STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING REVISION OF CALIFORNIA'S CLEAN WATER ACT SECTION 303(d) LIST OF WATER QUALITY LIMITED SEGMENTS FRIDAY, MAY 24, 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 5 STAFF: 6 CRAIG J. WILSON MELENEE EMANUEL 7 LAURA SHARPE DIANE BEAULAUARIER 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 1 COMMENTERS 2 REGION 5 COMMENTS: 3 SAN JOAQUIN: 4 MICHAEL SEXTON CINDY PAULSON 5 SAN CARLOS/NEW IDRIA: 6 KATE WOODS 7 RON RODRIGUES 8 BUTTE COUNTY: 9 BARBARA VLAMIS LYNN BARRIS 10 BILL JENNINGS BILL THOMAS 11 REGION 6: 12 JULIE CONBOY 13 DAN GALLAGHER HAROLD SINGER 14 BILL THOMAS CHUCK HUNGERFORD 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 FRIDAY, MAY 24, 2002, 9:00 A.M. 3 ---oOo--- 4 CHAIRMAN BAGGETT: Good morning. 5 This is the time and place for a public hearing by the 6 State Water Resources Control Board regarding the proposed 7 2002 update of the federal Clean Water Act Section 303(d) 8 list. This is the second day of three days of planned 9 hearings on the 303(d) list update. The third hearing will 10 be held in Ontario, California, on Thursday, May 30th. 11 The purpose of this hearing is to solicit comments on 12 the Draft Staff Report entitled Revisions to the Clean Water 13 Act Section 303(d) List of Water Quality Limited Segments, 14 dated April 2nd, 2002. 15 I'm Art Baggett, Chairman of the State Water Resources 16 Control Board. I would like to introduce the staff who have 17 been responsible for the 303(d) list review and will be 18 assisting Board during this hearing. From the Division of 19 Water Quality, Craig J. Wilson, Laura Sharpe and Diane 20 Beaulaurier; and from the Office of Chief Counsel, Michael 21 Levy. 22 The order of procedure will be a brief staff 23 presentation, then testimony from interested parties, set by 24 region and on water body. Please be sure to indicate on the 25 card what region and water body you would like to focus your CAPITOL REPORTERS (916) 923-5447 4 1 comments on. If you haven't filled out a card, just let our 2 staff know. 3 The hearing will not be conducted in accordance with 4 the technical rules of evidence. We will accept any 5 testimony that is reasonably related to the 303(d) list 6 review. Written oral documents are all part of the record. 7 If needed, the State Board members, I, or staff may ask 8 clarifying questions to the presenter. To expedite the 9 hearing -- with these few cards we won't even limit the 10 comment, if it's reasonable. 11 If the speaker before you has addressed your concerns, 12 if you could state your agreement and avoid repetition, that 13 will be appreciated. Today's hearing will focus on comments 14 pertaining to the sections dealing with the Central Valley 15 Regional Water Quality Control Board and Lahontan Regional 16 Water Quality Control Board. Testimony won't be strictly 17 within these, but that was my intended focus today. 18 The administrative record for this hearing will remain 19 open until June 15th, 2002. Following the close of the 20 record, State Board staff will review and respond to all 21 comments in writing. Written responses will be included in 22 the Final Staff Report. Any substantive changes made as a 23 result of comments received will be presented in revised 24 staff report. Revised staff report will be made available 25 to interested parties before the final 303(d) list is CAPITOL REPORTERS (916) 923-5447 5 1 considered for adoption by the full State Board. 2 Before giving your testimony, if you could please 3 identify your name, affiliation, and it would help the court 4 reporter since these are being transcribed. 5 With that, Craig. 6 MR. C.J. WILSON: Thank you, Mr. Baggett. My name is 7 Craig J. Wilson. I am chief of the TMDL listing unit in the 8 Division of Water Quality. In my presentation I would like 9 to give you a brief overview of the requirements of Section 10 303(d) and a summary of the steps we have taken to develop a 11 new list. 12 Section 303(d) of the federal Clean Water Act requires 13 all states to identify and prepare a list of waters that do 14 not meet applicable water quality standards with 15 technology-based controls alone. This list is commonly 16 called the 303(d) list. According to federal regulations, 17 the 303(d) list must be updated in even numbered years. The 18 last update took place in 1998. The 2000 update was 19 exempted by federal regulation, and the current list is due 20 for submittal to the U.S. Environmental Protection Agency by 21 October 1st of 2002. 22 The 303(d) list must identify each water body not 23 meeting standards and the responsible pollutant. Priority 24 rankings must also be assigned to each listed water body. 25 These rankings identify the priorities for the development CAPITOL REPORTERS (916) 923-5447 6 1 of Total Maximum Daily Loads, or TMDLs. A TMDL is an 2 allocation of pollutant loads to point and nonpoint sources, 3 including natural background sources and a margin of 4 safety. The state's Porter-Cologne Water Quality Control 5 Act requires that TMDLs be adopted as Basin Plan amendments 6 and that a program of implementation be included. 7 In March of 2001, the state Regional Boards sent 8 solicitation letters to government agencies and other 9 interested parties on their mailing list. These letters 10 requested the recipients to submit any available surface 11 water quality data and information to the appropriate 12 Regional Board. The information that was received in 13 response to these solicitation letters, as well as other 14 information already available to the Regional Boards, was 15 used to assess water bodies for the 303(d) list update. 16 Regional Board staff prepared draft reports and/or fact 17 sheets that contained assessments of each water body. These 18 Regional Board documents were made available for public 19 comment and each Regional Board held public workshops or 20 Board meetings where the recommendations for revision of the 21 303(d) list were considered. The Regional Boards then 22 proposed their recommendations to the State Board. 23 Based on review of the Regional Board recommendations, 24 State Board staff is proposing a number of additions, 25 deletions and changes to the 303(d) list. The staff has CAPITOL REPORTERS (916) 923-5447 7 1 developed a Draft Staff Report that contains our 2 recommendations for changing the list. The Draft Staff 3 Report contains a description of methodology and assumptions 4 used to develop the state Board's recommendations. 5 The assumptions used in preparing the draft report 6 were, one, the 1998 303(d) list which formed the basis for 7 the 2002 list update. 8 Two, the Regional Board recommendations to change 9 existing listings would be considered by the State Board; 10 and three, if insufficient information was available to list 11 a water body, it would be placed on a watch list. The staff 12 report contains fact sheets for each proposed addition, 13 deletion and change to the list. There are also fact sheets 14 for many of the waters where new information was available, 15 but no change to the 303(d) list was recommended. These 16 fact sheets described the data and information on which the 17 recommended action was based and the rationale for each 18 listing decision. 19 If the State Board staff disagreed with the Regional 20 Board recommendation, an explanation is provided. The 21 listed water bodies are ranked in the high, median and low 22 priority categories for TMDL development. These priorities 23 are assigned based upon the significance of the water body, 24 degree of nonattainment of standards or loss of beneficial 25 uses, the availability of funding and overall need for an CAPITOL REPORTERS (916) 923-5447 8 1 adequate case for TMDL development. 2 To summarize, in the State Board proposal there are 797 3 total recommendations, including 195 additions to the list; 4 about 70 delistings; and 31 changes or clarifications to 5 existing listings. There are also 177 waters recommended 6 for the watch list. 7 In conclusion, we are looking forward to the testimony 8 that will be presented at this hearing. I know these 9 comments will ultimately strengthen our proposal. One more 10 point, on May 15th, the State Board staff sent a letter to 11 the public announcing the extended public solicitation for 12 water quality data and information. We will be accepting 13 all new data into our process until June 15th, 2002. 14 This concludes my presentation. If you have any 15 questions, Mr. Baggett, I'd be happy to answer them now. 16 Thank you. 17 CHAIRMAN BAGGETT: I'm fine. 18 With that, again, what is helpful to the Board in this 19 process, is factual information. If you think there is -- 20 if you've got information, you've got till the 15th of June 21 to get it to us on whether some water bodies are 22 inappropriately listed, they should be listed, or opinion 23 whether we should list another water body that is on a 24 proposed watch list. What we need is some data, some 25 science and some information. CAPITOL REPORTERS (916) 923-5447 9 1 With that, any information in oral comments you can 2 give us or refer us to or backup with that kind of 3 supporting documentation is helpful to us in this process. 4 With that, Michael Sexton, Exchange Contractors. 5 MR. SEXTON: Good morning, Mr. Chairman. My name is 6 Michael Sexton. I'm an attorney for the Exchange 7 Contractors which you may know, but some of your staff 8 doesn't know, apparently, is a group of four water agencies, 9 Central California Irrigation District, San Luis Canal 10 Company, Firebaugh Canal Water District, and Columbia Canal 11 Company. Between the four of them, they irrigate about 12 240,000 acres on the west side of the San Joaquin Valley. 13 The importance of their role in the development of the 14 CVP, Central Valley Project, is the basis for my comments 15 today. Unfortunately with the development of the 303(d) 16 listing for segments of the San Joaquin River, especially 17 that segment between Friant Dam and the confluence of the 18 Merced River makes absolutely zero sense to us. The reason 19 for this is that prior to the close of World War II we 20 understand that the United States began development of the 21 Central Valley Project. And in order to develop the project 22 in the way that they envisioned, they had to deal with the 23 predecessors in interest of the water rights held now by the 24 Exchange Contractors. These folks, as you may recall, were 25 the Miller and Lux entities. CAPITOL REPORTERS (916) 923-5447 10 1 In 1939 the Bureau of Reclamation enters into a 2 purchase agreement where it purchases the high flows to the 3 San Joaquin from Miller and Lux. And under the exchange 4 contract that is executed on the same day in 1939, the 5 Exchange Contractors enter into a separate agreement 6 pursuant to which they agree not to exercise water rights 7 that they hold and continue to hold to this day on the San 8 Joaquin River so long as they are delivered substitute water 9 from the Sacramento River watershed, which is going to be 10 exported to them by means of the federal Delta Mendota 11 canal. 12 As a result of those agreements the Central Valley 13 Project was put together and approved by Congress. And the 14 importance of that is that Congress knew and the State of 15 California knew, because the predecessor of this Board 16 approved in D-935 that project and water right transfer that 17 came about. And everybody knew that between Friant Dam and 18 the Merced River confluence basically what we are going to 19 end up with was no river, in other words, a dry riverbed. 20 So to say that because of the Clean Water Act, which 21 didn't come about until 1972, that the State of California 22 or EPA for that matter is required to list that segment of 23 the river as impaired makes no sense. That segment is no 24 longer a river. If anything, it grows jack rabbits. It 25 doesn't grow trees; it doesn't grow water. And we have put CAPITOL REPORTERS (916) 923-5447 11 1 together a package of information which we shared last week 2 with EPA Region 9 in San Francisco, and we shared it with 3 your executive staff last week. And I will put some of that 4 information together in comments and submit it to your 5 staff, to Mr. Wilson, by June the 15th. 6 CHAIRMAN BAGGETT: If you could, that would be 7 appreciated. It is not in the comments we've gotten. 