                  

                  

                             STATE WATER RESOURCES CONTROL BOARD

                  

                  

                  CONSIDERATION OF A RESOLUTION TO APPROVE THE 2002           

                        FEDERAL CLEAN WATER ACT SECTION 303(d) list OF

                                WATER QUALITY LIMITED SEGMENTS

                  

                  

                                  TUESDAY, FEBRUARY 4, 2003
                                          1:00 P.M.
                  

                  

                                  JOE SERNA CAL/EPA BUILDING
                                     SIERRA HEARING ROOM
                                    SACRAMENTO, CALIFORNIA
                  
                  

                  

                  

                  

                  
                  
                  
                  
                  
                  
                  
                  REPORTED BY:                            ESTHER F. SCHWARTZ
                                                          CSR NO. 1564
                  
                  




                  
                               CAPITOL REPORTERS (916) 923-5447            

             1    
                  
             2                           APPEARANCES

             3    STATE WATER RESOURCES CONTROL BOARD:
                  
             4         ARTHUR G. BAGGETT, JR., CHAIR
                       PETER SILVA
             5         RICHARD KATZ
                       GARY M. CARLTON
             6    
                  STAFF:
             7    
                       CRAIG J. WILSON
             8    
                  COUNSEL:
             9    
                       CRAIG WILSON    
            10         MICHAEL LEVY
                  
            11    INTERESTED PERSONS:
                  
            12         DAVID SMITH
                       LINDA SHEEHAN
            13         SUJATHA JAHUGIRDAR
                       RICHARD WATSON
            14    
                  REGION 9:
            15    
                       JIMMY SMITH
            16         MARY JANE FOLEY
                       LARRY MCKENNEY
            17    
                  REGION 5:
            18    
                       JIM WELLS
            19         BILL JENNINGS
                       ALAN CANDLISH 
            20         STEVE CHEDESTER
                       DAVID CORY
            21         JOE KARKOSKI 
                       PETER MCGAW
            22    
                  REGION 6:
            23         SHANA LAZEROW
                       SEJAL CHOKSI                  
            24            

            25    




                  
                               CAPITOL REPORTERS (916) 923-5447            

             1    

             2                       APPEARANCES (CONT.)

             3    REGION 4:

             4         VICKI CONWAY
                       JULIE CONBOY
             5         JON BISHOP
                       ADAM ARIKI
             6         T.J. KIM      
                     
             7    REGION 2:
                       ANJALI JAISWAL
             8         LESLIE MINTZ
                       RODNEY ANDERSON
             9         ADAM ARIKI
                  
            10    REGION 1:
                       MARY ETTER
            11         STERLING MCWHORTER
                       SALLY FRENCH
            12         ALAN LEVINE
                       CRAIG BELL
            13         VIVIAN BOLIN
                       DON MCENHILL   
            14         KATHLEEN SULLIVAN
                       BERNIE BUSH
            15         PETER REBAR
                       JIM OSTRUWSKI 
            16         DAVID BISCHELL
                       DAVID LELAND
            17    
                  
            18                            ---oOo---

            19    

            20    

            21    

            22    

            23    

            24    

            25    




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                              CAPITOL REPORTERS (916) 923-5447             

             1              TUESDAY, FEBRUARY 4, 2003, 1:00 P.M.

             2                     SACRAMENTO, CALIFORNIA

             3                           ---oOo---

             4            CHAIRMAN BAGGETT:  Good afternoon.  We have 

             5    plenty of room down front.  You don't have to stand in 

             6    the back.  

             7         Welcome back to the Board meeting of the State 

             8    Water Resources Control Board for February 4th, 2003.  

             9    And since we have already been here, we will continue.  

            10    This is the Board meeting to hear comments and consider 

            11    adoption of the proposed 303(d) list additions and 

            12    deletions.  

            13         Craig.

            14              MR. C.J. WILSON:  Good afternoon.  My name is 

            15    Craig J. Wilson.  I am chief of the TMDL listing unit in 

            16    the Division of Water Quality.  The next item before the 

            17    Board is consideration of a resolution to approve the 

            18    2002 Federal Clean Water Act, Section 303(d) list of 

            19    water quality limited segments.  The staff proposal is 

            20    for the Board to adopt a new 303(d) list with 1,851 

            21    segment pollutant combinations and 680 water bodies 

            22    segments.  We are also proposing that the Board approve 

            23    of the submittal of an enforceable program list, a 

            24    monitoring list and a TMDL completed list.  

            25         The structure of the list is consistent with EPA 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    regulations, consistent with EPA's -- USEPA 

             2    interpretation of the regulations and the Clean Water 

             3    Act, as well as their guidance to states on developing 

             4    the 303(d) list and 305(d) report.  This item was 

             5    discussed at the Board's November 2002 workshop.  Since 

             6    the draft was released last October, 130 organizations 

             7    and individuals have submitted letters or provided 

             8    testimony.  We have summarized all the new comments.  We 

             9    responded to each of those comments and made many 

            10    changes to the proposed list.  

            11         The major changes to the October draft version are 

            12    summarized in the change sheet that is in your package.  

            13    If you wish, I can go through each of those changes and 

            14    describe them to you.  You are going to have a lot of 

            15    speakers and have a chance to discuss a lot of the 

            16    proposals, I'm sure.  

            17         I would like to take a few minutes now.  We have 

            18    received about 22 or so letters, and I want to run 

            19    through the new comments we received and give some brief 

            20    responses to those comments.  Comments that have been 

            21    proposed that are old comments, I'm not going to respond 

            22    to again because they have already been dealt with.    

            23         First one, first comment letter is from Linda 

            24    Sheehan from the Ocean Conservancy.  Many of the 

            25    comments were sent in previous letters.  There are a 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    couple of new comments, however.  One related to the 

             2    monitoring list and the elimination of SWMP.  We have 

             3    set up the list to -- when we set it up in October, we 

             4    focused on using just the SWMP dollars to fund the 

             5    monitoring.  Since that time we've received a number of 

             6    comments that convinced us that we should, before we 

             7    consider using those SWMP dollars and the dollars that 

             8    might be available or not available, that we turn to the 

             9    regulated community for voluntary efforts or the 

            10    Regional Boards can use their 13267 authorities to 

            11    require the needed monitoring.  

            12         I think the regulated community is going to start 

            13    stepping forward to address some of the monitoring 

            14    needs.  One examining in the current proposal is Laguna 

            15    De Santa Rosa where a water body on the monitoring list 

            16    is going to be funded in a significant way by the City 

            17    of Santa Rosa.  More about that in a few minutes.  

            18         Invasive species, we've dealt with that fairly 

            19    carefully.  There is some new comments on it.  However, 

            20    TMDLs are quite useful for pollutants that focus on 

            21    those kinds of chemicals that dissipate or dilute or 

            22    accumulate in the environment.  It is another matter for 

            23    developing a TMDL for substances that propagate.  

            24    Invasive species need to be prevented from entering our 

            25    water bodies.  TMDLs are an after-the-fact kind of 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    process.  There are problems with invasive species.  The 

             2    TMDL program probably isn't the right way to address 

             3    them.  

             4         Moving to the comments for Region 1, let me go 

             5    through all of those.  We received a large submittal 

             6    from the California Forestry Association.  They 

             7    complained about our notification process and the fact 

             8    that we did not mention that there were changes in the 

             9    list, especially related to temperature in North Coast 

            10    rivers.  There were dozens of changes in our process.  

            11    We notified everybody of the availability of our 

            12    documents.  It was readily presented in those documents.  

            13         The new information that was submitted by CFA was 

            14    not new information for the most part.  Most of it was 

            15    already in the record and was considered by the Regional 

            16    Board and State Board staff.  The exception was 

            17    monitoring study group meeting minutes which presented 

            18    preliminary data of an active project located in the 

            19    Central Valley outside of the North Coast region.  This 

            20    new information contained very little data on the study 

            21    or information on the study.  For example, there were no 

            22    QA data provided or submitted, no numerical data were 

            23    presented.  Frankly, it was a summary of a meeting.  

            24         The Hill Slope Monitoring Report presented new 

            25    information that was considered, but it focused on the 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    effectiveness of the Forest Practices Rule; it did not 

             2    contain an analysis that contained instream monitoring 

             3    information that was useful in the listing process.  The  

             4    Forest Science Project report, quite a large report, 

             5    presented information that is already in the record that 

             6    we relied on heavily.  It showed that the need for 

             7    considering site-specific factors in establishing 

             8    temperature limits, the geography, the climate, the 

             9    aspects of the direction the watershed is placed as well 

            10    as canopy, all of those factors affect temperature.  

            11         Lastly, the last major thing was CFA felt that 

            12    their proposal set a single stream temperature standard 

            13    for all streams in the North Coast, and that was 

            14    inappropriate.  I would like to empathize again this 

            15    process is not about establishing standards.  It is 

            16    about how we interpret those standards.  The Regional 

            17    Board pulled together -- they had their narrative 

            18    objective.  They compared it to credible information 

            19    risk assessments that were applicable in this situation.  

            20    And they used the kinds of information from the Forest 

            21    Science Project to make this a credible proposal.  

            22         Based on the information in the record and 

            23    considering these comments, I don't recommend any change 

            24    to the listings for the North Coast rivers for 

            25    temperature.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1            Also related to North Coast temperature 

             2    listings, we received a letter from the United States 

             3    National Marine Fisheries Service that supports the 

             4    listing.  They made a nice, brief summary of the data 

             5    available and continued their support for these 

             6    listings.  

             7         Community Network for Appropriate Technologies, a 

             8    letter of support for the Russian River temperature and 

             9    the Laguna De Santa Rosa listing for low DO.  

            10         Coastal Forest Alliance, this letter focused on 

            11    moving the temperature listing from the watch list to 

            12    the three 303(d) list.  They erred -- it's contrary to 

            13    what we are proposing.  We are proposing to put these on 

            14    the 303(d) list.  

            15         Another letter of support for the Russian River 

            16    temperature listing and Laguna De Santa Rosa DO from 

            17    Peter and Joan Vilms.  

            18         Another letter of support from Veronica Jacobi and 

            19    David Gougler supporting the Russian River and other 

            20    temperature listings as well as the DO listings for 

            21    Laguna De Santa Rosa, and their tentative support for 

            22    the listing of Laguna De Santa Rosa on the monitoring 

            23    list for nutrients.  They definitely want to participate 

            24    in that study in a fair and equitable way.  

            25         The City of Santa Rosa sent a letter supporting the 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    listing for Laguna De Santa Rosa on a monitoring list 

             2    for nutrients and continued to commit to funding the 

             3    study to this important work.  

             4         Brenda Adelman also agreed with the other 

             5    commenters on supporting the listings as well as the 

             6    other listings for Laguna De Santa Rosa.  Those are the 

             7    comments for Region 1.

