDL. I think the Clean Water Act calls for a 17 knife edge decision. The river is impaired or it is not. 18 If you don't have to make that knife edge decision, it 19 is real easy to just say, well, we will put it on the watch 20 list and come back to it in two years and two years and two 21 years. So I'm a little shocked at the EPA welcomes the 22 watch list. I sure don't and I would again encourage State 23 Water Resources Control Board to exercise oversight and to 24 put those six rivers back on the TMDL list. 25 Thank you very much. CAPITOL REPORTERS (916) 923-5447 98 1 CHAIRMAN BAGGETT: Thank you. 2 Had a strategic decision to make here. I've got five 3 minutes. I've got to be on a conference call at noon back 4 East. We can break for lunch and come back at 1:30 or Pete 5 can just go through and finish -- there is only four cards, 6 San Francisco. Just go for it. 7 Let's take a five-minute break. We will come back with 8 four spokespeople from Region 2 issues, and then we will be 9 done for the day. So we will just go straight through. 10 Recess for five. 11 (Break taken.) 12 MEMBER SILVA: Why don't we get started again. 13 While you're all sitting down, we just completed Region 14 1. We are going to start into comments on Region 2, and the 15 first speaker I have is David Tucker. 16 MR. TUCKER: Good afternoon. My name is Dave Tucker. 17 I am with the City of San Jose Environmental Service 18 Department. I have a couple general comments. I will go 19 through them quickly. Other speakers have pretty much said 20 the same thing a number of times. 21 We do support on the watch list. We think it is a 22 great idea. We need to get the data sufficient before we 23 should make the decision one way or the other. We believe 24 in the weight of the evidence, and we encourage the Board to 25 work on that with the PAG, if at all possible. I think CAPITOL REPORTERS (916) 923-5447 99 1 there needs to be defined standards for the data quality as 2 well as quantity. There needs to be a very important 3 emphasis on the public process. 4 My one specific comment is related to San Francisco, is 5 yesterday the San Francisco Regional Board actually adopted 6 revised standards for both copper and nickel for the 7 extreme South Bay. We believe this supplies all the 8 evidence necessary to delist copper. Nickel has already 9 been recommended for delisting. We recommend that the State 10 Board and Regional Board staff to make that happen. 11 I thank you very much for that. 12 MEMBER SILVA: Thank you. 13 Ray Arnold. 14 MR. ARNOLD: Good afternoon, Mr. Silva. My name is 15 Ray Arnold with the Copper Development Association in New 16 York City, and I have flown out today mainly to address any 17 technical issues that you might have, if it did occur, 18 during the comment period, so I don't have a lot to say. I 19 support what Mr. Tucker said in his issues, but I want to 20 make a few comments. 21 I would like to comment on that the groups or parties 22 involved, such as the NGOs, Regional Board, EPA, the 23 dischargers, did what I feel was a very good job in a very 24 difficult situation, to go about the process for developing 25 the data to support the site-specific objective and I think CAPITOL REPORTERS (916) 923-5447 100 1 they should be commended on that process. We support the 2 delisting of South San Francisco Bay for copper, and we 3 believe that the work process was supported by sound science 4 and it is backed by EPA guidance in the process, which is 5 what they needed to go through to develop those 6 site-specific objectives. We just feel that is where it 7 should be. It should be delisted. 8 Thank you. 9 MEMBER SILVA: Thank You. 10 Jonathan Kaplan. 11 MR. KAPLAN: Jonathan Kaplan for WaterKeepers of 12 Northern California. We appreciate all the hard work that 13 has gone into this list. We are particularly grateful for 14 State Board staff and for all the public meetings that they 15 held. For Richard coming down to San Francisco, I can't 16 tell you what that does to me here. 17 We support the Board's decision to go with the '98 18 list. We don't want to spend a lot of precious time and 19 resources recreating the wheel on that. I do have some 20 concerns, however, with the proposed list. We, along with 21 the other environmental groups you have heard from today, 22 strongly oppose the concept of the watch list. We feel 23 there is no authority for it under the Clean Water Act. It 24 has already and will continue to become a tool for delaying 25 action on waters that are impaired. We also point out there CAPITOL REPORTERS (916) 923-5447 101 1 doesn't appear to be any actual need for a watch list. I 2 don't think anybody is concerned that we all are going to 3 somehow forget about waters that are possibly impaired or 4 that need more study. But when you prepare a watch list 5 with the 303(d) listing, it simply is an alternative 303(d) 6 listing and it becomes a missing link and has made it a lot 7 easier to look the other way in addressing some of the hard 8 questions. 