8 MR. SEXTON: We have written -- Mr. Wilson indicated 9 that in response to the Regional Board's or -- the Regional 10 Board did solicit comments in connection with this 303(d) 11 listing, and I personally have written, I think, on at least 12 two occasions and perhaps even more to a Regional Board 13 staff who were involved in the 303(d) listing, and I've made 14 similar documents that I'm taking to you here this morning. 15 I have not received any specific response to those comments 16 other than the fact they are outside of what they and the 17 staff felt was the purpose of receiving data with respect to 18 the 303(d) listing. And I understood from that that they 19 were looking for technical comments with respect to what 20 should be the river system that is listed and what is the 21 basis for this listing. They didn't really want to hear 22 very much about the fact that it made no sense to list a 23 portion of the San Joaquin River that had been dried up 24 because Congress, United States and the state agreed that 25 that was going to happen. CAPITOL REPORTERS (916) 923-5447 12 1 So I will go ahead and put those comments in writing. 2 But I want to make these comments to you today. What I am 3 seeking and what the Exchange Contractors are seeking is 4 that if the state does, in fact, go ahead and update this 5 303(d) listing for 2002 and again insists on listing the 6 Upper San Joaquin or the segment of it, anyway, between 7 Friant and the Mendota Pool as impaired, we would ask that 8 any TMDL that is developed as a result of that be held in 9 abeyance while we continue to grope with this very difficult 10 subject of what to do with a segment of the river that 11 really no longer exists as a river system. 12 CHAIRMAN BAGGETT: What about the upper section about 13 the bridge there on 99? There is water in that section of 14 the San Joaquin. 15 MR. SEXTON: I was asked that question yesterday. What 16 you see happening is under operations for the CVP there is a 17 small quantity of water, about a hundred cfs, that is 18 released routinely from Friant just to meet the riparian 19 demands that exist below Friant all the way down to the area 20 called Gravely Ford. From the bifurcation structure, then, 21 down to Mendota Pool, the river is basically dry. 22 CHAIRMAN BAGGETT: Okay. 23 MR. SEXTON: We have Delta Mendota canal water coming 24 into the Mendota Pool. This is assuming there are no flood 25 releases. We just have the DMC water coming into the pool. CAPITOL REPORTERS (916) 923-5447 13 1 Three of the Exchange Contractors members take their water 2 directly off Mendota Pool through their headworks. One of 3 them, the San Luis Canal Company, has its diversion about 4 eight miles downstream at Sac Dam. So water that is 5 released below the dam at Mendota Pool is DMC water that is 6 released solely for the purpose of delivering it to one of 7 four Exchange Contractors. And then what you see further on 8 below the San Luis Canal Company service area, any water you 9 see in the system at that point is return flow that has been 10 allowed to flow back into that segment of the river either 11 to deliver water to refuge areas which we, the Exchange 12 Contractors, have contracts to do through the Bureau of 13 Reclamation and through the state, to Fish and Game, but 14 none of that water is natural flow in the San Joaquin River. 15 It is all either return flow or DMC deliveries delivered 16 specifically to make those deliveries under the terms of the 17 exchange contract. 18 CHAIRMAN BAGGETT: Well, if you can get us some 19 information to us in writing. I think we have another issue 20 coming up later this morning, a similar. Is it a water of 21 the U.S.? Is it a water or a canal? That whole issue is 22 one that is still out there. 23 MR. SEXTON: Thank you, Mr. Chairman. 24 CHAIRMAN BAGGETT: We are going to have to make some 25 decisions on. CAPITOL REPORTERS (916) 923-5447 14 1 Thank you. 2 One more on the San Joaquin. 3 Cindy Paulson. This is part of the San Joaquin has 4 water in it. 5 MS. PAULSON: Yes. My name is Cindy Paulson. I work 6 for Brown & Caldwell. We are environmental engineers 7 representing the Turlock Irrigation District. 8 The Irrigation District has an extensive system that 9 has receiving waters, including the Merced River, the 10 Tuolumme, the San Joaquin River and part of the drain. 11 There are a couple of concerns that I would like to just 12 highlight from the written comments that were provided. 13 First, just a general concern about the addition of 14 more waters to the existing 303(d) list, many of which seem 15 to have limited data. In particular, with the limitations 16 of staff time to be able to really fully address those. And 17 in my written comments I cited comments that Ms. Celest 18 Cantue, the Executive Director, made at a state storm water 19 task force meeting in January where she cited that she 20 herself was very concerned about the length of the list. 21 She went on to say that the staff cannot even address the 22 top 10 percent of the priority concerned. 23 She additionally said that she was looking for a new 24 listing approach, and I know that is in process. But I 25 would like to suggest that it also be incorporated into the CAPITOL REPORTERS (916) 923-5447 15 1 considerations for this existing listing as well. 2 A few specific concerns. One of the water bodies that 3 I mentioned with very limited data is John Pedro Reservoir 4 was added for mercury toxicity. The listing there was with 5 very limited data. The most recent data was over 15 years 6 old, from 1987. There were no health concerns that have 7 been raised by OEAHHA. In conversations with Tuolumme 8 County Health Department they had no health concerns about 9 the Don Pedro Reservoir. 10 In addition, in looking at all the recommended 11 additions for mercury toxicity to the 303(d) list within 12 Region 5, the Don Pedro Reservoir was the one that had data 13 older than five years. 14 Specific concerns with regard to the Harding Drain, 15 which I think you alluded and the previous speaker alluded 16 to as well. The TID has commented to the Regional Board 17 over the last year about their concerns with the 18 classification of the Hardy Drain as a water of the U.S. 19 Additionally, their concerns with the application of the 20 Tributary Rule to arbitrarily define water quality 21 objectives for the Harding Drain which lead subsequently to 22 listing of the drain for several constituents. Very 23 concerned about that application and have not yet gotten a 24 response from the Regional Board. 25 Thank you for your time. CAPITOL REPORTERS (916) 923-5447 16 1 CHAIRMAN BAGGETT: Thank you. 2 Kate Woods, reporter. 3 MS. WOODS: Good morning. 4 CHAIRMAN BAGGETT: Morning. 5 MS. WOODS: Thank you for giving me this opportunity. 6 My name is Kate Woods. And my family and I live in New 7 Idria. That is less than a mile downstream from the ghost 8 town of New Idria Mercury Mine in San Bernardino County. 9 With 120 years of operation the New Idria Mercury Mine 10 produced 22,000,000 pounds of liquid mercury from roughly 60 11 miles of mine shafts, making it the largest producer of 12 mercury in the Western Hemisphere. 13 For 21 years my family has fought for remediation of 14 New Idria. We often hear that since not many people live 15 out there, that cleanup of the river is low priority. I 16 believe we are slated for consideration in year 2015 on the 17 list. 18 It seems obvious to us that from the countless studies 19 and surveys that have been done on the area, that there are 20 serious toxic ramifications from this watershed extending 21 hundreds of miles throughout the San Joaquin Valley and all 22 the way to the San Francisco Bay. The mercury, methyl 23 mercury, and associated heavy metals released into the San 24 Carlos Creek are about as poisonous as any that could be 25 dumped into a stream an are bioaccumulative toxins. CAPITOL REPORTERS (916) 923-5447 17 1 This acid mine drainage affects not just San Bernardino 2 County by neighboring downstream counties. Cattle drink 3 from the San Carlos Creek as well other wildlife further 4 downstream. Some of our dogs have died from drinking out of 5 the creek, and they were in the prime of their lives. 6 New Idria is apparently located right on the border 7 between Region Water Quality Boards 3 and 5, I believe it 8 is, the Central Coast and Central Valley Regions. It seems 9 that neither region wants to take responsibility for New 10 Idria. I feel that we have been someone orphaned by both 11 regions. 12 But, in conclusion, I just want to say I look forward 13 to working with the State Water Board to help clean up this 14 mess. And my family and I are both available to help in 15 this endeavor. 16 Thank you. 17 CHAIRMAN BAGGETT: Thank you. 18 It appears that you've done what I asked for, lots of 19 information, lots of data. Good. We will be looking at 20 this. 21 I guess in terms of -- just real briefly, the boundary 22 line is the watershed, so which way does the water flow is 23 the question. Does it flow into San Joaquin or does it flow 24 -- then it is Region 5. If it flows the other direction, 25 should be a pretty simple test, unless the mine straddles CAPITOL REPORTERS (916) 923-5447 18 1 the watershed. 2 MS. WOODS: Well, it does flow -- it does cease in the 3 Central Valley. We think the Central Valley. 4 CHAIRMAN BAGGETT: Okay. Thank you. 5 MS. WOODS: Thank you. 6 CHAIRMAN BAGGETT: We have a Supervisor Ron Rodrigues. 7 MR. RODRIGUES: Thank you, Mr. Chairman. 8 I'm Ron Rodrigues, Supervisor of District 4, which 9 encompasses the New Idria area that is in question here. 10 You questioned the water flow. It does flow into San 11 Joaquin Valley. In fact, a lot of this water ends up in the 12 Mendota Pool and eventually into the San Joaquin River. 13 I have prepared remarks. You have the binder? 14 CHAIRMAN BAGGETT: We have it. 15 MR. RODRIGUES: In a cover letter it is there also. I 16 hereby request on the behalf of the San Benito County 17 supervisors that the New Idria mines, located near the 18 abandoned town in San Bernardino County, be elevated to the 19 top of the 303(d) list for the Central Valley Region 4. San 20 Benito County is located within the jurisdiction of both the 21 Central Coast, that a previous speaker mentioned, and the 22 Central Valley region. New Idria Mines, which were a 23 series of mercury mines started in 1854 and closed in the 24 1970s, have been clearly recognized for over three decades 25 as a huge source of mercury and acid mine drainage and waste CAPITOL REPORTERS (916) 923-5447 19 1 contamination into San Carlos Creek, Silver Creek and 2 Panoche Creek, both in San Benito and Fresno Counties. The 3 total extent of stream contamination in these mines is over 4 four and half miles extra in the dry season, and the runoff 5 moves into the San Joaquin County, the San Joaquin Valley. 6 Further, these water bodies which are currently 7 drinking water supplies, run ores from contaminants from the 8 mine every year. The contaminants causing the serious 9 impairment to these creeks, are mercury, pH levels, copper, 10 nickel, turbidity, sulfates, iron and a variety of other 11 contaminants related to acid mine drainage. 12 I would like to -- I have already stated I presented 13 you with reports and documentation on this. 14 It's a large public health and environmental problem as 15 you can plainly see. This proof clearly qualifies these 16 water bodies for a higher priority on the 303(d) list. We 17 believe that a full review of this information will 18 demonstrate the need to elevate New Idria Mines to the top 19 of the list, and please, we don't want another ten years. 