             8         In Region 4 -- there were no comments for Region 2 

             9    and 3.  Region 4, the City of Whittier sent a letter to 

            10    us.  It was exactly the same as the letter from the City 

            11    of Bellflower.  We responded to Bellflower, so there is 

            12    no additional responses I need to make. 

            13         The City of Vernon submitted a letter that is 

            14    exactly the same as the letter from the City of Signal 

            15    Hill.  We responded on the record to those comments.  I 

            16    don't have anything further to say.  

            17         We received a letter from a councilperson from the 

            18    City of Compton and a number of high school students on 

            19    trash in Compton Creek.  They submitted a video, 

            20    brochures, volunteer cleanup values, the number of 

            21    pounds of trash picked out of that creek.  I still can't 

            22    tell if there is a specific problem that is related to 

            23    trash in that creek.  I saw both clean conditions and 

            24    very, very dirty conditions in that water body.        

            25         Notwithstanding that statement, this creek, I've 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    been told by the Regional Board staff, is covered by the 

             2    L.A. River TMDL.  And their intention is to address the 

             3    problems with trash in Compton Creek under that TMDL.  

             4    So I don't recommend any additions to the TMDLs based on 

             5    this letter.  

             6         We received a letter from Heal the Bay.  Many of 

             7    the comments were repeated from previous correspondence.  

             8    One portion of the letter is new, and that is related to 

             9    our review of the bacterial data.  I've been working 

            10    with a team of scientists from SCCWRP, public health 

            11    departments in Southern California, Heal the Bay,  

            12    Regional Boards on developing a proposal to you for this 

            13    policy that is coming up soon.  That effort was going so 

            14    well, we thought it was appropriate to use the concepts 

            15    that were coming out of that.  There are disagreements 

            16    over those concepts.  

            17         Factually, I presented what we did in the proposal 

            18    to that group.  There were no complaints to me about 

            19    that.  We moved forward with reevaluating those data.  

            20    And so I feel very confident that we have done an 

            21    adequate job on that.  There's been no other comments  

            22    from the Regional Boards or public health people about 

            23    how we are not doing that appropriately.  There is 

            24    definitely some disagreements about the policy direction 

            25    and the stringency of this, and we need to face those.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1    But I think we face those under the development of a 

             2    policy.  

             3         The City of Los Angeles.  Many old comments were -- 

             4    this was the County of Los Angeles, Department of Public 

             5    Works.  They submitted all of their previous comments 

             6    and about half of the data that they submitted to us is 

             7    new information.  I received it late last week.  There 

             8    was not time to review the information.  We just made a 

             9    decision that there was so much new information provided 

            10    by so many people, that based on the record that we have 

            11    up to December 6 when the record closed, we are not 

            12    reviewing any additional information.  

            13         But one point that they presented last time that I 

            14    think needs to be addressed one more time is they 

            15    maintained that the State Regional Board should only use 

            16    acute criteria when evaluating water quality in 

            17    concrete-like channels.  

            18         I'm not given a license to pick which standards 

            19    apply.  The California Toxics Rule lays out which 

            20    standards apply, and it is both the chronic and the 

            21    acute.  And that is what we did.  That is foundation for 

            22    our proposal.  

            23         The City of Burbank.  This is another example where 

            24    additional data were submitted after December 6th.  

            25    There is a lot of information.  We did not have the 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    ability to review that information.  This is the kind of 

             2    information that can be reviewed in the next go-around 

             3    which might be sooner than later.  I am sure we will 

             4    talk about that more as we move forward.  This was for 

             5    the Burbank Western Channel.  

             6         County Sanitation Districts of Los Angeles County 

             7    submitted a letter.  L.A. County wins the award for the 

             8    most new data submitted, 60 sites, 53,000 records, over 

             9    200,000 data points I received Friday morning.  I could 

            10    not review that data set.  

            11         The other comments that we received.  There is one 

            12    additional one.  They submitted new information on the 

            13    PV shelf in capping activities that are going on there.  

            14    This enforceable programs list, we set the bar high on 

            15    purpose, because we did not want this to be a safe 

            16    harbor so something did not happen.  So the waters that 

            17    are on that list, we think there is certainty that the 

            18    problems will be fixed.  For the PV shelf, they are 

            19    continuing the planning process.  That is what that new 

            20    information shows me.  It does not rise to the level of 

            21    actually implementing a fix for that problem, so we 

            22    recommend no change at this point.

            23         From Region 6 we received a correspondence from the 

            24    Regional Board talking about a reservoir called Tinemaha 

            25    and the concentrations of copper in its effluent.  It 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    was listed several years ago.  There is -- they 

             2    submitted data that they just received over the last 

             3    couple weeks.  Again, I don't have the report; I just 

             4    have the table of data.  I don't know anything about the 

             5    quality.  It is another circumstance where it is 

             6    difficult to review this listing.

             7         For Region 5, for the Turlock Irrigation District 

             8    they request that Harding Drain be removed from the 

             9    303(d) list because of a recent order of the State 

            10    Board.  It was order DWQ 2002-0016.  You remanded the 

            11    permit to the Turlock Irrigation District to review the 

            12    beneficial uses of that water body and come back with a 

            13    better proposal.  I think it is inappropriate to remove 

            14    this water at this point because that will second guess 

            15    the remand to the Regional Board.  This is a low 

            16    priority.  I know the Regional Board has higher 

            17    priorities that they're going to work on over the next 

            18    five years.  There will be time for the Regional Board 

            19    to get back on this, and it will be addressed during the 

            20    next listing cycle.  

            21         Request this morning from Region 5 staff to make 

            22    several changes to waters in Region 5 for Marsh Creek 

            23    and separating listings for Panoche Creek.  Again, I 

            24    just have several very brief statements about this.  I 

            25    don't know the circumstances of it.  These are all low 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    waters on their list.  I am sure they are not going to 

             2    get to it in the next five years.  We have time to fix 

             3    those along the way.  

             4         So at this point I don't recommend any changes to 

             5    the 303(d) list based on that.  

             6         Region 8.  We have two letters focused on the 

             7    Orange County coastline listing for trash.  The new 

             8    comment is related to our review of the information that 

             9    was submitted.  The enforceable program, if you will, 

            10    that is out there, which is the storm water permit.  

            11    Comment is that we approve the storm water permit and 

            12    then dismiss the storm water information.  

            13         This relates to the enforceable programs list.  We 

            14    set the bar quite high.  I think the county is making 

            15    fabulous progress in implementing this permit.  I also 

            16    think that these permits are the way that a TMDL will be 

            17    implemented.  I could not make a finding based on what I 

            18    have in the record that standards will ultimately be 

            19    achieved with an MEP-type of approach.  Hence, our 

            20    recommendation to list this on the 303(d) list.  

            21         Last comments, there is two, from staff member in 

            22    San Diego Region.  Regional Board staff do not agree 

            23    with listing.  Region 9 staff do not agree listing for 

            24    the Orange County coastline for trash.  I will modify 

            25    our staff report to say that.  They have several small 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    changes in the area extent of the listing, and I think 

             2    those are really quite so minor that I don't think we 

             3    need to change those.  Estimated area is a voluntary 

             4    field.  We do not have to submit it to EPA.  It is for 

             5    the information of the public to get the relative size 

             6    of these areas that are impacted.  And as the TMDL is 

             7    developed, it's almost a certainty that those areas will 

             8    change.  It is not something locked in concrete.  

             9         The last comment from Jimmy Smith at the Regional 

            10    Board relates to the way we developed our sediment 

            11    listing.  He suggests using conditions like toxicity and 

            12    benthic community analysis to list and then do studies 

            13    to identify the pollutant.  Do the TIEs first, if you 

            14    will, the toxicity identification evaluation.  

            15         Our approach has been to identify the pollutants 

            16    for sediments specifically.  We use the process that was 

            17    invented in the late '90s and used extensively during 

            18    the Bay Protection Program.  We worked extensively with 

            19    the staff from NOAA in developing our approach.  It was 

            20    quite defensible.  Continues to be quite defensible.  

            21    And it boils down to a policy call.  Do you want to do 

            22    the evaluation of these sites before the listings so we 

            23    can move right into the TMDL phase or list them and do 

            24    more studies along the way and take a long time to 

            25    develop the TMDLs.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         Our approach has been to get the information lined 

             2    up, list them and move as quickly as possible to 

             3    completion of those TMDLs.  

             4         That concludes my presentation.  I am sure you will 

             5    have questions now and maybe along the way.  My staff is 

             6    here and there is a few Regional Board staff here that 

             7    supported these -- that developed these recommendations 

             8    and we would be happy to answer any questions that you 

             9    have.

            10              CHAIRMAN BAGGETT:  I have a couple, maybe 

            11    worth commenting on before we start hearing from 

            12    everyone.  At least one I am particularly interested in.  

            13         One is the listing policy guidance that we're 

            14    working on.  Could you maybe for everyone else's 

            15    clarification give us an idea of the timeline of that 

            16    policy that is going to drive our next set of listings?  

            17              MR. C.J. WILSON:  Well, the Water Code calls 

            18    for the Board to prepare the policy by July 1st of '03  

            19    and for approval of that policy by January 1st of '04.  

            20    My staff are on track right now to develop the 

            21    documentation for that.  We have solicited feedback from 

            22    the environmental communities, the regulated community, 

            23    the PAG, the Regional Boards, USEPA.  We have a sense of 

            24    the scope and the general direction we need to go.  The 

            25    challenge now is to prepare a document by July, have it 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    out there in the streets in anticipation of a hearing 

             2    late summer, early fall.  

             3              CHAIRMAN BAGGETT:  I guess I would encourage, 

             4    although it is not the purpose of today's hearing, the 

             5    people to really get involved in that process because 

             6    that will, I think, put together -- make this process go 

             7    much smoother next time and certainly provide the 

             8    guidance.  I have an enforcement program list and that 

             9    is relevant today.  There have been quite a few comments 

            10    from a number of people about it.  It is something that 

            11    we have supported, that it should be a high bar.  I 

            12    think we put it pretty high.  But that it has to be a 

            13    program with some specific timeline that is enforceable, 

            14    not just a timeline, but an enforceable timeline, one. 

            15         Two, there has to be real dollars attached, not 

            16    maybe if the budget passes, we are going to get this 

            17    grant.  Those are the two main criteria.  The action to 

            18    give is going to be in our listing guidance, to make 

            19    that program tight, and I think it is probably safe -- 

            20    well, we hope it is safe to say.  We anticipate no 

            21    significant changes in this Board by the time that is 

            22    adopted except for the addition, hopefully, of one other 

            23    additional member.  

            24         So something we are all familiar with and 

            25    anticipate some constructive comments in that policy.  I 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    only have two other comments that I think people are 

             2    looking at today.  That is one, the listing policy.  