9 We are very concerned about the proposed TMDLs 10 completed list. The prospect of delisting an impaired water 11 body just because we develop a TMDL, but haven't yet 12 implemented it successfully is very structurally thin. I 13 would suggest that you could have a water body actually 14 impaired to support beneficial use, coming off the 303(d) 15 listing before the TMDL is complete, that doesn't seem to 16 make sense. 17 I would point out, as you all know, the 303(d) listing, 18 as with all other kinds of protections are in addition to 19 drinking TMDL. If a water body is listed, it makes it 20 easier for local agencies and governments to get funding to 21 clean up that water body. It triggers provisions, for 22 example, AB 885 to address particular system discharges. It 23 is likely to require construction under the statewide 24 process. Those wouldn't be there if a water body is not 25 listed on the 303(d) listing. So listing is actually very CAPITOL REPORTERS (916) 923-5447 102 1 important. 2 We are concerned that the Boards, Regional Boards and 3 State, are taking what I think is one of few straightforward 4 provisions of Clean Water Act and making it complicated, 5 that the Section 303(d) listing simply says it is a case for 6 any water body where current implementations are not 7 stringent enough to attain all water quality standards, you 8 have to list it, period. Yet what we received in the 9 proposed list are rationale for not listing that are 10 completely devoid and separate from the question of actual 11 impairment. So the notion that we don't have to list a 12 water body because there is an alternative program, and 13 often the alternative program is very troubling. 14 In my region, the San Francisco Bay, protects toxics 15 hot spots and identifies the water bodies which are very 16 polluted. We have been very polluted for a very long time 17 and from which there is no clear end point in sight as to 18 when those water bodies are going to be restored. Yet the 19 Board, the Regional Board, wanted to list these, and the 20 State Board overturned the Regional Board's proposal in this 21 case and is now proposing to put these water bodies on a 22 watch list, which obviously is not going to accelerate clean 23 up for the waters. 24 So this takes that tool away from communities, for 25 example, in the environment very strict listed areas already CAPITOL REPORTERS (916) 923-5447 103 1 subject to the landfill pollution and clays. Their 2 expectation is to clean up waterways. Again, the Clean 3 Water Act does not say list waters that impaired except 4 where this is an alternative program. There is no authority 5 for this caveat. We are simply concerned that decisions to 6 not list are being made because of uncertainty about sources 7 of pollutants or where there is an effect based on 8 impairment where we don't have a particular pollutant 9 identified, where we don't have documented ambient toxicity, 10 for example. It may be okay in Florida to do it, but in 11 California in Region 2 ambient toxicity is a violation of 12 water quality standards. Therefore, by definition it is 13 impairment. 14 I don't think that we can rationally decide not to 15 propose listing of water bodies that have ambient toxicity 16 or other effect-based impairment simply because we have yet 17 identified the pollutant that's probably not gone through a 18 TMDL process. 19 I would like to raise some questions about the proposed 20 delisting for copper and nickel in the San Francisco Bay. 21 The rationale for the delisting was obviously a huge 22 ramification for permitting around the Bay. I realize 23 growth and progress may have dictated. That is a great 24 accomplishment. I am concerned that we are putting the cart 25 before the horse in proposing delisting here. The original CAPITOL REPORTERS (916) 923-5447 104 1 delisting was based on -- I guess the original delisting 2 proposal from the Regional Board in San Francisco was based 3 on Basin Plan standards. However, that would make it hard 4 to delist the South Bay because they're impaired. If you 5 use existing Basin Plan standards, that would make it hard 6 to the mouth of the Petaluma River. The Basin Plan was 7 amended yesterday for the South Bay. That hasn't yet gone 8 through the OAL process, is not yet complete. 9 The Regional Board changed its rationale for that 10 delisting, using an effects ratio based method of 11 calculating a much higher standard of copper that was based 12 from, you know, the mandates from the California Toxics 13 Rule. But if you look at California Toxics Rule, that 14 document clearly says that for San Francisco the standards 15 is not the California Toxics Rule but, in fact, the Basin 16 Plan. And if you go back to the Basin Plan, there is no 17 standard there. So we haven't quite -- we need a little 18 more explanation for modifying for copper and nickel in the 19 Bay. 20 Thanks for letting us speak today. I appreciate all 21 the hard work and look forward to working with you to 22 complete this process. Thanks. 