20 We hope something occurs before that. 21 And I thank you for listening and look forward to 22 working with your staff. 23 CHAIRMAN BAGGETT: Is that Curtis Graves' old district? 24 MR. RODRIGUES: I replaced Curtis about eight years 25 ago. CAPITOL REPORTERS (916) 923-5447 20 1 CHAIRMAN BAGGETT: I spent eight years as a county 2 supervisor for Mariposa. Mike Graves and a lot of your 3 colleagues, I was down there once. 4 MR. RODRIGUES: Thank you for mentioning them. 5 CHAIRMAN BAGGETT: Tell them hello if you see them. 6 MR. RODRIGUES: I sure will. 7 Thank you very much. 8 MR. LEVY: Mr. Chairman, may I ask for a 9 clarification, please? 10 CHAIRMAN BAGGETT: Sure. 11 MR. LEVY: Mr. Rodrigues, is New Idria on the 1998 12 303(d) list? 13 MS. WOODS: I think San Carlos Creek is. It is listed 14 under San Carlos Creek. 15 MR. LEVY: Thank you very much. 16 CHAIRMAN BAGGETT: Thank you. 17 Barbara Vlamis, Butte Environmental Council. 18 Got a couple from Butte. 19 MS. VLAMIS: Good morning, Chairman Baggett. 20 CHAIRMAN BAGGETT: Are you a team? 21 MS. VLAMIS: We try very hard to be a team, yes. We 22 are both members on the public advisory group and have 23 appreciated working with you and your staff on the whole 24 process of the 303(d) list. We do have some comments that I 25 would like to submit today for our members which number CAPITOL REPORTERS (916) 923-5447 21 1 about 800 in the Butte County region. 2 Regarding process, I would just -- I really want to 3 emphasize as I have through our advisory group that there is 4 acute lack of monitoring data in the northern Sacramento 5 Valley. And I am going to give you a list of just the 6 sampling of point and nonpoint sources that are severe 7 problems that we do -- that either have inadequate 8 monitoring or it's been completely ignored to date. 9 We have the Cherokee Mine which is the second largest 10 gold mine in the state of California. Mercury is all over 11 the land adjacent to the mine. 12 We have Humboldt burn dump road located in the City of 13 Chico. It is the largest burned up in the state of 14 California. 15 Holly Sugar is an abandoned industrial site half a mile 16 from the Sacramento River, and we fought for four years to 17 get any testing at all done on this property, and we are at 18 least succeeding in getting some groundwater sampling. 19 Agriculture in our area -- the tributaries to the main 20 stem that are already on the 303(d) list have been 21 absolutely neglected in monitoring, so we have no idea the 22 actual sources that have polluted our main stems of the 23 Sacramento and Feather Rivers. 24 I do want to bring up two regarding process. In 1998 25 our comments were lost on a desk in Sacramento. This story CAPITOL REPORTERS (916) 923-5447 22 1 is now well known, but the point still bringing up this 2 story is that what we proposed at that time was obviously 3 lost for four years since there was an absence of the 2000 4 listing. And they are still -- even though we have come 5 forward with the lean data that there is, which is lean, 6 which again just emphasizes the need for monitoring. We 7 have not even received attention of the Regional Board to 8 monitor these segments so that we can determine whether they 9 are clean or polluted as preliminary monitoring once 10 demonstrated. 11 I would always like to encourage Regional Board and 12 State Board in the next two years to really prioritize 13 mapping. I think that maps are a wonderful visual that 14 helps everyone determine gaps in our waters, what is clean 15 and what isn't. I think that mapping should become a high 16 priority for the state and Regional Boards. 17 On specific water bodies, we appreciate that Butte 18 Slough, the lower segment of Butte Creek is on the 303(d) 19 list proposed for 2002 for diazinon and molinate. This is 20 the one segment that we propose for the 2002 listing that 21 was accepted by the Regional Board. This particular segment 22 is, of course, part of the larger water body, Butte Creek, 23 that is undermonitored, and thereby underlisted. 24 Intuitively it is very clear that diazinon and molinate are 25 also found in the upper portions of Butte Creek where CAPITOL REPORTERS (916) 923-5447 23 1 agriculture is the main land use. 2 It is just another argument for the need for monitoring 3 in the upper watershed of the Sacramento Valley. In '98 we 4 proposed Comanche Creek on data gathered by the Issac Walton 5 League. They found state standards were exceeded for 6 copper, lead and zinc. I am trying to find additional data 7 that may have been gathered by the City of Chico that I will 8 try to turn in by the June 15th deadline, if I am successful 9 in finding that, the segment that's also crying for more 10 monitoring. 11 And in regards to Dead Horse Slough which is a 12 tributary of Little Chico Creek, this water body has a mean 13 lead concentration of sediments of 442 parts per million for 14 lead, though background concentrations of Little Chico Creek 15 are only 15 parts per million. This segment was rejected 16 for listing since Regional Board is involved in the 17 remediation of burn dump. Unfortunately the burn dump, the 18 remediation process, has been part of the Regional Board 19 work order since 1993, and we are looking at years of 20 additional review and probably lawsuits before anything is 21 either started which is why I proposed it here. The major 22 delays in cleaning this site has and remains to be the City 23 of Chico that wants to build homes on the remediated 24 property, so it has delayed trying to clean up our waters. 25 So I would like you to consider that at a very minimum. CAPITOL REPORTERS (916) 923-5447 24 1 Something must be done for water body even if the City of 2 Chico delays that process because they are insisting on the 3 land use which is not an appropriation for that particular 4 dump. 5 CHAIRMAN BAGGETT: This is which reach? 6 MS. VLAMIS: This is Dead Horse Slough. 7 Thank you very much. 8 CHAIRMAN BAGGETT: Thank you. 9 Lynn Barris. We should have a PAG meeting. 10 MS. BARRIS: Good morning, Chairman Baggett and all of 11 our friends. I'm here to give just a few -- I will touch 12 very lightly on the environmental caucus for the public 13 advisory group. I would like to say first that we strongly 14 support the state's use of the 1998 303(d) list. That is a 15 given. We also support the additions on the 303(d) list. I 16 think that one subject that I will go into that the 17 environmental caucus of the PAG have agreed on is the watch 18 list. 19 We strongly believe that the watch list should be 20 eliminated. As discussed extensively at the last two PAG 21 meetings, we have serious concerns about the use of a watch 22 list. It violates the mandates of Section 303(d) to place 23 an impaired water body on any list other than a 303(d) list 24 even if there is a regulatory program in place to control 25 the pollutants but data are not available to demonstrate CAPITOL REPORTERS (916) 923-5447 25 1 that program successfully. 2 There is more here and you will get our comments in 3 writing. But I have to say that when the State Board staff 4 came up to the North Sac Valley to talk to the 5 environmentalists about there about a watch list and to 6 discuss other issues on the 303(d) list, at first the watch 7 list sounded like for us with no monitoring whatever hardly, 8 that it may have been a good idea. But when you look at the 9 watch list, there is virtually nothing from Sac Valley 10 Region 5 on the watch list. At this point the northern 11 environmentalists have to concur with the other state 12 environmentalists that this, with their ideas that there 13 should not be a watch list and it wasn't beneficial to us in 14 the long run either. 15 One of the most startling things to us in the North 16 Valley is that the majority of the state's drinking water 17 comes out of our areas, yet there is complete inequity in 18 funding for water quality in the Sac Valley. I will just 19 stop my comments at this point because you will get them all 20 in writing. 21 Thank you for the chance to comment. 22 CHAIRMAN BAGGETT: Unfortunately, I had to leave before 23 Jonathan was up yesterday. I thought we would have some 24 more discussion on the watch list concept. It is something 25 I am sure Mr. Jennings will have some comments on it, too. CAPITOL REPORTERS (916) 923-5447 26 1 MS. BARRIS: I hope so. 2 CHAIRMAN BAGGETT: Maybe later we can discuss it, but 3 it is something -- I would agree with your comments. The 4 intent -- well, like, Dead Horse Slough, for example, that 5 is the kind of place we know we don't have the data. We 6 can't just go out and list everything. That is what I think 7 happened years ago, things were listed without good science, 8 which puts everybody in a hole. Some were. There are 9 clearly impaired water bodies. We know that. We know we 10 have problems. We are trying to work on them. But to list 11 something on one source out of 200 monitoring sites, on had 12 a spike, is that good data to go through this whole process. 13 Probably not. I think that is what we are concluding, but 14 that is sufficient that maybe we should seriously evaluate 15 that over the next three years, watch it, give it a shot at 16 getting some monitoring funds. 17 That is the intent. It is not to -- otherwise, as I 18 see it, we are going to have to come up with very stringent 19 standards for listing anything, in which a lot of bodies -- 20 it is either is it black or white. 21 MS. BARRIS: That is why I think that we should have 22 better support for the SWAMP Program so that we have 23 equitable funding for monitoring throughout the state, 24 because all the water bodies are important. But, I mean, 25 when you think about the drinking water coming out of CAPITOL REPORTERS (916) 923-5447 27 1 Northern California and no monitoring and then, again, with 2 your watch list nothing from Sac Valley made the watch list. 3 That is because we have no monitoring and there is inequity 4 in funding for it. 5 CHAIRMAN BAGGETT: When you give us your comments that 6 is something that is worth putting in. If you have specific 7 areas where there is some data but you feel there needs to 8 be more, let us know. 9 MS. BARRIS: Thank you very much for our chance to 10 comment. 11 CHAIRMAN BAGGETT: Thank you. 12 Bill Jennings. 13 MR. JENNINGS: Thank you, Chairman Baggett. Bill 14 Jennings representing Delta, WaterKeeper, 15 WaterKeepers of Northern California and the California 16 Sportfishing Protection Alliance. 17 I'm not going to repeat what I presume Jonathan 18 delivered yesterday. I would say that one of my concerns 19 about the watch list is that it is a convenient place to 20 park things, and it ought not to serve in lieu of a failure 21 to aggressively pursue existing data. 22 One of our concerns is there is a lot of data out there 23 developed through NPDES permits, sample requirements that 24 really hasn't been aggressively pursued in compiling the 25 303(d) list. I think we've only been scratching around the CAPITOL REPORTERS (916) 923-5447 28 1 surface in a lot of the existing data. For example, DWR has 2 certainly not been forthcoming with a lot of data that it 3 has on temperature and dissolved oxygen and on number of 4 things. We have a concern there. 5 Thank you for the opportunity to share our views with 6 you concerning the 303(d) listings. We appreciate staff's 7 cheerful assistance in consideration of our previous 8 suggestion. I think over 30 of the proposed additions to 9 the Region 5 list have come from our proposals, many based 10 upon data that we, in fact, collected. 11 CHAIRMAN BAGGETT: Over 30? 12 MR. JENNINGS: Yes. We will be submitting additional 13 detailed comments and data during the comment period, but 14 today I want to briefly address two issues where we have 15 serious policy differences with the staff. 16 To examine the proposed list, one would have to 17 conclude temperature is not a problem in the Central 18 Valley. Regional Board staff did not recommend additional 19 listings for temperature, because, in their words, it would 20 require them to determine the natural receiving water 21 temperature or to determine whether temperatures have 22 increased more than five years over natural temperatures. 