             3    Third is the monitoring list.  And I know there is a lot 

             4    of comments about the SWMP and budgets.  For one, the 

             5    budget is not done.  We have a proposed budget out 

             6    there, and if anybody here thinks they can anticipate 

             7    what is going to come out across the street, I would 

             8    love to hear it.  

             9         Two, the monitoring list was meant to be high 

            10    priority.  These are areas where we think we might have 

            11    problems.  There is certainly not enough evidence to go 

            12    through the time and money, for those of you who were 

            13    here this morning, as how much time and money it takes 

            14    to develop a TMDL from not just our staff time but the 

            15    discharger's point of view.  

            16         That is the intent of that list, to make sure we 

            17    are doing things that are real and have a significant 

            18    impact first and we will get to the other ones when we 

            19    get to them.  We can't do everything at once. 

            20         Do you have any comments, things you particularly 

            21    are interested in hearing? 

            22              MR. C.J. WILSON:  Thank you.

            23              CHAIRMAN BAGGETT:  With that, what we will do,

            24    we always start with one down, we will go with nine up.  

            25    Try to order the cards where we think people align 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    themselves by the region so we can have some -- while we 

             2    are thinking of one part of the state, we can kind of 

             3    keep on that track.  It is hard to jump from Mattole to 

             4    the New River back to Lake Tahoe and then go over to San 

             5    Francisco.  We try to keep it in some order.  

             6         For the first part I have Dave Smith, USEPA.  We 

             7    are going to limit to five minutes.  We've got volumes 

             8    of information.  I spent two days, Pete spent two days 

             9    in hearings last spring.  These are not issues -- and 

            10    Gary spent a lot of time reading documents reviewing.  

            11    So if you can keep your comments to the changes and try 

            12    to hit the key points.  We won't be shy about asking 

            13    questions.

            14            MR. D. SMITH:  I'll do that.  I am David Smith,  

            15    EPA Region 9.  I am the TMDL team leader.  And I will 

            16    keep it to five minutes or less.  

            17         I just handed you a crib sheet that I am using to 

            18    talk.  There are a few specific waters that EPA may need 

            19    to add to the list.  I wanted to give you a little 

            20    information about the ones we are looking at.  I am not 

            21    going to go over those individually today.  

            22         Most important thing that I want to note is that 

            23    after an extraordinary effort by the Regional Boards and 

            24    State Board staff we are nearly in agreement with the 

            25    state on this list.  We think it is ready for decision.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1    I particularly want to commend Craig and his staff for 

             2    an extraordinary effort.  California wins the award this 

             3    year for the largest record for a TMDL listing -- for a 

             4    listed decision by far in the country.  And it is really 

             5    an extraordinary effort.  I guess that is good.  

             6         At any rate, we are in agreement on at least 99.9 

             7    percent of the assessment.  Although there are a few 

             8    waters where we don't see the record the same way, we 

             9    want to extenuate the positive and encourage you to go 

            10    forward and make a decision today.  You do see the short 

            11    list of waters some for which we believe the record is 

            12    sufficient to support a listing and a few where we are 

            13    not sure.  There is enough in the record that suggests 

            14    to us that the listing may be required.  We are going to 

            15    have to do a little bit additional work to look at the 

            16    underlying record and find out the right story.  It is 

            17    possible that there are a couple of other waters that 

            18    are not on the short list that we'll also have to look 

            19    at based on the final record that is prepared and maybe 

            20    considering some of the stuff that recently came in to 

            21    you.  

            22         In general, the way we work this with states are we 

            23    give the state one more opportunity to provide so-called 

            24    good cause for not listing specific waters.  The state's 

            25    discretion whether you want to provide that additional 




                                                                         21
                              CAPITOL REPORTERS (916) 923-5447             

             1    analysis.  I have spent a lot of time looking at your 

             2    files here at the State Board, and we are generally very 

             3    comfortable with the decisions that are being made here 

             4    after being not that comfortable in the beginning.  

             5         So we feel it is important to proceed now and not 

             6    further delay this.  We are already four months late on 

             7    this list.  As you will see later, we have another list 

             8    coming up very soon.  It is time to turn to that, turn 

             9    to completion of this listing policy and look forward.  

            10         We agree with what I think Craig was saying is that 

            11    it is unrealistic to expect the State Board to consider 

            12    huge volumes of data submitted at the eleventh hour or 

            13    eleventh and a half hour in this case.  And it is 

            14    appropriate to consider that at the next listing cycle, 

            15    which will begin virtually immediately.  

            16         On a slightly different take, a big part of your 

            17    decision today is as part of this list you target the 

            18    waters for which you're developing TMDLs over the next 

            19    two years.  I want to emphasize how important that is.  

            20    In some ways that is the most important decision you are 

            21    making today.  It is a big list before; it is going to 

            22    be a big list after you decide it, even if you fine-tune 

            23    it.  But importantly, I think the state has done a more 

            24    thoughtful job of figuring out which TMDLs can be done, 

            25    taken to Regional Boards over the next two years.  And 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    we think that is a significant and important commitment 

             2    and those schedules do need to be met.  So we will be 

             3    looking to you to support that and urge your 

             4    counterparts at the Regional Boards to move forward in 

             5    accordance with those schedules.

             6         We are using that as the basis for the work 

             7    planning for the next two years in the TMDL program.  I 

             8    think in most, if not in all, the Regional Boards this 

             9    will work.  We just don't have room to depart from those 

            10    kind of schedules right after you folks have adopted 

            11    those schedules as part of your decision.  

            12         You talked a little bit about this dilemma that the 

            13    monitoring list provides in light of the uncertain 

            14    budget situation.  Perhaps it's obvious, but the 

            15    credibility of adopting a monitoring list would be in 

            16    question if you don't find a way to monitor them.  We 

            17    are already working at staff level to try to find a way 

            18    to earmark more money for monitoring, including 

            19    monitoring waters on this monitoring list as well as 

            20    some of the other kinds of monitoring that are also 

            21    important for other programmatic reasons.  We are aware 

            22    of the difficult situation that the state is in here.  

            23    But we really hope the state does find a way to 

            24    monitoring these waters pretty quickly and to show the 

            25    validity of that approach as a way to deal with 




                                                                         23
                              CAPITOL REPORTERS (916) 923-5447             

             1    uncertain situations.  

             2         We do believe, perhaps in contract with some of the 

             3    commenters, that the use of a monitoring list is 

             4    consistent with the federal requirements.  Use of 

             5    enforceable programs list is consistent with federal 

             6    requirements.  And we think the state has made judicious 

             7    use of it in this go-around.  We think the structure of 

             8    what you have before you is consistent with our 

             9    requirements.  

            10         Finally, there seems to be some confusion about 

            11    when the next list is due.  And I hate to be the bearer 

            12    of this news, but the Assistant Administrator for water 

            13    has decided that we are not going to revisit the 

            14    existing requirement that a list be submitted in April 

            15    of 2004.  And I really hate to be bearer of this news in 

            16    light of -- let's put it this way:  It is going to be a 

            17    challenge for us all.  

            18         We are already talking to your staff about options 

            19    for dealing with this extraordinary situation.  

            20    Hopefully, we can find a way to streamline this process.  

            21    I don't think we have a choice to not streamline it in 

            22    some way.  It's going to create a very awkward situation 

            23    in terms of how it fits with the listing policy.  We 

            24    don't expect anything to get decided today.  I just 

            25    wanted you be to aware of at least what I have been told 




                                                                         24
                              CAPITOL REPORTERS (916) 923-5447             

             1    by my headquarters counterpart is that we do need to do 

             2    this, to find a way to do it with the least cumulative 

             3    pain and hopefully in a way that can add some value.

             4              CHAIRMAN BAGGETT:  Well, whoever needs to know 

             5    this, I think until we have a policy developed I am not 

             6    comfortable spending the time doing a whole other list.  

             7    Whatever has to happen next April, can happen.  If we 

             8    are going to meet an April deadline we have to start in 

             9    two weeks.  We haven't even finished this one.  I am not 

            10    about to put our staff through that kind of work, and I 

            11    don't think my colleagues are either, when we are just 

            12    barely finishing this round or the public or the NGOs.  

            13    It takes all of everybody in this room a lot of time and 

            14    money to do this.   

            15              MR. D. SMITH:  I know.

            16              CHAIRMAN BAGGETT:  You can pass it on.  It's 

            17    going to be a while.  

            18              MR. D. SMITH:  Let's put it to you this way: 

            19    We've already started having discussions with Celeste 

            20    and staff about what options there are.  There is no 

            21    great option there.  

            22              CHAIRMAN BAGGETT:  Don't expect it by April of 

            23    2004.

            24              MR. D. SMITH:  Schedules are schedules, and we 

            25    know how those work.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              CHAIRMAN BAGGETT:  Maybe you can adjust your 

             2    workload is what I guess I am saying to Region 9.  You 

             3    might want to think about your workload at this point, 

             4    too.           

             5              MR. D. SMITH:  We also want to make the point 

             6    that we hope the state doesn't take lightly the idea of 

             7    expecting EPA to do this because from a policy 

             8    standpoint, political standpoint, we believe there is 

             9    some severe downsides to that.  And I am hopeful we can 

            10    find a way, perhaps by providing contractor assistance, 

            11    staffing assistance and things like that that we can 

            12    find a way to move through this in a somewhat 

            13    streamlined manner and either meet that deadline or get 

            14    very close to it without putting EPA completely in the 

            15    driver's seat on this.

            16              CHAIRMAN BAGGETT:  It takes our time, not just 

            17    staff time, it's Board time.  We've got hearings 

            18    scheduled for myself for the next nine months, a 

            19    staggering number.  We have NOI hearings.  It looks like 

            20    we have a number of those scheduled for Phase II storm 

            21    water.  We have a hundred days of hearings next year.

            22              MR. D. SMITH:  That would be full-time 

            23    hearings.  

            24              CHAIRMAN BAGGETT:  Yes.

            25              MR. D. SMITH:  I understand.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              CHAIRMAN BAGGETT:  It is not just that.  It is 

             2    our time and the priorities we've got.  I just don't 

             3    want anybody to leave here with some feeling that this 

             4    is easily worked out.

             5              MR. D. SMITH:  I doubt if anybody will go away 

             6    with that view.  The one thing I would say is several 

             7    states expressed concern about this and in a call we had 

             8    with the SWPCA the other day.  I don't know whether 

             9    SWPCA has done anything to try to talk to our more 

            10    senior management about it.  If you are going to do it, 

            11    do it quickly.  That is my only request.  

            12         I do want to add that this project that, I think, 

            13    we've all worked on in 2002 did add value in terms of 

            14    the quality of the list that is before you and the 

            15    degree of documentation supporting it.  So we hope you 

            16    go forward and adopt it and validate the good work that 

            17    was done by everybody involved.  