23 CHAIRMAN BAGGETT: Thank you. 24 Steve Moore. 25 MR. MOORE: Good afternoon, Mr. Silva. Steve Moore, CAPITOL REPORTERS (916) 923-5447 105 1 the 303(d) listing coordinator for Region 2. And I would 2 like to take the opportunity to make a couple comments on 3 the process. 4 Really foremost to commend the State Board on 5 unprecedented transparency in this process this time 6 around. I thought it made our job easier at the regional 7 level, encouraging a process of public solicitation, and we 8 think that this process resulted in bringing to your staff's 9 attention ultimately the need of wastewater issues that are 10 out there, those things that were evidently important to the 11 public that we serve, including members of the public and 12 also agencies that we work with. I think that was -- we are 13 on the right course there. 14 I would also like to commend State Board staff in this 15 process in terms of evaluating our recommendation. I think 16 they are very responsive and enjoyed working with everyone. 17 Also want to commend the folks that are here today that we 18 have worked collaboratively with through the watershed 19 management initiative through the State Board to generate 20 information to help us make a decision about whether the Bay 21 is impaired by copper, for instance, and nickel. We think 22 that process has generated useful information to help us 23 make a decision. 24 I thought then, finally -- we are getting towards 25 lunch. I didn't want to keep everybody here. We really CAPITOL REPORTERS (916) 923-5447 106 1 gave some thought in our report, we believe, about the watch 2 list we need. That was automatically a concern about 3 off-ramp to action. That is why, if you look at your staff 4 report for every listed pollutant and water body, we have 5 specific actions and processes underway that we're going to 6 use to evaluate that list of pollutants and water bodies in 7 the next listing cycle. In essence, we saw the scientific 8 group and National Research Council, National Academy of 9 Science Review for the TMDL program. They recommended this 10 primary list. It was called an assessment priority list, 11 really, which meant there was anecdotal information 12 available that shows there might be some threat to water 13 quality or there is an existing regulatory program in place 14 to control the Clean Water Act factor. We would know 15 whether it is going to be successful by the next listing 16 cycle. 17 I would offer to those who are concerned about the 18 watch list concept, if we do it correctly and we hold 19 ourselves, Regional Board, as well as other people who have 20 control over water quality factors, if we hold ourselves to 21 that list it can work as a continuing planning process that 22 was envisioned in Porter-Cologne. It was envisioned in the 23 Clean Water Act Section 3033(d). I think that when we see 24 upcoming issues and we plan and assess and we create a 25 priority assessment list, so the next listing cycle we can CAPITOL REPORTERS (916) 923-5447 107 1 make informed decisions with information that we need. That 2 is necessary in the absence of a really well founded 3 comprehensive monitoring assessment program for the whole 4 state. It's been shown that it needs more work at this 5 point. It is just not a mature program that we can rely 6 on. So I just want to make those points about the watch 7 list. 8 We are very concerned, too, that it could be 9 abused. And we see an important answer here in our upcoming 10 303(d) listing policy process to be very explicit about what 11 placement on the watch list means and what Regional Board is 12 expected to do. I encourage it because it can bring an 13 element of continuous planning into this listing cycle that 14 is ready needed. That is all I had to say. 15 Thanks. 16 MEMBER SILVA: Thank you. 17 That exhausts the cards. 18 Anybody else wish to speak on Region 2? 19 And we don't have any Region 3. 20 Anybody here for Region 3 that wants to comment? 21 I guess we are done. I want to thank everybody for 22 coming and submitting your comments. You have until June 23 15th for any more written comments that you want to make and 24 have not been made. 25 Thank you very much. CAPITOL REPORTERS (916) 923-5447 108 1 We are adjourned until tomorrow. 2 Thank you. 3 (Hearing adjourned at 12:20 p.m.) 4 ---oOo--- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 109 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. SCHWARTZ, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 4 through 109 14 herein constitute a complete, true and correct record of the 15 proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 14th day of June 2002. 19 20 21 22 23 ______________________________ ESTHER F. SCHWARTZ 24 CSR NO. 1564 25 CAPITOL REPORTERS (916) 923-5447 110