23 However, elevated temperatures have been identified as one 24 of the major reasons for the decline of fisheries throughout 25 the Central Valley. CAPITOL REPORTERS (916) 923-5447 29 1 The extent of temperature impairment can be found in 2 CalFed EIS, the VAMP EIS/EIR, the restoration for the 3 Anadromous Fish Restoration Program of the CVPIA, 4 environmental documents from various FERC proceedings in the 5 Mokelumne, Yuba, Tuolumne, Feather, State Water Board 6 hearing records, the Yuba River, for example, the Mokelumne, 7 the findings and fact sheets for numerous NPDES permits and 8 numerous DFG studies. I won't go into there, but a lot of 9 them are very explicit that temperatures at levels are 10 lethal to adults, to salmon, to eggs, larvae and so forth. 11 And we are talking about, largely talking about, 12 impacts to endangered species which we presume qualifies as 13 a beneficial use. 14 303(d) list explicitly mandates the inclusion of 15 temperature impaired water bodies on the 303(d) list. The 16 definition of a pollutant is defined in CFR. It includes 17 heat, water quality standards, including thermal water 18 quality standards. The FWPCA Section 303(d)(1)(B) states 19 that each state shall identify those waters, parts thereof, 20 within its boundaries for which controls on thermal 21 discharges are not stringent enough to. 22 303(d)(1)(D) then requires that thermal TMDLs be 23 conducted. 303(d)(2) requires the reporting of it. And 24 303(d)(3) interestingly states that for the specific 25 purposes of developing information each state shall identify CAPITOL REPORTERS (916) 923-5447 30 1 all waters within its boundaries which have not been 2 identified under Paragraph (1)(A) or (1)(B) of the 3 subsection and estimate for such waters the total maximum 4 daily load for seasonal variations and margins of safety for 5 those pollutants in thermal discharges at a level that would 6 assure protection and propagation of a balanced indigenous 7 population, et cetera. 8 High temperature caused by altered flow regimes and 9 increased thermal loading has been identified as significant 10 reasons for the decline of fisheries, a major limiting 11 factor to restoration. And this requirement to identify 12 thermal impaired water bodies and to conduct thermal TMDLs 13 is an explicit, nondiscretionary obligation that the water 14 Boards have shied away from for the last 28 years. There is 15 a standards issue here, but there is also a listing issue 16 that I think is a clear requirement to list for 17 temperature. 18 The second major issue we have is invasive species. 19 The Bay-Delta has been identified as one of the most invaded 20 estuaries in the world with respect to the introduction of 21 exotic nonnative species. Region 5 staff agreed that exotic 22 species were a problem in the Delta, but claimed that exotic 23 species are not a pollutant as identified by the Clean Water 24 Act and, therefore, should not be included on the 303(d) 25 list. We believe staff's conclusions are capricious and CAPITOL REPORTERS (916) 923-5447 31 1 wrong. 2 The definition of a pollutant as defined in the 3 statute, 502(6), in the regulations for 40 CFR 122.2 or 4 130.2 include biological materials, biological organisms, 5 such as bacteria, algae, dead fish, live fish, fish remains 6 and plant materials have been considered pollutants under 7 this definition by a number of courts around the nation. If 8 chopped up native fish are biological material, that is 9 National Wildlife versus Consumers Power, then certainly 10 unchopped exotic fish are clearly biological material. 11 The 1998 California 303(d) list and TMDL priority 12 schedule list lists Carquinez Strait, Richardson Bay, 13 Central San Francisco Bay, Lower San Francisco Bay, South 14 San Francisco Bay, San Pablo Bay, Suisun Bay and part of the 15 Delta within Region 2 as impaired by exotic species. EPA in 16 their reasons to the 1988 list stated strong support for the 17 state's emphasis on protecting the Bay ecosystem from 18 effects of exotics including development of TMDLs for exotic 19 species. 20 Twenty-six water bodies in five states, California, 21 Iowa, North Dakota, Idaho, Oklahoma, are listed on the 22 current National 303(d) list as impaired by exotic species. 23 Over 800 water bodies are listed impaired because of noxious 24 aquatic plants. Many of these listings are attributable to 25 invasive or exotic species. And exotic species are causing CAPITOL REPORTERS (916) 923-5447 32 1 over $5,000,000,000 of economic damage each year in the 2 United States. Fully half of all threatened or endangered 3 species are imperiled by invasive species, making it the 4 second greatest cause of endangered species imperilment. 5 CHAIRMAN BAGGETT: I assume you are going to submit all 6 of this in writing? 7 MR. JENNINGS: Yeah. I would say those -- we are 8 certainly going to submit some data on a number of other 9 issues that we have. But these are two serious policy 10 issues that I think clearly that -- invasive species and 11 temperature need to be considered, and we think there was a 12 discretionary decision by staff not to include them. 13 CHAIRMAN BAGGETT: As you can see, that is where it is 14 going to end up here with a number of those issues, San 15 Joaquin Reservoir in Region 6. There is a number of issues 16 where they're major policy calls. 17 If you can provide that in writing. On the watch list, 18 you weren't here yesterday, but I made some comments. You 19 just heard my summary today. That is something that is a 20 policy that we've been looking at. We feel -- I feel pretty 21 strongly that there is some mechanism when we know there is 22 likely problems, but we feel we just don't have enough 23 science -- and I guess will be argued, what is enough 24 science. But rather than just throw things out, at least 25 have them so you can continue to focus energies and CAPITOL REPORTERS (916) 923-5447 33 1 encourage monitoring or require monitoring if there is NPDES 2 permits. There is lots of options that we have through 3 other agencies to try to get the data. We need to 4 determine whether it really is or it isn't. 5 MR. JENNINGS: The whole process begs for more 6 comprehensive systematic, scientifically defensible 7 monitoring. I think we all agree that inadequate monitoring 8 is conducted. Part of the problem is that a lot of the 9 existing data hasn't brought into the fold, that is already 10 out there. I think a more systematic effort to bring 11 together existing data might help some of that. It 12 certainly begs the question as to how much monitoring are or 13 how many identified impairment is required, especially for 14 chemicals, for example, you mentioned a single exceedance. 15 After all, standards are developed in the laboratory with 16 pristine water and a single stressor. And that at that rate 17 if it is exceeded once in three years, the ecosystem is not 18 able to respond to recovery. But in the real world there is 19 multiple stressors and multiple pollutant challenges. 20 CHAIRMAN BAGGETT: I have direct involvement where you 21 have one bad sample that is because the contaminated well 22 sample -- the lab tech didn't actually wash their hands and 23 contaminated the sample. So we almost started a massive 24 clean water program. 25 MR. JENNINGS: I don't think anybody expects a listing CAPITOL REPORTERS (916) 923-5447 34 1 to be based on single exceedance. But where you have a 2 reasonably good database, a few representative grab 3 samples. A grab sample represents, what, one-ten-thousandth 4 of a -- 5 CHAIRMAN BAGGETT: For example, there is one on the 6 North Coast that we dealt with yesterday, where it is 7 recommended to be put on a watch list. There was one out of 8 50 samples. Actually, I think, the county or the city 9 didn't object to the watch list status. But the original 10 recommendation was to list it. We knew there wasn't quite 11 enough data to make a listing, but everybody thought so 12 let's watch it for three years and get some more data and 13 see where it goes. It seemed to me that is, I guess, what 14 we are trying to use this watch list to do, something where 15 we know there is at least a little -- there is some 16 evidence, but not enough to really put -- 17 MR. JENNINGS: I am not aware of the amount of data in 18 that situation. I'd be uncomfortable with one exceedance 19 out of 50 samples as identifying impairment, going for full 20 list without question. 21 CHAIRMAN BAGGETT: That is just to let you know. That 22 is what we are thinking about, maybe this isn't the place to 23 have discussion. 24 MR. JENNINGS: There is never going to be enough money 25 to do the kind of monitoring, comprehensive monitoring that CAPITOL REPORTERS (916) 923-5447 35 1 is needed, and, obviously, we are going to have to 2 prioritize somewhat, which is why I think I raise the issue 3 of temperature because I think it is really one of the major 4 limiting factors to fishery restoration in this valley. 5 CHAIRMAN BAGGETT: The Board is looking forward to 6 receiving your comments. 7 Bill Thomas is the last comment I have for Region 5. 8 Is there anybody else with a Region 5 issue? 9 MR. THOMAS: Bill Thomas representing grapefruit 10 league. 11 I'll be brief in comments today because most of what 12 I'll say have been submitted already or will be submitted 13 before the June 15th date. 14 The particular focus has to do with the new listings 15 that are proposed that would affect our chemical, 16 chloropyrophos. Like several others that have yesterday and 17 today are appearing before you, Mr. Chairman, I too sit on 18 the PAG TMDL body. I'm one of the only couple that deal in 19 the nonpoint source, the regulated community there. And I 20 guess I would just say in passing because I don't think you 21 have heard from Tess, I guess we are probably not 22 necessarily as sold on the watch list as maybe some of the 23 other regulatory body. We find ourselves kind of going back 24 and forth on that. 25 CHAIRMAN BAGGETT: You agree with Mr. Jennings? CAPITOL REPORTERS (916) 923-5447 36 1 MR. JENNINGS: Mr. Jennings and I agree on more than 2 makes either of us comfortable, particularly regarding the 3 need for monitoring and data and science control. And I 4 think the reason that we go back and forth on the watch list 5 is like so many tools it could be applied in a helpful 6 basis, and it could be perhaps misapplied, and therein lies 7 probably what you think about the watch list, the comfort 8 you have how it would be used, anyway. 9 I wanted to share a couple of thoughts that we have 10 more of a general nature, but leading to a couple comments 11 on specific recommendations. 12 The first is we look to the Clean Water Act that calls 13 for the listings of those things that violate water quality 14 standards, and, of course, make such determinations. And 15 for them to be upheld, they are going to have to be 16 supported by the substantial evidence. And when you look to 17 see the type of evidence that Clean Water Act and its 18 associated documentations, they talk about determining 19 impairment based on qualitative assessments, chemical 20 assays, bioassessments and biomonitoring. And I will 21 mention more in those two categories in a moment. 22 If we look to the water quality standards that are 23 being used to contemplate listings of our ag waterways 24 dealing with chloropyrophos, we note that EPA has adopted a 25 section, I believe it is 304(a), standard and criteria for CAPITOL REPORTERS (916) 923-5447 37 1 these chemicals. Yet we see at our region and State Board 2 moving towards as to what is referred to as the Department 3 of Fish and Game standards, which are not now in the Basin 4 Plan and haven't had the review and the adoption that the 5 EPA criteria has used. We just make note of that, more 6 specific comments will come in writing. 