            18              CHAIRMAN BAGGETT:  Thank you.

            19              Let's start down south, then.  Jimmy Smith, 

            20    Region 9.  I think Richard Watson is Region 9.

            21    Region 9.  

            22              MR. J. SMITH:  Good afternoon, Chairman 

            23    Baggett and Members of the Board.  My name is Jimmy 

            24    Smith.  I am an environmental scientist down in San 

            25    Diego Regional Board.  For the past two years I have 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    been working to update our region's 303(d) list and 

             2    maybe in the next two years coming up.   

             3         The comments I present today pertain to two 

             4    contaminated sediment sites in San Diego Bay.  State 

             5    Board staff has proposed that these sites be listed for 

             6    individual chemicals that may or may not be the cause of 

             7    the impaired conditions.  

             8         Region 9 disagrees with this and feels we should 

             9    not list for chemicals suspected of causing a problem, 

            10    but should list for the observed condition of sediment  

            11    toxicities and degraded benthic communities.  The 

            12    evidence for these listings comes from the Bay 

            13    Protection Cleanup Program.  To merit listing these 

            14    sites demonstrated sediment toxicity, degraded benthic 

            15    communities and elevated chemical concentrations.  

            16         For the concentrations to be considered elevated 

            17    the chemicals had to be above a sediment quality 

            18    guideline, or SQG.  These SQGs are derived from national 

            19    percentile-based databases.  They were not intended as 

            20    regulatory criteria or standards.  They were not 

            21    intended as cleanup or remediation targets nor as 

            22    discharge attainment targets.  

            23         They were intended as informal, nonregulatory 

            24    guidelines for use in interpreting chemical data.  That 

            25    is what the Bay protection folks did.  They used these 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    guidelines to interpret chemical data and to target 

             2    sites for further assessment.  Therefore, to use 

             3    exceedance of these guidelines to place these chemicals 

             4    on a 303(d) list is not appropriate because it does not 

             5    provide conclusive evidence that these exceeding 

             6    chemicals are the cause of observed conditions.  

             7         Region 9's 20 plus years of cleaning sediments in 

             8    San Diego Bay leads us to believe that it is essential 

             9    to identify the causative agents before issuing cleanup.  

            10    At these sites it is probable that many pollutants are 

            11    causing contamination and there could be chemicals that 

            12    are below the guidelines but are still causing a danger 

            13    to the environment.  

            14         A toxicity identification evaluation should be the 

            15    first course of action to deduce which chemicals are 

            16    responsible, and until this is completed the listing 

            17    should not be for individual chemicals, but should be 

            18    for the impaired conditions. 

            19                     (Member Katz enters.)

            20              MR. J. SMITH:  To continue with the list as 

            21    currently drafted has a potential to waste resources 

            22    addressing a chemical that may not be the cause of the 

            23    problem and could delay the restoration of beneficial 

            24    uses because the actual cause of the problem has not 

            25    been addressed.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         I ask that you consider changing the listing for 

             2    San Diego Bay shoreline near Switzer Creek and San Diego 

             3    shoreline between Sampson and 28th Street to sediment 

             4    toxicity and benthic community effects.  This would be 

             5    consistent with other San Diego Bay sites that were 

             6    listed in 1998 and were based upon the same Bay 

             7    Protection data.  Furthermore, to list for impaired 

             8    conditions would be fully consistent with the Clean 

             9    Water Act as has been outlined in a memo from the State 

            10    Board office of Chief Counsel.  

            11         Thank you for hearing my testimony and for 

            12    considering this change.

            13              CHAIRMAN BAGGETT:  Have any questions?  

            14              MEMBER SILVA:  I guess of Craig.  Assuming -- 

            15    is there any issue for changing the way it is listed?  

            16              MR. C.J. WILSON:  The way we proposed the 

            17    listing this time around was we went after the -- if we 

            18    could find the pollutants in the water bodies, we went 

            19    after those because you have the greatest possibility of 

            20    developing a successful TMDL when you identify those 

            21    pollutants.  The approach we took, just like Jimmy said, 

            22    was to use these NOAA guidelines.  We worked with Ed 

            23    Long, who developed those guidelines, over a ten-year 

            24    period, used those guidelines correctly.  

            25         Jimmy said that the Bay Protection Program was just 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    to develop a list for further assessment.  Nothing could 

             2    be farther from the truth.  We went through an extensive 

             3    planning process to identify cleanup plans to address 

             4    these toxic hot spots.  Some of them aren't being 

             5    implemented, some of them are.  They are on the 

             6    enforceable program list.  I believe we've done an 

             7    adequate job with the science.  I think we found 

             8    chemicals.  There is a possibility of always finding 

             9    additional chemicals that cause this toxicity for the 

            10    benthic community.  I can't deny that.  But these values 

            11    that were used were used correctly.  I have a letter 

            12    from Ed Long in the record saying how we used them 

            13    correctly for the Bay Protection Program.  This process 

            14    is substantially the same as that, as far as listing and 

            15    planning for the cleanup.  

            16         So I think we've done an adequate job, and we have 

            17    a line on the chemicals we think cause the problem.  

            18              MEMBER SILVA:  It is a matter of going 

            19    specific versus general?

            20              MR. C.J. WILSON:  There was an example at one 

            21    of the Regional Boards where they listed for a 

            22    condition.  It's called eutrophic.  The Regional Board 

            23    got the TMDL and it was for phosphorous and nitrogen. 

            24    Caused a problem with that Regional Board because it was 

            25    something else.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         They are waiting for the State Board to act on this 

             2    list to straighten out that list, to focus on those 

             3    pollutants so they can finish that TMDL.  I want to 

             4    avoid those kind of problems.  That is the whole reason 

             5    for the proposal.

             6              MEMBER CARLTON:  Just as a follow-up, Craig.  

             7    The criteria that you are using, then, to list these 

             8    specific chemicals is a guidance criteria?

             9              MR. C.J. WILSON:  That's correct.

            10              MEMBER CARLTON:  As opposed to a water quality 

            11    objective or water standard.  Is that approach used 

            12    frequently throughout the listing process?

            13              MR. C.J. WILSON:  Yes, it is used by virtually 

            14    all of the Regional Boards.  There is a number of 

            15    narrative water quality objectives, things like no 

            16    toxics in toxic amounts or no bioaccumulation of toxic 

            17    to levels that will impact beneficial uses.  To 

            18    interrupt that we have gone out and tried to find the 

            19    best combination of guidelines to use.  For sediment 

            20    quality we insist on using these ERMs, if you will, or 

            21    PEls, which is a different kind of factor.  But it has 

            22    to be in association with toxicity or benthic community 

            23    impacts.  I don't contend that there is a problem with 

            24    the benthos or the toxicity.  It is just which of the 

            25    pollutants that we think are adding to that problem.  




                                                                         32
                              CAPITOL REPORTERS (916) 923-5447             

             1              MEMBER CARLTON:  Why do we not list for 

             2    toxicity then instead of the specific chemical?

             3              MR. C.J. WILSON:  We did not list for toxicity 

             4    because we thought we had the pollutants to focus on for 

             5    the TMDL.  

             6              MEMBER CARLTON:  And the Regional Board's 

             7    concerned that we may not.  

             8              MR. C.J. WILSON:  There is always that 

             9    possibility.  But for this kind of problem in sediments 

            10    if you get at those chemicals, you are going to catch a 

            11    lot more than just those chemicals.  

            12              MEMBER SILVA:  We can always add them in 

            13    April, too.  I didn't say what year.

            14              CHAIRMAN BAGGETT:  Larry McKenney, County of 

            15    Orange, and Mary Jane Foley, County of Orange.  In that 

            16    order?  

            17              MS. FOLEY:  Mr. Chairman, Board Members.  

            18    First I want to praise Craig for doing -- Craig Wilson 

            19    and his staff -- for doing such a great job and such a 

            20    great outreach with all of the people in my communities.  

            21    Really appreciated it.  

            22         We are here today from the County of Orange.  I am 

            23    just going to talk briefly about the study used to list 

            24    the beaches, now listing the coastline for all of our 

            25    beaches in Orange County.  And I am a little stunned 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    that the Southern California beaches were just listed 

             2    three weeks ago.  And I don't think many of the 

             3    communities understand it or even have taken the time to 

             4    analyze why they're listed.  

             5         When this happened, I was taken by surprise.  

             6    Having had a lot of intimate relationships with the L.A. 

             7    trash TMDL and want to know the story, why did it get 

             8    listed, where did it come from.  Found the study.  Spent 

             9    a lot of time talking to the director of the study.  And 

            10    this is how I think the study goes, and I don't think it 

            11    has enough validity to list all our beaches.  

            12         The director that oversaw the study said we wanted 

            13    to see if the coastal cleanup days are really giving an 

            14    accurate picture of what people were cleaning up.  And 

            15    so they decided to do a debris study.  And they took 

            16    certain areas of a beach.  I think it was -- I am going 

            17    to -- this may be not exactly correct, maybe 23 

            18    different locations.  Mapped them out like 25 yards.  

            19    Did a transect.  Picked up trash.  Sorted it in to the 

            20    kind of things that they found and took a five-gallon 

            21    bucket and sieved the trash and found these 

            22    preproduction pelletized plastic pellets that are used 

            23    to transport raw plastic.  98 percent of the debris 

            24    found was that.  

            25         Then they -- about a week later the Coastal Cleanup 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Day happened, and there was, like, 50 times less found.  

             2    Then they wanted to figure out, well, why was there such 

             3    a variability.  So they took Salt Creek where I live.  I 

             4    live on Salt Creek, and they took Sunset Beach, and they 

             5    did another comparison and the numbers were still very 

             6    varied.  And as far as I can tell, the whole listing 

             7    pretty much focuses around that study.  And in a time -- 

             8    it would be very detrimental to my county and to the 

             9    small businesses that exist along the coastline that has 

            10    this reputation now.  

            11         So we do have tremendous enforceable programs 

            12    available, well funded.  We are not a county that 

            13    litigates.  We really are dedicated to all these 

            14    programs.  And Mr. McKenney is going to expand on what 

            15    we are doing in the county, and I do think that we have 

            16    enough avenues to make this happen, to take care of this 

            17    problem.  If nothing else if you can just put it on the 

            18    monitoring list.

            19              CHAIRMAN BAGGETT:  Is this storm water that is 

            20    running off?

            21              MS. FOLEY:  They say it's air deposition, 

            22    urban runoff.  I don't know the other two things.  Larry 

            23    will have to tell you.  Boating, tourist actions on the 

            24    beach.  And I don't even think there is water quality 

            25    standards for the coastline.  I mean, I knew there 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    wasn't for sand.  The whole thing needs, I think, more 

             2    thoughtful approach to a very Draconian thing to list 40 

             3    miles of beaches in Orange County.  I would let Larry 

             4    tell you more specifically and thanks for the 

             5    opportunity of listening to me.  You know I am pretty 

             6    concerned about this.  

             7         Thank you.  

             8            MR. MCKENNEY:  Good afternoon.  I am Larry 

             9    McKenney from the County of Orange.  Thanks for the 

            10    opportunity to speak.  I echo Mary Jane's praise of your 

            11    staff.  They have done gargantuan labor on this.  There 

            12    are many issues that we worked with them very 

            13    productively on this, and I thank them for that and you 

            14    for that.  

            15            The one issue that we are still concerned about 

            16    is the trash listing.  I am going to talk a little bit 

            17    about why we think the enforceable programs list an 

            18    alternative if you believe that any listing action is 

            19    warranted, even though we don't think that the study 

            20    amounts to appropriate justification for listing.  

            21         You mentioned it is important or Craig mentioned it 

            22    is important that an enforceable program list 

            23    justification for the things that are actually being 

            24    done, not just studies.  We are doing things to address 

            25    trash in Orange County under our storm water program and 




                                                                         36
                              CAPITOL REPORTERS (916) 923-5447             

             1    under other programs to the tune of $62,000,000 this 

             2    year under our storm water program for the county and 

             3    the 34 cities in the flood control district in the 

             4    county to implement our storm water program.  

             5         The permit, as you know, requires to reduce 

             6    pollution to the maximum extent possible.  That includes 

             7    trash.  It permits us to have legal authority to 

             8    implement our water quality ordinance.  The ordinance 

             9    includes prohibition of putting trash in storm drains.  

            10    So to the extent that the trash that is making its way 

            11    to the ocean is coming from storm drains, it is illegal 

            12    now to put trash there.  In addition, the cities and 

            13    county and the state all have laws against littering in 

            14    the public places, in parks, anywhere.  And those 

            15    ordinances obviously are enforceable.  

            16         Also under the storm water program we have a number 

            17    of BMPs in which we investing very heavily.  I will just 

            18    list a few.  They are obviously relevant to trash and 

            19    which we are increasing year by year.  We are doing 

            20    increased street sweeping.  We are constructing catch 

            21    basins for new development.  We are adding inserts into 

            22    storm drains and maintaining the storm drains and storm 

            23    drain inserts better.  We are doing doing more 

            24    maintenance in our storm channels.  We constructing 

            25    debris booms and low flow diversion structures that 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    catch trash on many of our channels.  Most importantly 

             2    we have a major program aimed at education.  That is 

             3    important -- it is important to us to the tune of about 

             4    $800,000 a year right now in education, and it is 

             5    important for the trash issue because of the four 

             6    potential sources that are listed.  Only education is 

             7    really going to reach all of those sources.  There is 

             8    only so much the municipality can do directly about 

             9    sources like ship discharges or aerial deposition.  

            10         So it is a regional problem, and we are trying to 

            11    have a regional education program and we are investing 

            12    heavily in that.  Without admitting at this point that 

            13    the county is responsible for whatever trash may come 

            14    from aerial deposition or discharge from boats, I will 

            15    commit to you today that our storm water education 

            16    program will target all four of the potential sources 

            17    that are listed in the proposed listing, whether or not 

            18    there is any listing decision.  We will target those 

            19    sources.  We see trash as a problem.  We disagree that 

            20    it is a problem that warrants this type of listing 

            21    action right now, but it is something that we are going 

            22    to take action on whether or not we are the source of 

            23    the trash.     Finally, I want to mention timeline 

            24    because that was another element of the enforceable 

            25    program with a question.  I understand that the 




                                                                         38
                              CAPITOL REPORTERS (916) 923-5447             

             1    requirement for the timeline is that there be a high 

             2    likelihood of success of the program within a reasonable 

             3    time.  If we look at, for example, L.A. and the trash 

             4    TMDL, you might conclude that 14 years is an adequate 

             5    timeline to show results.  During that time you have 

             6    seven revisitations of the list, and if you are not 

             7    showing progress I suppose you can take a listing action 

             8    at that point.  We think there is a likelihood within a 

             9    reasonable time that we will show significant 

            10    improvement on trash in Orange County.  

            11         Thank you for your time.

            12              CHAIRMAN BAGGETT:  Thank you.  

            13         Any questions?

            14         Probably Craig.  

            15         I guess, one, I am not enamored of putting this on 

            16    an enforcement program.  I think it kind of flies in the 

            17    face of what, I think, we are trying to do with specific 

            18    timelines and committed dollars and something that will 

            19    actually deal with the issue. 

            20         I do have a question, why do we have another trash 

            21    TMDL?  

            22              MR. C.J. WILSON:  We had a number of requests 

            23    from people to list waters for trash.  The information 

            24    that was provided to us tended to be one or two 

            25    pictures, some beach cleanup data.  We went through all 




                                                                         39
                              CAPITOL REPORTERS (916) 923-5447             

             1    of those listings very carefully.  This particular 

             2    proposal was backed by probably the best scientific 

             3    study that I know of.  Maybe there's others.  It was 

             4    unequivocal, done by a good organization people respect 

             5    with good information.  

             6         It was very difficult for us to say it wasn't 

             7    representative of the coastline because of the way it 

             8    was developed.  Temporally it was done at one time.  

             9    It's probably not temporally representative.  But I have 

            10    nothing else to base it on.  We have a sense there is 

            11    trash coming down through some of the waters in the 

            12    region.  San Gabriel River, we have photographs from 

            13    that.  Santa Ana River, we have photographs from that.  

            14    Newport Bay, there is pictures of that.  So it is clear 

            15    it is coming down and potentially ending up on these 

            16    beaches, and that is where the recommendation came from.

            17              CHAIRMAN BAGGETT:  My concern, we can list 

            18    almost every river in the state for trash if we wanted 

            19    to.  You can list the Merced River a mile from my house 

            20    in the summer if you wanted to.  Yosemite Valley, you 

            21    should list.  There is a lot of trash in Yosemite 

            22    Valley.  I don't know.  

            23              MEMBER CARLTON:  Craig, one more question.  

            24    Mary Jane referenced some follow-up studies or surveys 

            25    that were done on the beaches which found a 




                                                                         40
                              CAPITOL REPORTERS (916) 923-5447             

             1    substantially lesser amount of trash.  

             2              MR. C.J. WILSON:  I am not familiar with the 

             3    follow-up study.  I am familiar with the published 

             4    work.  

             5              MEMBER CARLTON:  That is my question.  You 

             6    didn't receive those or review them or analyze those?

             7              MR. C.J. WILSON:  No.

             8              MEMBER CARLTON:  Thank you.  

             9              CHAIRMAN BAGGETT:  Jim Wells, we've got you 

            10    down here for eight and nine; is that accurate? 

            11         Region 6, okay.

            12              Nobody is here from seven.  

            13              MR. WELLS:  Region 5, I'm sorry.  

            14              CHAIRMAN BAGGETT:  We are up to Region 5, I'm 

            15    sorry.  

            16              MR. WELLS:  Chairman, Members, I am Jim Wells.  

            17    I am with a consultant firm called Exponet.  I am here 

            18    to represent Makhteshim-Agan of North America, 

            19    Incorporated, also known as the parent company 

            20    Makhteshim Chemical Works, Limited.  I will refer to 

            21    them as MANA from now on.  

            22         MANA is a pesticide manufacturer that holds 

            23    registration for both chlorpyrifos and diazinon.  MANA 

            24    is deeply committed to product stewardship and has 

            25    actively participated in the proceedings of this Board  




                                                                         41
                              CAPITOL REPORTERS (916) 923-5447             

             1    with Section 303(d) and impairment designation issues.  

             2    MANA has previously submitted comments on the 2002 

             3    revisions on both May 14th, 2002, and December 5, 2002.  

             4    Today we are submitting a brief letter that lends 

             5    further support to MANA's views.  

             6         As it has in its May and December letters, MANA  

             7    again explains that the data underlying the diazinon and 

             8    chlorpyriphos impairment designations proposed for the 

             9    Central Valley region are antiquated and inadequate.  

            10    Let me read you just one portion of the letter to 

            11    demonstrate our point, and I will be brief.  

            12         The Butte Slough impairment listing for diazinon 

            13    typifies this error.  It is based on just two years of 

            14    data taken six years apart.  The data is as follows:  

            15    Twenty-eight samples were taken in 1994.  The highest 

            16    diazinon detection was one microgram per liter.  Nine 

            17    samples were taken in 2000, and there was only one 

            18    exceedance.  That exceedance was measured at 0.82 

            19    micrograms per liters, an order of magnitude less than 

            20    the sample collected six years before, and, in fact, 

            21    only .002 micrograms per liter over the acute number 

            22    that CDFG have established as a trigger of concern, 

            23    acute trigger of concern.  

            24         The Central Valley Board report downplayed these 

            25    facts.  First, it reported only percentage of samples 




                                                                         42
                              CAPITOL REPORTERS (916) 923-5447             

             1    that exceeded the CDFG criteria, which is misleading, 

             2    given the small sample size.  Second, it characterized 

             3    two sets of measurements as one cumulative set despite 

             4    the fact that clusters of samples were taken six years 

             5    apart and the later data evidenced far lower diazinon 

             6    levels.  

             7         The practical results of this characterization and 

             8    others MANA has identified will be the imposition on 

             9    hundreds of growers and farmers of regulatory burdens 

            10    that cannot be justified.  In light of these 

            11    deficiencies MANA believes you should not approve the 

            12    proposed report, rather you should send it back to the 

            13    staff with directions to undertake further analysis 

            14    consistent with our comments, and MANA is fully prepared 

            15    to work with staff in this effort.  

            16         Thank you.  

            17              CHAIRMAN BAGGETT:  Thank you.  

            18         Bill Jennings on Region 5.  

            19              MR. JENNINGS:  Good afternoon, Chairman 

            20    Baggett, Board Members.  Bill Jennings representing 

            21    DeltaKeeper, California Sportfishing Protection 

            22    Alliance.  

            23              CHAIRMAN BAGGETT:  You avoided jury duty.  

            24              MR. JENNINGS:  Maybe.  

            25              MEMBER KATZ:  One day at a time.  




                                                                         43
                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. JENNINGS:  One day at a time.  

             2         I would like to express our appreciation for Craig 

             3    Wilson and his staff for the cheerful good humor and 

             4    helpful assistance throughout this process.  It's been 

             5    greatly appreciated.  We also appreciate staff 

             6    acceptance of most of our recommendations and their 

             7    incorporation into the update.  So I will briefly focus 

             8    our remaining -- on our remaining areas of disagreement.  

             9         I incorporate by reference our previous comments on 

            10    previous drafts and the comments of NRDC, Ocean 

            11    Conservancy, Heal the Bay and other CaliforniaKeepers.  

            12         First, certainly, we respectfully disagree with 

            13    your staff on invasive species, pollutant impairment in 

            14    the Delta.  We have extensively briefed the issue.  It 

            15    is basically our lawyers disagree with your lawyers, and 

            16    we will go from there.  