7 Also as to standards, when we are dealing with 8 pesticides and I'm speaking to the Central Valley Board, we 9 certainly know when we have a specific standard and things 10 start to get real murky when we get over into the narrative 11 standard work, and that is not a new comment. We find that 12 across several basin plans. 13 But as to pesticides and the Central Valley Region, 14 there are about three different and some inconsistent 15 standards that potentially could be applied to pesticides. 16 The one that we think should be applied is the specific one, 17 the pesticide standards. But the toxicity standard and 18 chemical constituency standards that have different twists 19 to them could also be applied. We think that is something 20 that needs some clarification. 21 Relative to testing and data, we would take particular 22 note and we will make comment on this has been an issue 23 nationally that EPA had kind of directed to the National 24 Academy of Science and the National Research Council has 25 rather recently issued a considerable report that talks CAPITOL REPORTERS (916) 923-5447 38 1 about preferred types of testing leading to evaluating water 2 quality. And they point us to the biological community 3 monitoring and its natural environment. And specifically 4 they say that we, and I am somewhat quoting here, link all 5 the environmental stresses to their biological responses. 6 They also say there should be a wider use of biocriteria 7 monitoring at the state level because biocriteria are better 8 indicators that are chemical criteria. 9 This is widely being accepted in the scientific 10 community and being adopted as -- accepted by quite a number 11 of states, and it will eventually kind of be the overall 12 monitor. 13 If we look at the data that we have, we have very 14 limited data that is being advanced to support a couple of 15 these new listings. And the data that is there reflects 16 what we know about agricultural chemical drainage overall 17 that is always temporal and often is just dealing with 18 unacceptable spikes. Those spikes are the types of things 19 that can be most easily addressed through best management 20 practices and the like. 21 Along that line there has been significant changes that 22 have been going on in the agriculture community in dealing 23 with the use and drainage of waters that may contain 24 residues of chloropyrophos, uses of change. The urban 25 contribution wholly changed as the label has been changed to CAPITOL REPORTERS (916) 923-5447 39 1 ban those uses. There have been other label changes and 2 there have been considerable BMPs trying to be employed in 3 agriculture. All that is found kind of foundational to the 4 two specific water bodies that I wanted to address. 5 One would be Del Puerto. There is -- its proposed 6 listing is based on three years of data that apparently were 7 collected in 1991 through 1993. This data is stale, and 8 hasn't been noticed and reviewed, and even when it was 9 collected, they had just ten of 30 sites that exceeded this, 10 the supposed Fish and Game standard. Similarly in Ingram 11 Creek, it's old data. Here we have seven of 26 that they 12 got above the Fish and Game alleged level. Again, this is 13 old data. It cries out for further evaluation of these 14 water bodies. These are the types of data that, if there is 15 to be a watch list, we think it would be appropriate for 16 further review. 17 Those are only the comments I will make on this Central 18 Valley. If there is any questions, take them and we will 19 submit written comments. 20 Thanks. 21 CHAIRMAN BAGGETT: While you are up there, you may as 22 well start Region 6. 23 MR. THOMAS: Let me get my notes. 24 CHAIRMAN BAGGETT: We will follow with someone else. 25 Julie Conboy. CAPITOL REPORTERS (916) 923-5447 40 1 MS. CONBOY: Good morning, Chairman Baggett, members of 2 the staff. I will keep this brief also because I believe 3 you were at the Lahontan Regional Board when I spoke about 4 this issue last time, and we have inundated your staff with 5 written comments. 6 CHAIRMAN BAGGETT: We have lots of written comments. I 7 haven't read them yet, but I will. 8 MS. CONBOY: Just to give everyone a little background 9 on Halle Reservoir which is what I am here to recommend that 10 the State Board remove from the 303(d) list. Back in 1913 11 when William Mulholland was building the Los Angeles 12 Aqueduct, the men out there dug a hole five miles south of 13 Owens Lake and that was named Halle Reservoir. It was 14 man-made, and it was intended as a sediment pond, a 15 settling for all of the solids that would come from the 16 Owens River down to the City of Los Angeles. There are no 17 rivers of the United States or of the state leading into 18 Halle Reservoir. It leaves there and goes into a pipe. 19 In the early '90s the City of Los Angeles petitioned 20 Department of Health Services, and fishing is now allowed 21 there. Fishing and nothing else, no waders, no boating or 22 anything like that. And as is the standard in the drinking 23 water industry, Los Angeles applies copper sulfate on an 24 as-needed basis to prevent algae booms and comply with the 25 state and federal drinking water standards. We need to do CAPITOL REPORTERS (916) 923-5447 41 1 that there to prevent them because the water turns green and 2 the taste of the water is affected. It won't necessarily 3 come out with chlorine down in San Fernando Valley where the 4 water eventually ends up to be billed. 5 In the 1998 listing of the Clean Water Act, the 6 accepted notice of what was the water of the United States 7 was different than it was now. Last year the solid waste 8 agency of Cook County decision of United States Supreme 9 Court changed the way that federal Boards are looking at 10 what is a water of the United States. And a few follow-up 11 cases including United States versus Rapinow [phonetic] out 12 of Michigan. It is a criminal case, pretty much holds these 13 waters need to be navigable. And I will provide your 14 counsel with copies of that case. 15 Navigable has to mean something. And under the terms 16 of our permit from the Department of Health Services Halle 17 is not navigable. No one can be in there to do anything 18 other than check the quality of the water for drinking with 19 the mechanism or to fish and not have the body parts in 20 there. Unfortunately, the beneficial uses for Halle do not 21 comport with what is absolutely attainable there. We have 22 submitted points and authorities as far as the Clean Water 23 Act goes and the jurisdiction. So I will leave it at 24 that. 25 I would like to add that I do have copies of a letter CAPITOL REPORTERS (916) 923-5447 42 1 from April 22 from Harold Singer to Craig Wilson of your 2 staff here basically admitting how hard of a decision it is 3 to make the determination whether Halle Reservoir is a water 4 of the United States. And this letter does state that the 5 Regional Board is planning on having hearings to resolve 6 this issue involved this year. Unfortunately, that leaves 7 Los Angeles with an order from the Regional Board to comply 8 with tests about, I think, $212,000 of tests, which would be 9 the beginning of the final TMDL process for Halle 10 Reservoir. So we have to assert that with our belief is 11 right now that it is not a water of the United States, and, 12 therefore, this Board does not have jurisdiction under the 13 Clean Water Act. We do recognize the Board's jurisdiction 14 in other phases. 15 However, if this Board does come to the conclusion that 16 this is a water of the United States, Los Angeles is still 17 obligated to meet the Safe Drinking Water Act and not just 18 the primary and secondary standards that the state and 19 federal government have, but public health codes. And the 20 California Supreme Court recently held in a case called 21 Hardwell that drinking water providers can be held liable if 22 they do not meet those drinking water public health goals. 23 The public deserves that. The public deserves to have the 24 cleanest and healthiest drinking water that they can get. 25 Even the state of California under Water Code 106 has CAPITOL REPORTERS (916) 923-5447 43 1 declared that drinking water is the highest priority in the 2 state. 3 And it is our position that $800,000 in tests to show 4 that copper sulfate does what it is intended to do, clean 5 and prevent algae is not a good use of public funds. We 6 applaud what this Board did with the statewide aquatic 7 pesticide permit. In that case the Board recognized it had 8 the discretion to recognize all beneficial uses cannot be 9 met in all waterways at all times, and that drinking water 10 providers needed to use drinking water chemicals. 11 And a little background as far as why we are here in 12 1991 and interested to listen to the past presenters talk 13 about the Fish and Game standards and outdated information. 14 I saw a video yesterday of Fish and Game collecting the dead 15 fish that they found in 1991. And at that time the City of 16 Los Angeles applied copper sulfate through a pipe. Just 17 dumped it pretty much into the reservoir. The Fish and Game 18 warden stuck his net under that pipe and tested the water 19 and moved to different sites in the reservoir. That would 20 not meet the Fish and Game standards at that time, and 21 certainly wouldn't meet the scientific standards that the 22 state would command now. 23 Los Angeles admits that that method may have put too 24 much copper sulfate in there than is needed now, and aerial 25 spraying is what is used now for copper sulfate CAPITOL REPORTERS (916) 923-5447 44 1 application. So the significance is that it needs to be 2 done on an as-needed basis. When the temperature is 3 requiring it, that is when copper sulfate needs to be 4 applied, not every Tuesday or once a month; it just really 5 needs to be done on an as-needed basis. 6 And through all of that, only thing that hasn't changed 7 is that reservoir still needs to be used for drinking water 8 purposes. The drinking water industry is constantly 9 evolving public health goals, and it is something that new 10 municipalities needs to keep up with, and they need to meet 11 those health goals. After September 11th, public 12 governments have less discretionary money that they could 13 use. A lot of that -- a lot of those resources need to be 14 focused on security and find ways of providing water in the 15 best reasonable fashion. And we think that those things 16 need to be focused on. 17 As far as alternatives go, we've looked at different 18 ways of treating the water. There is nothing that is proven 19 to be as affected as copper sulfate at killing algae on an 20 ongoing basis. We could use chlorine, but that would 21 guarantee to kill all of the fish at one time, and that is 22 something that we have already shared with the Regional 23 Board and shared with the county agriculture 24 commissioner and the Department of Health Services. 25 Furthermore, there is nothing that is as accepted in the CAPITOL REPORTERS (916) 923-5447 45 1 drinking water industry. 2 We believe that now is the time to avoid litigation 3 over something like this and the time for the Board to use 4 its discretion and assess this at a reasonable manner and 5 look at the fact that DWP applies copper sulfate now on an 6 as-needed basis and must prevent algae. It is no one's 7 interest to apply too much of that copper sulfate. Given 8 the facts and the law as we have presented in our papers and 9 here today, we believe it would be abusive discretion to 10 either declare that Halle is a water of the United States 11 subject to the Clean Water Act or in the alternative that 12 Los Angeles should spend up to $800,000 to do studies that 13 will show that copper sulfate kills algae and has side 14 effects that may affect other secondary species. 15 If you have any questions. 16 CHAIRMAN BAGGETT: No, not at this time. 17 I don't find it anywhere. Did it drop off our list? 18 MR. C.J. WILSON: Did the water body drop off our 19 list? 20 CHAIRMAN BAGGETT: Yes. 21 MR. C.J. WILSON: No, it is on the list. It is in 22 there. 