            17         Temperature.

            18              CHAIRMAN BAGGETT:  I guess on that, I can't 

            19    just let it go.  We talked about this last spring.  

            20    Bill, the real result of this is if you follow that 

            21    logic we should be listing Lake Davis for pike.  We 

            22    should be listing all Sierra streams for German brown 

            23    trout which is eating everything in the world.  And then 

            24    we have this bass floating around in the Delta which 

            25    Fish and Game introduced, actually.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         Where do we stop?  I guess that's the challenge I 

             2    feel.  I take just as much offense to squaw fish and the 

             3    bass on the Merced where I live because they are eating 

             4    all the native trout.  Should we try to list that?     

             5              MR. JENNINGS:  But certainly we have to stop 

             6    the continuing introduction of the --  

             7              CHAIRMAN BAGGETT:  It's illegal to continue to 

             8    introduce.  Fish and Game is dealing with --           

             9              MR. JENNINGS:  I think we need a regulatory 

            10    approach.  A voluntary approach is only going to take us 

            11    so far.  I think until we begin to address ballast 

            12    discharges --

            13              CHAIRMAN BAGGETT:  Fish and Game catches you 

            14    bringing a fish and putting a pike in Lake Davis they 

            15    can't -- I think there a lot of statutes out there.

            16              MR. JENNINGS:  If someone takes and brings 

            17    pike or somebody dumps an aquarium and they are caught 

            18    doing so.  

            19              CHAIRMAN BAGGETT:  Or ballast water.  

            20              MR. JENNINGS:  Or ballast water.  But we don't 

            21    have the regulatory process to ensure we are monitoring 

            22    and managing that as an adequate level of protection.  

            23         Temperature.  This is probably a standard issue.  I 

            24    think EPA agrees that Delta 5 is not protective, but 

            25    certainly we believe that temperature is probably one of 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    the most limiting factors in the Central Valley.  And 

             2    the Board has just refused, should I say I brought this 

             3    up before Mr. Carlton on many occasions, that we need to 

             4    begin to address this problem.  

             5              CHAIRMAN BAGGETT:  I think we are in the water 

             6    rights arena. 

             7              MR. JENNINGS:  And, third, PCBs in Smith 

             8    Canal, I think studies demonstrate that PCBs in the 

             9    canal are both toxic and bioavailable.  

            10         EC in the Deep Water Channel, I think the NPDES 

            11    monitoring data demonstrate that we have exceedances of 

            12    both the agricultural water goal and the drinking water 

            13    MCL.  I do have a question about EC in the South Delta. 

            14    If we bifurcated the Delta in the east and west, I am 

            15    not sure about whether Old River and Middle River falls 

            16    in the eastern or western section.  They are certainly 

            17    impaired by EC.  So I would -- I have concern as to 

            18    where that line was drawn.  I don't know where that line 

            19    was drawn, so I do raise that as a concern.  

            20         Certainly unknown toxicity in Putah Creek.  I think 

            21    Region 5 recommended it.  I think given the degree of 

            22    toxicity that multiple lines of evidence are not 

            23    necessary.  

            24         The monitoring list.  I certainly question the 

            25    justification for it in light of at least the governor's 




                                                                         46
                              CAPITOL REPORTERS (916) 923-5447             

             1    proposal to essentially eliminate water quality 

             2    monitoring by the Water Boards.  We shredded the 

             3    monitoring; it's going to have a huge impact in many 

             4    areas.  I think the TMDL completed list is simply bad 

             5    policy without justification and illegal.  There again  

             6    we have a disagreement.  And I think the enforcement 

             7    program is bad policy, illegal, and I think it lacks 

             8    support in the record.  

             9         With the exception of legacy pollutants, most 

            10    impairments exist because of a breakdown or a failure to 

            11    implement or enforce existing laws.  And frankly, I 

            12    don't see the mass conversions out there that suddenly 

            13    these laws are going to be brought to bear on many of 

            14    these problems.  With that --

            15              CHAIRMAN BAGGETT:  Did not -- we removed the 

            16    very programs you had some concerns about in the Delta 

            17    with the toxicity hot spots.  There was program but no 

            18    program.

            19              MR. JENNINGS:  I greatly appreciate that 

            20    removal.  

            21              CHAIRMAN BAGGETT:  We tried to limit where 

            22    there was, like I said, where there was funds and there 

            23    was a real enforceable time order, so we can avoid  

            24    duplication and the fact that the time order is complied 

            25    with and the money is spent, there shouldn't be in 12 or 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    18 months.  If there is, why go to a listing and all the 

             2    courts and hearings.  That is the intent.  I think we 

             3    did take out.  I know you had strong concerns.  

             4              MR. JENNINGS:  Certainly we are going to see 

             5    the new bay protection pesticide cleanup plans coming 

             6    down the road shortly.  They are going back to the 

             7    Regional Board for another take at it.  

             8         But anyway, thank you very, very, very much.  

             9              CHAIRMAN BAGGETT:  Question?

            10              MEMBER CARLTON:  Bill, question.  Your issue 

            11    on the East and West Delta, is that, in your concern,  

            12    whether Old River is caught --

            13              MR. JENNINGS:  Old and Middle River, I am 

            14    looking at the levels down there, and they've always 

            15    been, I think, high and considered to be impaired.  And 

            16    the western Delta is listed as impaired.  You have not 

            17    listed the eastern Delta as impaired, and I just don't 

            18    quite know where that line is and I've inquired of your 

            19    staff.  And I think the first person on your staff that 

            20    knows where the line is drawn is not here.

            21              CHAIRMAN BAGGETT:  Linda Sheehan followed by 

            22    Alan Candlish from U.S. Bureau.  

            23              MS. SHEEHAN:  Good afternoon.  My name is 

            24    Linda Sheehan, and I am the director of the Pacific 

            25    regional office of the Ocean Conservancy.  I would like 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    to echo again the amount of time, thanks for the amount 

             2    of time Craig and Laura, also, and the rest of the staff 

             3    put into this.  It's really a lot of work, and I do 

             4    appreciate the waters that were listed, particularly 

             5    those along the Central Coast which are of particular 

             6    importance to our organization.  

             7         We have submitted extensive written comments.  We 

             8    testified at the last hearing, so I won't go into all of 

             9    the things that you know that we have concerns about.  I 

            10    would like to just point out four things that came up 

            11    from the responses to comments that I would like to 

            12    emphasize, and those are in the letter I submitted on 

            13    the January draft.  I will just highlight those quickly.  

            14         First, with respect to the enforceable programs 

            15    listed and the TMDLs completed list, Dave made a point 

            16    that these are consistent with federal requirements.  

            17    And it is still our position that is inconsistent with 

            18    the federal law, with the statute itself.  So we could 

            19    disagree with a broad reading with the word 

            20    "requirements."  We would ask if you do decide that you 

            21    are going to go ahead with a separate list for these 

            22    particular waters that you actually flip the burden of 

            23    proof and put them -- keep them on the 303(d) list, but 

            24    put them low priority.  So everybody knows that they are 

            25    not going to get touched until April of 2004, but 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    probably longer than that.  That way you would ensure 

             2    that if these programs are with a certainty going to 

             3    work, as Craig described them, then we will know by then 

             4    whether they are actually going to work or not.  So I 

             5    ask that you consider seriously doing that before you 

             6    make your decision today.

             7         Second, we still are concerned about the monitoring 

             8    list.  Whether or not the governor's budget goes 

             9    forward, there is still a severe budget crisis and 

            10    monitoring list is somewhat suspect if there isn't money 

            11    for monitoring.  I disagree, and we said this before, 

            12    that the monitoring list should be the highest priority 

            13    for funding for monitoring.  I think the Regional Boards 

            14    should be able to decide what their highest priorities 

            15    are, and some of the waters on the monitoring list 

            16    aren't there because of data issues.  They are there 

            17    because of political or other concerns, and we are 

            18    concerned that the monitoring list should be used 

            19    appropriately, which means, I think, not at all.  I 

            20    don't think we need it.  If there is not enough data to 

            21    go on the -- it just gets redacted.  There can be fact 

            22    sheets to support that.  

            23         Multiple lists, as I pointed out in this letter, 

            24    create administrative nightmares.  Staff have enough to 

            25    do; they are overloaded.  We spent time going through 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    these lists and found at least seven, and there is 

             2    probably more, water body pollutant combinations that 

             3    were taken off the '98 list and showed up on the 

             4    monitoring list, but not the deleted list.  So if Joe 

             5    Smith was looking for a particular water body, and they 

             6    looked on the deleted list and said, "Oh, my creek is 

             7    not there, great, it's still on the list," they wouldn't 

             8    know that it had been taken off unless they went to the 

             9    312 water bodies on the monitoring list and perhaps the 

            10    other list as well.  It just creates a lot of headaches.  

            11    I don't think that we need to do that.  I think we 

            12    should just let the Regional Boards make their decision 

            13    on monitoring priorities.  

            14         Third, we still disagree with their list of 

            15    endangered species.  Their response to comments said 

            16    that they weren't going to list because they weren't 

            17    pollutants.  We hold the position, which I tried to 

            18    explain further in our letter, that under the Clean 

            19    Water Act there is a dichotomy between listing which 

            20    MD(1)(a) says if it's impaired and MD(1)(b)says that you 

            21    create the load if it is a pollutant.  We don't even 

            22    think that the pollutant issue gets to the table until 

            23    you actually develop the load and in that case we go to 

            24    the pollutant.  That seems to be a disagreement that we 

            25    can put off for now.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         We can still list those water bodies and meet the 

             2    five, eight, nine that are, in fact, impaired and there 

             3    wasn't a disagreement on that.  

             4         I just wanted to respond to Craig who said that 

             5    TMDLs aren't appropriate for substances that propagate.  

             6    We do that all the time for bacteria and pathogens here 

             7    in California.  Those are biological substances that are 

             8    invasive species.  They probably were invasive and came 

             9    over here in shellfish or ballast water or whatever 

            10    source they might have come in.  So I don't think that 

            11    is an accurate depiction.  I do think TMDLs are a 

            12    perfectly appropriate tool if we actually try to prevent  

            13    an invasive species from coming in.  We may be able to 

            14    let nature take its course if we stop reinoculating our 

            15    waters and maybe it will just fix that problem.  

            16         Finally, with respect to listing guidance we do ask 

            17    that you don't necessarily rely on the policy provisions 

            18    developed for the 2002 list.  We'd rather avoid some of 

            19    these positions becoming a baseline.  And Craig 

            20    mentioned in comments that the Regional Boards were 

            21    given the opportunity to review the draft listing 

            22    documents, and I am assuming they created some comments, 

            23    and I would very much appreciate that those were made 

            24    available on the website.  I think that would be helpful 

            25    with all of us going through the documents.  And that is 




                                                                         52
                              CAPITOL REPORTERS (916) 923-5447             

             1    it.  

             2              CHAIRMAN BAGGETT:  Thank you.  

             3              Alan Candlish and Steve Chedester.  

             4              MR. CANDLISH:  Chairman Baggett, Members of 

             5    the Board, my name is Al Candlish.  I am the regional 

             6    planning officer for the Bureau of Reclamation here in 

             7    Sacramento in the Mid Pacific region.  I want to thank 

             8    you for the opportunity to address the Board.          

             9         Bureau of Reclamation respectfully requests the 

            10    Board to not adopt at this time the proposed actions to 

            11    include the Delta Mendota Canal in the revisions to the 

            12    1998 Clean Water Act 303(d) listing for water quality in 

            13    limited segments.  This request is based upon two 

            14    factors.  Number one, Reclamation does not believe that 

            15    the Delta Mendota Canal is an appropriate water body for 

            16    listing under Section 303(d).  We are unclear about why 

            17    the inclusion of a water conveyance facility, such as 

            18    the Delta Mendota Canal, is considered eligible under 

            19    the Clean Water Act for listing.  

            20         Now if you further go along with the assumption 

            21    that the DMC is an appropriate water body for listing,  

            22    we question the assessment of the data used in the staff 

            23    report since it was based on grab sample data; that is, 

            24    single observations per month.  Whereas, operations of 

            25    hydrologic conditions can often affect water quality on 




                                                                         53
                              CAPITOL REPORTERS (916) 923-5447             

             1    a daily basis.  Furthermore, the state criterion is for 

             2    a four-day running average.  

             3         To fully understand the water quality conditions of 

             4    the Delta Mendota Canal Reclamation has recently 

             5    augmented its long-standing water quality monitoring 

             6    program for the Delta Mendota Canal to accurately 

             7    evaluate the water quality conditions of the canal.  The 

             8    latest water quality monitoring program provides the 

             9    necessary data to accurately assess water quality 

            10    conditions in the canal.  Reclamation will continue to 

            11    provide this data to the Board, to the Regional Board 

            12    and the State Board, in order to ensure the decision of 

            13    adding the canal to the Clean Water Act list is base 

            14    line, accurate assessment and complete data.  

            15         Therefore, consistent with the recommendations of 

            16    the USEPA's 2002 Integrated Water Quality Monitoring 

            17    Assessment Report Guidance Document, Section A, 

            18    Reclamation believes that the Delta Mendota Canal is a 

            19    water body with insufficient data which is better suited  

            20    to be listed in the State Water Resources Control 

            21    Board's monitoring list.  

            22         That concludes my comments.  We submitted similar 

            23    comments in a letter to the Board.  I do have staff here 

            24    if you have any questions.

            25              CHAIRMAN BAGGETT:  Are you proposing a listing 




                                                                         54
                              CAPITOL REPORTERS (916) 923-5447             

             1    for selenium is inappropriate?  

             2              MR. CLANDISH:  We don't believe there is 

             3    sufficient data.  

             4              CHAIRMAN BAGGETT:  Thank you.  

             5         Steve Chedester.  David Cory if necessary.  

             6              MR. CHEDESTER:  Good afternoon, Chairman 

             7    Baggett, Board Members.  My name is Steve CHEDESTER.  I 

             8    am the Executive Director of the San Joaquin River 

             9    Contractors Water Authority.  

            10         A little bit of history to give you a reason why we 

            11    are commenting.  The Exchange Contractors take water off 

            12    the Delta Mendota Canal, especially at the Mendota Pool. 

            13    We take about 840,000 acre-feet annually from the 

            14    Mendota Pool in the Delta Mendota Canal, so, therefore, 

            15    water quality is of great concern for us.  We also wheel 

            16    probably upwards of 200,000 acre-feet of wildlife water 

            17    to the local refuges.  So coming through our system is a 

            18    million acre-feet.  

            19         The Exchange Contractors commented on the proposed 

            20    TMDL 303(d) listing in prior sessions earlier last year.  

            21    However, in October we did not get the list at all.  

            22    Also, we didn't even -- were aware of the modifications 

            23    to the 303(d) list; that is listing the Delta Mendota 

            24    Canal for selenium as water quality impaired until the 

            25    day of my board meeting which was around, I think, the 




                                                                         55
                              CAPITOL REPORTERS (916) 923-5447             

             1    first week in December.  We had one day to respond  

             2    before the close of comments.  We had commented prior, 

             3    but we did not comment in October, so, therefore, I 

             4    guess is the way it worked, we weren't notified because 

             5    we didn't comment on the original list.  Because when we 

             6    read through it, the Delta Mendota Canal was not listed 

             7    for selenium in the lower part. 

             8         Taking a look at the data that I've reviewed, it 

             9    doesn't appear to me that in the last four years, three 

            10    years at least, the Delta Mendota Canal in the lower 

            11    section has violated five parts per billion standard.  

            12    If you go back four years, there is only two violations.  

            13    And it seems interesting how you would want to try to 

            14    list it currently, right now, as water quality impaired 

            15    for selenium with that kind of data.  Most of the time 

            16    when the violations occur, it occurs during times when 

            17    the Delta Mendota Canal is out of service or very low 

            18    flow.  And then when the water picks back up or there is 

            19    river flows, that is San Joaquin River flows or Kings 

            20    River flows, the water quality improves.  

            21         We would ask that the Board not list the Delta 

            22    Mendota Canal for selenium water quality impaired and 

            23    add it to the monitoring list as Al mentioned prior.  We 

            24    support all the comments.  They had implemented a very 

            25    extensive daily water quality monitoring program for 




                                                                         56
                              CAPITOL REPORTERS (916) 923-5447             

             1    selenium in the DMC.  Let that prove out, see what it 

             2    shows, and let the data drive the process as opposed to 

             3    the process drives the data.  

             4         With that, I will answer any questions.  

             5              CHAIRMAN BAGGETT:  Staff?  

             6         Dave, do you have any?  

             7              MR. CORY:  The same.  I will be very brief.   

             8    David Cory with the San Joaquin Exchange Contractors.  I 

             9    represent them on water quality issues.  I also farm in 

            10    the Exchange Contractors' area.  Just a couple things to 

            11    reiterate.  

            12         We are uncomfortable generally with listing a 

            13    manmade water conveyance system on the 303(d) list.  In 

            14    that if you extend out and look at listing all the 

            15    delivery canals in the state, what is that going to do 

            16    to water districts' ability to TMDLs in the natural 

            17    water bodies?  It could constrain our ability to respond 

            18    to TMDLs for salinity and selenium and boron and those 

            19    sorts of things on the natural river systems.  That is 

            20    one of our main concerns with the ultimate listing.  We 

            21    talked about the data, the Bureau, and Steve talked 

            22    about the data issues, that we don't think it supports 

            23    listing.  In fact, if you look at the last three years 

            24    of data you could actually make a case if it were 

            25    currently listed that under the criteria it would be a 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    candidate for delisting, given there have been no 

             2    occurrences or excursions in the last three years.  That 

             3    is an arguable point.

             4              CHAIRMAN BAGGETT:  Of the 92 samples it shows 

             5    19 of them were above the criteria, and those all 

             6    occurred in the first year.

             7              MR. CORY:  If you look back over the last 

             8    three years, there have been -- the last excursion over 

             9    the five-part number was on January 4th of 2000.  That 

            10    was the last time there was an excursion.  I think when 

            11    you look at this and you want to be very conservative in 

            12    the approach, if you look at putting it on the 

            13    monitoring list to continue to monitor it, I think it is 

            14    an excellent candidate for that, given the fact that the 

            15    Bureau has allocated funds to continuing an extensive 

            16    monitoring program that does daily composite samples.  

            17    They started it in July of 2001.  They have the money 

            18    allocated.  I think somewhere around $300,000 they've 

            19    allocated for this year's monitoring program, and that 

            20    will continue.

            21              CHAIRMAN BAGGETT:  So they have been doing 

            22    monitoring since -- in the last two years? 

            23              MR. CORY:  Yes.  They actually --

            24              CHAIRMAN BAGGETT:  Daily monitoring?

            25              MR. CORY:  In July they implemented a daily 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    monitoring program where they take composite samples, 

             2    and they show no exceedances to date on that.  That is 

             3    going to continue.  They've allocated the funds.  And it 

             4    really makes sense.  You talked earlier about having 

             5    resources for monitoring programs.  The resources have 

             6    been allocated.  The data to date supports not listing 

             7    it.  Placing it on the monitoring list is a conservative 

             8    approach and falls within your criteria for monitoring, 

             9    that there is the money actually spent, allocated in the 

            10    Bureau files to do that.  

            11         So I would close with that and appreciate your 

            12    hearing our comments on this matter, unless there are 

            13    any questions.  

            14              CHAIRMAN BAGGETT:  Thank you.  

            15              MEMBER CARLTON:  Question for staff.  I wonder 

            16    if staff or counsel could comment on the question of 

            17    listing the constructed waterways.  

            18              MR. C.J. WILSON:  It is my understanding that 

            19    the canal has beneficial uses designated in the Basin 

            20    Plan.

            21              MEMBER SILVA:  Was once a realigned river with 

            22    some of the large canals.  I think to me that is where, 

            23    in my mind, makes a difference, what the law does at 

            24    this point is up in the air.  I would have some trouble, 

            25    problem putting it on monitoring if that, in fact, is 




                                                                         59
                              CAPITOL REPORTERS (916) 923-5447             

             1    accurate, if they've been taking daily samples and we 

             2    list 19 out of 92, something happened.  

             3              MR. C.J. WILSON:  I can't speak to the last 

             4    three years' worth of data.  The Regional Board reviewed 

             5    four years' worth of data, I think.  

             6         Joe, can you help me? 

             7              CHAIRMAN BAGGETT:  This has been happening 

             8    since last December, that is significant.  

             9              MR. C.J. WILSON:  Four years' worth of data.  

            10    If the last three years show that, I would like to see 

            11    those data.  I can't respond to.  

            12              MR. KARKOSKI:  Joe Karkoski with the Central 

            13    Valley Regional Board.  The data we had available to us 

            14    -- I think the recent cutoff date was, most recent 

            15    cutoff date for submitting data was June.  So looking at 

            16    that data we had what you have before you, essentially 

            17    19 out of 92 which was sufficient to --

            18              CHAIRMAN BAGGETT:  They are saying these were 

            19    three years ago.  That is the timing issue.  It's been 

            20    getting -- we don't know the timing.  These were all 

            21    four years ago.  It was an event that happened a long 

            22    time ago.