23 CHAIRMAN BAGGETT: Some other name. 24 MR. C.J. WILSON: I will find it for you. 25 MS. CONBOY: I did see it on your computer list. CAPITOL REPORTERS (916) 923-5447 46 1 CHAIRMAN BAGGETT: I have three different lists here. 2 I looked for it on all of them, and I can't find it. 3 MS. CONBOY: I saw it as a high priority where it had 4 previously been listed at low priority. That is something 5 that we also object to. 6 CHAIRMAN BAGGETT: That is something I think we will be 7 dealing with probably before the Regional Board. In the 8 fall we will have a resolution before then for you. 9 MS. CONBY: Thank you. 10 CHAIRMAN BAGGETT: I think it does bring up -- I think 11 some people here in the room know we had some lengthy 12 discussions on aquatic pesticide statewide permit. That was 13 one of the concerns is applying copper sulfate and other 14 chemicals, at what point is it public health concern versus 15 a frivolous application, if you will, to keep the water blue 16 in a nice resort versus public health concerns. And I think 17 the conclusion was it was truly the public health concerns 18 that is appropriate. If it is not, then it should be 19 regulated under the NPDES permit fairly closely. Not for 20 public health nor for aesthetic issues. Golf courses are 21 not truly being used for drinking water purposes. Something 22 we are familiar with. 23 Dan Gallagher, Victor Valley. 24 MR. GALLAGHER: Thank you, Chairman Baggett, State 25 Water Board staff. My name is Dan Gallagher. I am the CAPITOL REPORTERS (916) 923-5447 47 1 general manager of Victor Valley Wastewater Reclamation 2 Authority, located in the Mohave Desert near Victorville. 3 We serve about 100,000 people and we have 116 square 4 mile service area for wastewater treatment. It is our 5 understanding that Lahontan intends to recommend the Mohave 6 River upper and lower narrows for 303(d) list based on the 7 alleged contamination by PCE and TCE, which are two volatile 8 organic chemicals. 9 Victor Valley Wastewater Reclamation Authority strongly 10 opposes the proposed listing, and we respectfully request 11 that State Water Board consider the following before taking 12 any action on the issue. 13 First off, the proposed listing is based on 14 insufficient data and, therefore, fails to demonstrate the 15 use of good science to support the intended action. It is 16 our understanding that only five samples of surface water 17 were used for the proposed listing, and those samples have 18 been collected by some of our treatment plant operators 19 working jointly with Lahontan staff in an effort to collect 20 data to begin looking at an update to the Mohave Basin Plan. 21 That is a process that's only just started. 22 Lahontan staff report recommend the changes to the 23 303(d) list clearly states that staff resources and time 24 available for the update were limited, and the monitoring 25 data for surface waters for Lahontan Region are limited to CAPITOL REPORTERS (916) 923-5447 48 1 at the present resource constraints at baseline trend 2 monitoring and the fact that Lahontan, the Lahontan Region, 3 has few discharges to surface water and that few sets of 4 discharger monitoring data. 5 Secondly, we feel the fact sheet for the proposed 6 listing states the source of the alleged PCE and TCE is, and 7 I quote, groundwater plumes, source unknown. The proposed 8 listing of the upper and lower narrows is inconsistent with 9 Lahontan proposed delisting of the Mohave River at Barstow, 10 which states the reason for that delisting is, I quote, 11 because pollutants were present in a groundwater portion of 12 the intermittent stream and listings are limited to surface 13 waters. So the Mohave River at the upper and lower narrows 14 is also an intermittent stream, and Lahontan has not 15 demonstrated the constituents that may be present at 16 groundwater are causing a significant contamination of 17 surface waters, either intermittent or -- 18 CHAIRMAN BAGGETT: You are talking about Mohave River 19 between upper and lower narrows? 20 MR. GALLAGHER: Yes. 21 CHAIRMAN BAGGETT: They're all three proposed for 22 delisting. 23 MR. GALLAGHER: I'll tell you, there is some confusion 24 over this. Because originally the Lahontan Regional Board 25 wanted to list the upper and lower narrows for chloride and CAPITOL REPORTERS (916) 923-5447 49 1 TDS and sulfates. That was subsequently removed. But then 2 the Regional Board came back with a proposed listing for TCE 3 and PCE for the same stretch of the river. 4 I'll admit that I can't find it in the State Board 5 reports, but it is in the Lahontan regional materials. 6 CHAIRMAN BAGGETT: That is what I am trying to find. 7 Is it already listed. Those three reaches I don't see. 8 It's not for what those constituents are talking about.  9 MR. GALLAGHER: To my knowledge the upper and lower 10 narrows have not ever been listed before. Even though the 11 information indicates it be delisted for chloride, TDS and 12 sulfates. But I have a water body fact sheet that Lahontan 13 Regional Board has on the Internet now which includes a 14 proposed listing for the upper and lower narrows for TCE and 15 PCE. 16 CHAIRMAN BAGGETT: I have three binders of these. I 17 try to stay on top. It is a challenge. 18 MR. GALLAGHER: I understand. My printer was going 19 crazy printing all this stuff up. 20 Mr. Baggett, I want to make sure we are seeing the 21 same stuff while you're here, making the long trip up here. 22 MR. C.J. WILSON: Mr. Baggett, in our proposal we don't 23 have a listing for TCE or PCE, but Mr. Singer says he can 24 respond. 25 CHAIRMAN BAGGETT: Harold, why don't you respond right CAPITOL REPORTERS (916) 923-5447 50 1 now since we are dealing with this. 2 MR. SINGER: Mr. Baggett, Harold Singer, Executive 3 Officer for Lahontan Regional Board. 4 Mr. Gallagher is looking at the watch list, and we did 5 put that on our watch list for those organics. That is 6 where it is. It is not on our recommended list nor on your 7 recommended list for the State Board staff. So none of us 8 had any intent to put it on the 303(d) list, at least for 9 those constituents. 10 CHAIRMAN BAGGETT: It is not on a list for action for 11 our Board; is that -- 12 MR. SINGER: That is correct. 13 CHAIRMAN BAGGETT: Does that satisfy you? 14 MR. GALLAGHER: Our suggestion was if there was a -- 15 basically we were afraid that there was some kind of 16 contamination and we were going to recommend to be put on a 17 watch list and not on a 303(d) list. 18 CHAIRMAN BAGGETT: What -- this is why we are in the 19 process of developing statewide regulations separate from 20 this so that we have some consistency statewide. I can see 21 the challenge is Region 6 evidently has their own internal 22 watch list. If we put it on ours, it is an official 303(d) 23 list State Board; it is elevated to the official document we 24 send to EPA for the listings which is what these hearings 25 are about. CAPITOL REPORTERS (916) 923-5447 51 1 This is why we're struggling with nine Regional Boards 2 to some consistent process on how they want to have, like, a 3 secondary watch list, which sounds like what is going on 4 here. They are just watching this. So it is not even on 5 our watch list. 6 MR. GALLAGHER: All right. 7 CHAIRMAN BAGGETT: It is not proposed to be on our 8 watch list. 9 Thanks for coming up, and we at least clarified that 10 one. 11 MR. GALLAGHER: Thank you for your time. 12 CHAIRMAN BAGGETT: Bill Thomas again. 13 MR. THOMAS: Mr. Chairman, I am in this presentation 14 representing nobody other than our own ranches. So I really 15 have a passion here. We ranch in Bridgeport and in Mammoth, 16 Centennial Ranches and Wood Ranches. I also serve the 17 California Cattlemen's Association as chairman of their 18 water quality and environmental committees. And I want to 19 tell you a little bit, and I won't be lengthy here, about 20 what we've done in our Mammoth ranches. 21 About a dozen years ago we in coordination with the Los 22 Angeles Department of Water and Power, our landlord, put in 23 the largest riparian restoration project of these sorts 24 dealing in cattle operations. In short, all of the creeks 25 that lead into Crowley Reservoir have all been fenced in CAPITOL REPORTERS (916) 923-5447 52 1 riparian pastures and some areas have exposures and along 2 each of the stream segments were conveyed creek, McGee Creek 3 and Mammoth. In essence we use the -- there is three 4 segments in their linear run, and we use one of those three 5 segments each year to a 50 percent utilization standard, so 6 each area would only see cattle to that grazing level once 7 in every three years. 8 This project has had both regional and national 9 recognition in the environmental and in range management 10 societies. We intend to do the same in our Bridgeport Ranch 11 that we have only had for three years, Bridgeport. We have 12 the heart of Bridgeport Valley. And two of our major 13 creeks, Robinson creek and Buckeye Creek run through our 14 ranches on the way to Bridgeport Reservoir. And we are 15 suggested for listings by the Regional Board, and you have 16 modified to some extent and I will speak to that in just a 17 moment. 18 You were talking a moment about consistency of 19 standards across different regions. In the Lahontan Region 20 so much of the water quality standards have been based on 21 the high quality and high purity levels of Tahoe. Our 22 standards, which are in the Basin Plan, we recognize, but 23 just so we know the levels that we are talking about here, 24 fecal coliform were only 20 colonies per hundred milliliters 25 on an average over 30 days. The nitrogen is only .8 CAPITOL REPORTERS (916) 923-5447 53 1 milligrams and phosphorous is .06. These are exceedingly 2 low levels and uniquely low in Lahontan. 3 Turning to the recommended changes, I will speak first 4 to the recommendation to list Robinson Creek for 5 nitrogen. And you have downplayed it to a watch 6 recommendation. We do not think it even meets that 7 criteria. When we were talking earlier about how we would 8 evaluate something that has one, the measured exceedance. 9 This is a bad example. There is only a single sample of 10 exceedance, and it doesn't exceed the water quality 11 objective. It exceeds only the 90 percent level of 12 that. There is also no data in this that links it to 13 cattle, and there are notations made that they're likely 14 natural contributions. 15 We think that if you really have a watch list that 16 takes on the official character that this one has, that this 17 does not meet even that standard. 18 Let me turn, then, to Buckeye Creek. Buckeye Creek is 19 proposed to be on the watch list for phosphorous. Here 20 across the samples, and there were nine samples only, the 21 annual mean not only did not exceed the water quality 22 standard of .06, the average, less than half of the standard 23 at .29. 24 The only way it arguably by the Regional Board had met 25 a listing criteria is one of those nine samples exceeded the CAPITOL REPORTERS (916) 923-5447 54 1 90 percent of that standard. And there is specific notation 2 that the contribution is partially from natural sources. 3 I submit that if you make your watch list, qualified 4 for listing everything that is less than half of the water 5 quality standard, we probably ought to put most everything 6 on a watch list, and then we eroded the meaning of a watch 7 list. 8 My last comment, Mr. Chairman, has to do here with the 9 proposed listing of Buckeye Creek for pathogens. There was 10 no average over the 20 colonies, which is the standard. But 11 six of the 14 samples exceeded as a spike the 40 per hundred 12 milliliters. And again, no linkage to cattle other than 13 just a notation that, well, we went and sampled it at the 14 times when we thought there were cattle in the area. 15 We will make more specific comments regarding the data 16 that is presented. We think this would probably meet the 17 test for a watch list, but not, you know, for a listing. 18 I want to in closing share with you, Mr. Chairman, that 19 on the Bridgeport Ranch we are in the final throws of 20 implementing an environmental conservation easement with the 21 American Land Conservancy. As a matter of fact, Fish and 22 Game is highly supporting this. It goes before the next 23 meeting of the Wildlife Conservation Board. The easements 24 have already been finalized. 25 I want to share with you the one component of that. It CAPITOL REPORTERS (916) 923-5447 55 1 says in order to protect the conservation values, landowner 2 agrees to conduct all ranching operations in accordance with 3 best management practices with respect to water 4 conservation, the nutrient management habitat protection. 5 Managers shall -- Strike that. 6 The landowners shall manage the riparian areas along 7 Buckeye and Robinson and East Walker River within the 8 easement to preserve the habitat in support of it and fish 9 and wildlife resources in accordance with good management 10 practices. Landowners shall within five years establish the 11 riparian pastures along the stream reaches, and within those 12 livestock shall be maintained according with the management 13 plan developed to protect riparian habitat. The landowners 14 used fencing in connection with riparian restoration. It 15 goes on. 16 This is the absolute implementation of best management 17 practices. This is tier one under the nonpoint source plans 18 of the state. We have very limited data here. We have this 19 basin that is virtually all of these streams in the basin, 20 just a couple slashes on the upper end of Honeywell, are 21 within these ranch confines. We think even the pathogen 22 listing on that creek should be put in a watch list and 23 reviewed over the time when the best management practices 24 are being imposed. This is a place where the regulatory 25 structures of the state and the TMDL process are going to be CAPITOL REPORTERS (916) 923-5447 56 1 unnecessary to preserve at the Bridgeport Valley. 2 Thank you. 3 CHAIRMAN BAGGETT: Bill, who took the samples? 4 MR. THOMAS: I am not sure who the samples were taken 5 by. We were confused. 6 CHAIRMAN BAGGETT: Did you contract for it or the 7 Regional Board? 8 MR. THOMAS: When we saw the listing, we called the 9 Lahontan Board and asked them to provide to us all the 10 information that would support these listings. We got that 11 just last week. And so all we see is the data that is 12 there. It wasn't clear to us if this had come from the 13 University of California and in advance of some sampling 14 over in that area, whether this is that or something to that 15 Harold's people did or otherwise. I am not certain, Mr. 16 Chairman. 17 CHAIRMAN BAGGETT: Thank you. 18 MR. THOMAS: You bet. 19 CHAIRMAN BAGGETT: Chuck Hungerford, and we have one 20 other card after that. 21 Anybody else out there for Region 6? 22 MR. HUNGERFORD: Thank you, Mr. Chairman. My name is 23 Chuck Hungerford. I am with Heller, Ehrman, White & 24 Mcauliffe. I am here today to speak on behalf of IMC 25 Chemicals. CAPITOL REPORTERS (916) 923-5447 57 1 We do appreciate this opportunity to comment on the 2 State Water Board's staff recommendation concerning Searles 3 Dry Lake. Searles Lake is located in the area governed by 4 the Lahontan Regional Board. It is identified in the 5 Lahontan Basin Plan as a saline dry lake located in the 6 Trona hydrologic unit. The lake is in the eastern part of 7 California, and it is about an hour's drive from Death 8 Valley. 9 The Lahontan Regional Board staff recommended that the 10 lake be listed for petroleum hydrocarbons and delisted for 11 salinity, TDS and chlorides. The State Water Board staff in 12 the recommendations that have recently come out recommended 13 that Searles Dry Lake be listed for both constituents, both 14 petroleum hydrocarbons and salinity/TDS/chlorides. 15 IMC submitted information to the Regional Board staff 16 during the public comment period on the region's 17 recommendations, and it has also submitted information and 18 data to the State Board staff in response to the state 19 staff's recommendations. And the information submitted by 20 IMC address the reasons that were given by both Regional and 21 State Board staff for their recommendations. And we believe 22 that the information submitted provides information that 23 shows that the lake should be delisted for both, 24 hydrocarbons and salinity, TDS and chlorides. What I would 25 like to do is summarize real quickly the reasons given by CAPITOL REPORTERS (916) 923-5447 58 1 the State Board staff for the recommendation, and then 2 indicate how the information we submitted addressed that 3 basis. 4 So first for keeping in place the listing for salinity, 5 TDS and chlorides. Actually if you are looking at the State 6 Board staff recommendations they are in Volume 3. 7 CHAIRMAN BAGGETT: I've got them. 8 MR. HUNGERFORD: With regard to salinity, the 9 recommendation appears on Page 6-8, 6-8 of Volume 3. 10 The first reason given by the State Board staff for 11 recommending that salinity stay in place is that there -- I 12 will read it: insufficient data to delist. No monitoring 13 data provided to show that discharges of brine from IMC to 14 not elevate brine concentrations above already high natural 15 levels. 16 So the basis for the listing was uncertainty or lack of 17 data to show that IMC contributed or added salinity to the 18 already high salinity levels of this brine. And the 19 information we submitted, that IMC submitted, is data that 20 shows that the level of salinity in the discharge brine from 21 IMC is much less than the levels of salinity in either the 22 subsurface brine or in the ephemeral waters that occur 23 naturally on the lake bed surface. That actually makes a 24 whole lot of sense. 25 What the company does is that it extracts brine from CAPITOL REPORTERS (916) 923-5447 59 1 the subsurface of the lake bed, pumps the brine to the 2 plant. The plant then removes minerals, including various 3 salts, of the brine and then the brine is discharged back to 4 the lake bed, either on the surface or injected into the 5 subsurface. So the company is in a sense identifies 6 desalinizing the brine; it is taking salts out of the 7 brine. 8 The data that has been developed shows that that is, in 9 fact, occurring, that the levels in the discharge brine are 10 less than the level of salts in the groundwater and in the 11 surface water. 12 Second reason given by the State Board staff for 13 recommending that salinity continues to be a constituent 14 that the lake is listed for is that -- I will read it again: 15 Insufficient information to show that waterfowl deaths are 16 caused solely by petroleum hydrocarbons and not affected by 17 elevated brine levels. 18 In other words, what they are saying is there have been 19 some waterfowl found dead at the lake. There is 20 insufficient data to show whether or not these waterfowl 21 died from drinking the brine, drinking the salt. 22 MR. LEVY: Clarification, Mr. Chairman. 23 Can we have clarification on the page you're reading 24 from? 25 MR. HUNGERFORD: It's summary of recommendations and CAPITOL REPORTERS (916) 923-5447 60 1 it's Page 6-8. It's the version that I got from the 2 Internet. 3 CHAIRMAN BAGGETT: Top of the page. Horizontal 4 sheet. 5 MR. LEVY: Thank you. 6 MR. HUNGERFORD: The issue of waterfowl has been a real 7 concern to all of us. And IMC Chemicals has been working 8 closely with the Lahontan Regional Board and the Department 9 of Fish and Game to investigate the issue and minimize the 10 occurrence of waterfowl harm. As part of that effort, 11 waterfowl have been collected, dead waterfowl have been 12 collected, when found, and they have been subject to 13 necropsies that were done by the California Animal Health 14 and Food Safety lab at U.C. Davis, and also by the 15 Department of Fish and Game's pollution control laboratory, 16 independent laboratories conducting an analyses of the birds 17 that have been found. 18 The necropsy reports -- summaries of the necropsy 19 reports were provided to the Lahontan Regional Board staff 20 with our comments to them. Those reports were reviewed by 21 Dr. Fry who is with the Department of Animal Science at 22 U.C. Davis. And Dr. Fry put together a report of his 23 analysis of the various necropsy reports that were performed 24 on the birds. That report was submitted to the State Board 25 staff, with IMC comments just recently. CAPITOL REPORTERS (916) 923-5447 61 1 What Dr. Fry found was that the birds did not die from 2 gulping down the brine, that the most likely cause of death 3 was simply dehydration. These were birds on migratory 4 flyways. They were often -- the birds that were weak or 5 very thirsty from their long migratory flight would land on 6 Searles Dry Lake area, and there is no water there or very 7 little freshwater there for them to drink. And it is that 8 lack of water that was the problem. 9 Dr. Fry had pointed out two things to support his 10 conclusion. One is he cited a number of studies where 11 waterfowl were exposed to brine. And what the studies found 12 is that the birds don't gulp down the brine when they get 13 thirsty. They may taste the brine, but realize it is not 14 good for them and shake their heads and get rid of the 15 brine. So the prior studies did not find birds drinking the 16 brine. 17 Another factor that influenced his decision was the 18 fact that brine as Searles lake has a particular chemical 19 fingerprint. It consists of a number of different mineral 20 constituents at certain percentages. And the necropsies of 21 the birds in looking at those constituents and percentages 22 of those constituents found in those birds was much 23 different from the fingerprint for Searles Lake brine, 24 leading to the conclusion that they really didn't drink the 25 brine. At least they didn't find that in the evidence of CAPITOL REPORTERS (916) 923-5447 62 1 having ingested the brine in the birds because the 2 fingerprint of the brine constituents did not exist in the 3 birds. 4 Maybe pointing one other point. The brine at Searles 5 Lake is naturally occurring. And we submitted data to the 6 Lahontan Regional Board that substantiates the fact that 7 this is a naturally saline, high TDS level lake. We notice 8 that the State Board staff has recommended that where the 9 constituents are naturally occurring, they are recommending 10 that they not serve as the basis for listing in 303(d), and 11 we request that that same conclusion be applied to Searles 12 Lake. 13 The second constituent of concern is petroleum 14 hydrocarbons. That is discussed on Page 6-4 of the staff 15 recommendations, actually the summary of staff 16 recommendations. There is a more detailed discussion on 17 Page 6-6. That's probably the one to best look at, 6-6. 18 And there the recommendation indicates that there have 19 been observations of visible oil on the surface of the lake, 20 that waterfowl have been collected by Fish and Game covered 21 with oil. Thus there is a link between oil and adverse 22 effect on beneficial use. One of the designated beneficial 23 uses for Searles Lake is wildlife habitat. 24 We think -- we believe that the necropsies that were 25 performed on the waterfowl and Dr. Fry's report, his CAPITOL REPORTERS (916) 923-5447 63 1 analysis of those necropsies, shows there is not a link 2 between hydrocarbons and the waterfowl deaths. Of all the 3 birds collected at the lake and subjected to necropsies, 4 only one of them had any evidence of hydrocarbons on either 5 feathers or stomach. So looking at the necropsy results 6 performed by Fish and Game, only one bird had evidence of 7 oil on feathers or something. 8 CHAIRMAN BAGGETT: Isn't this an issue of enforcement 9 with Regional Board already? I know this has been on the 10 Regional Board's agenda more than once. 11 MR. HUNGERFORD: It has. As I said, this is an issue 12 that we all -- 13 CHAIRMAN BAGGETT: Not in terms of the 303(d) context. 14 It's been on the Regional Board agenda for other -- 15 MR. HUNGERFORD: For other issues, yeah, including 16 control of oil. Actually a question of designated as a 17 beneficial use for a wildlife habitat albeit a body of 18 water. So it has come up in another different context. 19 CHAIRMAN BAGGETT: I think in this process that would 20 probably be useful information for us to consider, if there 21 is other NPDES which I would know only because I am liaison 22 of that Board. Something that this staff that is working, 23 Craig, et al., are not normally dealing with the Regional 24 Board in NPDES permit issues and enforcement actions. So I 25 think that is something we -- that would be new information CAPITOL REPORTERS (916) 923-5447 64 1 that I think would be useful for this process, for us to 2 understand the other regulatory mechanisms of work here 3 because I know there is a lot of action at Searles Lake. 4 MR. HUNGERFORD: You mentioned NPDES. That is an issue 5 now that will be addressed soon by the Lahontan Regional 6 Board. 7 CHAIRMAN BAGGETT: I understand. And what would be 8 useful for us, since this is a closed system and it is not 9 flowing anywhere, maybe this is one of those places which is 10 among PAG and other people right now -- is there are other 11 regulatory schemes that are appropriately dealing with 12 impairment, maybe we should let those schemes -- might be a 13 better mechanism to deal with this issue than just listing 14 it. 15 MR. HUNGERFORD: Rather than 303(d). 16 CHAIRMAN BAGGETT: I think that would be worth looking 17 at in terms of all these other factors in play. If you can 18 provide that information because I hate to rehash here all 19 the discussions that I know have been going on for hours at 20 Regional 6 Board meetings, and try to capture that in five 21 minutes. 22 MR. HUNGERFORD: If I understand right, you would like 23 us to maybe summarize for State Board staff. 24 CHAIRMAN BAGGETT: Or work with the region. I am sure 25 Harold can -- there is documents, there is discussions, CAPITOL REPORTERS (916) 923-5447 65 1 there is just short summaries of various actions. That 2 would be useful, I think, for us to see that. 3 MR. HUNGERFORD: Okay. Maybe I will stop there. I 4 think I made the point about saline and we will work further 5 on the petroleum issue. 6 Thank you. 7 CHAIRMAN BAGGETT: Thank you. 8 With that, Harold, the last card. We don't need to 9 rehash Searles Lake here. 10 MR. SINGER: Okay. 11 CHAIRMAN BAGGETT: I think you understand what I -- 12 MR. SINGER: We will be happy to work with IMC. 13 CHAIRMAN BAGGETT: I think you understand that Craig 14 and Mike would not be familiar with this whole body of 15 information out there. That is one of the problems. We 16 have all these little compartmentalized laws. We don't look 17 at the whole plethora of actions. That is one of the 18 frustrations earlier with the Bay-Delta issues is that in 19 Bill's role or Michael Sexton who was here earlier, we've 20 got all kinds of water rights issues, water right orders, 21 and how do we make some -- get the end result we all want 22 without being bogged down in 18 different methods to get 23 there? Let's just find one that is most appropriate and go 24 for it and get the problem fixed. I'm sort of pragmatic 25 about this. I think this might be one of those cases where CAPITOL REPORTERS (916) 923-5447 66 1 there is another way to fix the problem. 2 You got any other comments? 3 MR. SINGER: Real quick. Since I am the last speaker 4 I'll be real quick. I have about three or four different 5 comments on different water bodies. 6 CHAIRMAN BAGGETT: We have your written -- 7 MR. SINGER: For the record, Harold Singer, Executive 8 Officer for the Lahontan Regional Board. 9 Let me comment, Mr. Baggett, on the Searles Lake just 10 for one second. The key that we looked at as to whether or 11 not the Board recommended listing that was whether or not 12 the other regulatory mechanisms would solve the pollutant 13 problem within two years. That is till that next listing. 14 That is our understanding of criteria that would say you 15 don't list it if it will be solved using other mechanism in 16 two years. We didn't think we could support that position 17 or state that position on the record. Clearly, we think 18 that that problem is on its road to solution and will be 19 solved through a regulatory mechanism rather through a 20 TMDL. But, again, that is your call as to whether or not -- 21 how you want to work with that on a list. We will provide 22 that information. 23 CHAIRMAN BAGGETT: That is the challenge I think we are 24 struggling with here, because it is a lot of work and a lot 25 of time, not just for our staff, for your staff, for both CAPITOL REPORTERS (916) 923-5447 67 1 sides. There are two sides to the issue out in the water 2 body. If it is something that is going to be fixed in 2.8 3 years through an NPDES process, then you have to go about 4 undoing all this stuff. Can you automatically sunset or do 5 you have to go back and wait three more years and go through 6 the stuff to delist, when, in fact, you've proven through 7 the monitoring data and through other process that that is a 8 fact? That is the challenge we're up against. 9 MR. SINGER: I think that's a policy call that you're 10 going to have to make. We will give you the data to help 11 you make it. 12 CHAIRMAN BAGGETT: I don't know that we can 13 automatically have sunset TMDLs and automatically sunset if 14 this condition happens. That would be an interesting 15 concept. MR. SINGER: My understanding is that the 16 next soliciting cycle, when we got the data, we could just 17 come back to you and say, we now have the data to delist 18 it. We'd never even start a TMDL, wouldn't even go into the 19 TMDL process. 20 CHAIRMAN BAGGETT: Right, Because by the time you had 21 the Board noticed for a hearing and everything is on track, 22 it is not going to be a problem. 23 MR. SINGER: We're just trying to follow what we 24 understand the regulations are relative to listing. Looking 25 forward to yours, your decision on that. CAPITOL REPORTERS (916) 923-5447 68 1 CHAIRMAN BAGGETT: I appreciate that. 2 MR. SINGER: Let me just comment briefly on the waters 3 of the United States, to talk about that, because I think 4 you got our memos that said just because the Board put those 5 two water bodies, Searles and Halle, on, the Board has not 6 made a determination as to whether they are waters of the 7 U.S. 8 CHAIRMAN BAGGETT: Right. 9 MR. SINGER: I think both IMC Chemicals and LADWP have 10 legitimate issues that need to be looked at. The water body 11 determination as to whether it is a water of the U.S. is a 12 real water body fact specific legal determination and has to 13 be made on a case-by-case basis in the post swank area, and 14 we are prepared to do that for both of those water bodies, 15 subject to the fact if you don't do it first. 16 So, you know, I think -- I guess the key would be is 17 the 303(d) list the forum to determine if it is a water of 18 the United States or not. I think that is really the key 19 question. 20 CHAIRMAN BAGGETT: The discussion we are having? 21 MR. SINGER: Yeah. We are prepared to take it up and 22 deal with it on those specific water bodies. 23 The other issue, I just want to bring up here real 24 quick is the LADWP's issue about water supplies seeming to 25 preempt the California Water Code or the Clean Water Act. CAPITOL REPORTERS (916) 923-5447 69 1 Again, I'm not sure if that is a 303(d) issue or that is 2 really an implementation thing. I think the Regional Board 3 is very cognizant of the fact that DWP has a mission and the 4 use of copper sulfate may be consistent with that mission. 5 We've also looked at it from the perspective that if it 6 wasn't for the Board's getting involved in Halle Reservoir 7 in the mid 1990s, LADWP would be continuing to add copper 8 sulfate at historic rates, which were very significant, 9 probably well over what was needed. The mechanisms that 10 maybe were inappropriate, as Ms. Conby indicated earlier 11 today. So I think that needs to be put in a perspective. 12 The other aspect in a joint power body is the studies 13 that we are asking to be done, LADWP to do, are not looking 14 at current usage, but looking at the effect of past uses of 15 chemicals in that reservoir, what is the release from the 16 sediments, the historic buildup in sediments and what is the 17 impact of that. 18 I want to be real clear that there is a misconception 19 about the need for some of these studies. 20 CHAIRMAN BAGGETT: That is clarification that I don't 21 think comes up in our summary. That is something, like I 22 encouraged everybody else here, provide -- maybe if you can 23 provide some information that there is evidence in the 24 sediments. That's a whole other ball game. That's never 25 come up in anything that I've read, anything that I've CAPITOL REPORTERS (916) 923-5447 70 1 heard. And I can see nodding from our staff, not in the 2 information they have seen. That is a whole other set of -- 3 MR. SINGER: That is part of our TMDL process, to 4 figure out what is causing the acute toxicity. 5 CHAIRMAN BAGGETT: The process we are doing now is 6 different, I understand, than our previous Boards have 7 done. Myself, Pete Silva and now Gary Carlton, 8 particularly, are spending hours the way we are working 9 through this process so you know we won't break down by 10 regions and who is at the hearing. I'm not going to 11 Ontario. So Gary and Pete will work on those four regions 12 with staff to revise the comments that come back to our 13 Board. I'm going to be working on 5 and 6 and probably 14 North Coast Region. 15 MR. SINGER: We will provide that information. 16 CHAIRMAN BAGGETT: If you get us that information, I 17 can guarantee you that staff will be involved in it very 18 closely and I will be involved as the person who is aware of 19 all of your comments, not just yours. 20 MR. SINGER: The other aspect, the Halle Reservoir 21 issue, too, is that we are also looking at upstream sources. 22 We believe that there may be some control to the source that 23 will reduce the nutrient input to Halle Reservoir, that will 24 minimize the need for LACWP to even add chemicals because, 25 again, we think that there are controllable sources that CAPITOL REPORTERS (916) 923-5447 71 1 will deal with the situation on a watershed-wide basis, and 2 that is what we are trying to look at. 3 Just for the information on that. And finally the last 4 item is on the Mohave that I wanted to comment on. We don't 5 think that is a delisting issue. It is not on the existing 6 303(d) list. We think it ought to be taken off the list 7 entirely. 8 CHAIRMAN BAGGETT: Maybe you can, since you are up 9 here, pull Thomas' concerns on those three creeks over near 10 Bridgeport. 11 MR. SINGER: I haven't looked at the fact sheet. 12 CHAIRMAN BAGGETT: I'm just curious where the data -- 13 MR. SINGER: My understanding is that is USGS data. 14 CHAIRMAN BAGGETT: You have six monitoring sites which 15 is a lot for a reach like that. What seasonality? What 16 runoff? Cows, how many cows? Where there are no cows there 17 are so many variables when you're dealing with that kind of 18 stuff. 19 MR. SINGER: And there are other sources in the 20 watershed. It is not just cows. We have septic solutions, 21 too. 22 CHAIRMAN BAGGETT: I would like that information too. 23 MR. SINGER: Again, part of the TMDL process is to 24 determine what are the sources and what can we do with, if 25 anything, about them. Again, there is some data. It is not CAPITOL REPORTERS (916) 923-5447 72 1 a great extent of data. But the data does indicate that 2 there are exceedances of our standards. The question really 3 comes down to, in your judgment, whether that data is 4 sufficient to list or put on the watch list. 5 CHAIRMAN BAGGETT: Any other comments from anyone? 6 If not we are concluded, and unless you want to go to 7 Ontario next week. 8 Thank you for your time and comments. 9 (Hearing adjourned at 10:50 a.m.) 10 ---oOo--- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 73