            23              MR. KARKOSKI:  I don't think that is the case.  

            24    What is going on is there are drainage sumps that 

            25    discharge into the Delta Mendota Canal.  And I think 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    part of the argument is that that happens, you know, you 

             2    see your concentrations go up in the DMC and when there 

             3    is flow in the DMC it goes down.

             4              CHAIRMAN BAGGETT:  Grasslands, is this where 

             5    the Grasslands drains into?  

             6              MR. KARKOSKI:  It is above that.  But in order 

             7    to prevent the groundwater from building up behind the 

             8    DMC, there are drainage sumps that are now in selenium.  

             9    Those guys can probably say when that normally occurs.  

            10              UNIDENTIFIED AUDIENCE MEMBER:  Can we talk 

            11    about the data?

            12              CHAIRMAN BAGGETT:  No.  I would have no 

            13    problem since we are going to be back here within 12, 18 

            14    maybe 24 -- definitely within 24 months, maybe 12 

            15    months.  If there is, in fact, a daily monitoring 

            16    program funded, that would give us some solid, more 

            17    solid data.  I don't want to go to the waters of the  

            18    U.S. issue.  Then we don't have to go there.  We are 

            19    going to monitor; we made that decision.  At this point 

            20    we made the decision.  It is jurisdictional with the 

            21    monitoring.  

            22         The last for Region 5 and then take two from Region 

            23    2, and then we'll take a break before we get back from 

            24    Region 4 and Region 1.  

            25         Peter McGaw, the last for Region 5, Turlock 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Irrigation District.  

             2              MR. MCGAW:  Good afternoon.  I am Peter McGaw 

             3    from Archer Norris in Walnut Creek.  I am here on behalf 

             4    of the Turlock Irrigation District.  I am here to talk 

             5    specifically about the Harding Drain.  The Harding 

             6    Drain, which I know is near and dear to all of your 

             7    hearts following your decision in the City of Turlock 

             8    NPDES permit.  

             9         A little background.  What we are doing here is an 

            10    administrative process.  That means you have to make a 

            11    finding, have to be supported by evidence in the record.  

            12    You need to make a finding that there are beneficial 

            13    uses of these particular water bodies that are, in fact, 

            14    impaired.  With that in mind, let's look at what you did 

            15    in the City of Turlock permit appeal decision.  

            16         You overturned that permit.  You didn't remand it 

            17    back; you overturned it with direction to the Regional 

            18    Board to conduct further investigation and make further 

            19    finding because they in that permit had not supported 

            20    the record on beneficial uses for the Harding Drain.  

            21    What you specifically said in that decision was only one 

            22    beneficial use, agricultural drainage and irrigation, is 

            23    described in the permit as an existing use of the 

            24    Harding Drain.  

            25         The findings that concerned the uses of the San 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Joaquin River, and this is on the Tributary Rule issue, 

             2    the findings that concern the uses of the San Joaquin 

             3    River are insufficient to connect potential impacts of 

             4    the discharge to these beneficial uses.  What you found 

             5    in the City of Turlock appeal was that there were no 

             6    designated beneficial uses for the Harding Drain.  There 

             7    was insufficient evidence to establish the beneficial 

             8    uses of that water body.  If that is, in fact, the case, 

             9    then there are no beneficial uses yet which can be 

            10    deemed to be impaired.  And, therefore, you do not have 

            11    a basis for including the Harding Drain on the current 

            12    303(d) list.  

            13         For that reason we suggest you take it off the list 

            14    and deal with it in some other fashion.  I understand 

            15    the concern that you don't want to undermine the current 

            16    activities of the Regional Board in determining what 

            17    those beneficial uses are.  But taking this water body 

            18    off the list now is not going to undermine anything that 

            19    the Regional Board may do in the future.  They have to 

            20    go through the process anyway; they have to decide 

            21    whether there are beneficial uses for the Harding Drain 

            22    other than an ag drain.  

            23         At this point there are no designated, determined 

            24    beneficial uses for the Harding Drain.  It simply does 

            25    not belong on that list.  Why you -- you might ask, why 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    is this such a big issue?  It is a low priority TMDL; it 

             2    is not going to happen for a while.  We are all going to 

             3    be back here in April of 2004, as we now know, looking 

             4    at these issues again.  And let me suggest to you that 

             5    the concern is this:  Once a water body is on the list, 

             6    it is hard to get off the list.  Just the perfect 

             7    example, Harding Drain was improperly placed on this 

             8    list the last time around.  The rationale for having it 

             9    on the list this time is, well, it is there now; we'll  

            10    deal with it next time.

            11              CHAIRMAN BAGGETT:  It is already on the list.  

            12    You are asking us to take it off?

            13              MR. MCGAW:  I am asking you to take it off 

            14    this particular list because you don't have the evidence 

            15    in this particular --

            16              CHAIRMAN BAGGETT:  But it is already on the 

            17    list so we would have to delist it.  

            18              MR. MCGAW:  You would have to take it off the 

            19    list because of information that you now have and of 

            20    absence of evidence in this record.  This list has to 

            21    stand alone.  This list is this list, and it has to be 

            22    supported by the record and the findings that you make 

            23    in support of this list.  

            24         So the fact that it's been on a prior list really 

            25    is not the concern.  Is there evidence in this record to 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    support including this water body on this list?  And in 

             2    light of the lack of beneficial uses of the Harding 

             3    Drain, I suggest this is not appropriate.  

             4         Thank you very much.  

             5              CHAIRMAN BAGGETT:  Craig, you have a comment?  

             6              MR. C.J. WILSON:  This is one of the 

             7    difficulties in doing this list this time around.  We 

             8    brought forward a number of listings from the '98 list 

             9    without complete review.  We have this comment from many 

            10    people.  There is nothing in our record at this point to 

            11    substantiate what is being said here.  I'm going on what 

            12    this letter says.  

            13         I'm not sure if this was simply a permit that 

            14    wasn't as accurate as it could be or if the beneficial 

            15    use really doesn't exist in that water body.  I think 

            16    that the Basin Plan is fairly clear on the Tributary 

            17    Rule, and the way I read the order was that the permit 

            18    wasn't clear, it needed to be clarified.  And that is 

            19    the way I would approach this.  We don't have anything 

            20    new in our record to substantiate throwing it off the 

            21    list at this point.

            22              CHAIRMAN BAGGETT:  And this Board can go in 

            23    the Basin Plan.  We remanded for Regional Board to 

            24    consider that.  

            25              MR. LEVY:  Mr. Chairman, Members of the Board, 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    just to clarify.  The decision to list was made in 1998. 

             2    That decision was final.  Until there is some basis to 

             3    change it, this record does not have to support the 1998 

             4    listing.

             5              THE COURT REPORTER:  Your appearance for the 

             6    record.

             7              MR. LEVY:  Michael Levy, staff counsel.  

             8              MEMBER CARLTON:  Mr. Chairman, just for the 

             9    record, at this time I would like to make it clear that 

            10    because of my prior involvement in Central Valley Board, 

            11    I will be recusing myself from decisions of the Board on 

            12    the Region 5 list even though I have some questions of 

            13    curiosity.  

            14              CHAIRMAN BAGGETT:  Thank you.  

            15         We have no legal authority to amend that Basin Plan 

            16    which is what we remanded it back to be done.  So I 

            17    disagree with counsel for Turlock; that is what we did 

            18    in that order.  I sat through it.  My name is on it, and 

            19    I think Pete's and Richard's.  That is what we remanded, 

            20    for them to look at that.  We can't do that.  Until they 

            21    change it, if they change that back, then I think it can 

            22    come back in a year or two, bring the data.  

            23         Let's do two more and then we'll take a break. 

            24    There are only two from Region 6, San Francisco Bay 

            25    area, that I could find in here.  WaterKeepers of 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Northern California, Shana Lazerow and then we have San 

             2    Francisco BayKeeper.  

             3              MS. LAZEROW:  Good afternoon.  My name is 

             4    Shana Lazerow, and you had it just right.  I am the 

             5    staff attorney at WaterKeepers of Northern California.  

             6    I am here to make some general comments on behalf of the 

             7    WaterKeepers organization and then some specific 

             8    comments on behalf of San Francisco BayKeeper.  You have 

             9    heard a lot about the three alternative lists, and so 

            10    I'm not going to bore you too much about it.  But I do 

            11    want to talk about the monitoring list, specifically 

            12    because I am very concerned about the fact that you have 

            13    removed San Francisco Bay listing from being listed on 

            14    the 303(d) list for copper and zinc, and put it on the 

            15    monitoring list.  

            16         We have no problem with there being a monitoring 

            17    list if you specifically want to focus extra attention 

            18    on specific waterways as you want more data about them.  

            19    Do that in addition to the 303(d) list because there is 

            20    no basis for delisting San Francisco Bay.  The principle 

            21    that you would have this separate monitoring list sort 

            22    of instead of the 303(d) list completely contradicts the 

            23    Clean Water Act.  There is no room in the act there.  I 

            24    can see you have heard this argument before.

            25              CHAIRMAN BAGGETT:  We disagree.  We are trying 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    to encourage programs, like the Bureau stepped up to the 

             2    plate.  That's what we would like to see, is parties 

             3    stepping up to the plate, running a monitoring program  

             4    like they have done down there, the Delta Mendota.  That 

             5    is a case in point, where you don't ever have enough 

             6    data.  I think we are updating a lot of this.  

             7    Dischargers, I know, are putting a lot of money into a 

             8    lot of monitoring.  

             9              MS. LAZEROW:  I think that is fine in addition 

            10    to this process, but it can't substitute for -- the 

            11    regulated community cannot become the regulator.  That 

            12    is your job, not theirs.  As part of the delisting of 

            13    San Francisco Bay goes, I know there has been a process 

            14    set up specifically to assess that.  And to cut that off 

            15    right now when it isn't completed, it's not even close  

            16    to completed, is to gut the whole process, and I think 

            17    it is truly counterproductive.  

            18         I would also like to say that putting, what, 

            19    something like eight waterways on the monitoring list 

            20    for PCBs is a huge mistake and those also should go on 

            21    the 303(d) list.  

            22         Thank you.  

            23              CHAIRMAN BAGGETT:  Thank you.  

            24              MS. LAZEROW:  Any questions?  

            25              CHAIRMAN BAGGETT:  Thank you.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MS. CHOKSI:  I am Sejal Choksi.  I am here 

             2    with the San Francisco BayKeeper.  And you probably 

             3    heard these arguments before, too, but I am going to 

             4    reiterate some of them.  

             5         We greatly appreciate the Board's efforts and use 

             6    of the '98 list.  I know that was in question.  But San 

             7    Francisco BayKeepers is specifically opposed to the 

             8    enforceable program list.  This proposed list is illegal 

             9    because it violates the requirements of the Clean Water 

            10    Act.  It is also bad policy because it basically allows 

            11    the state to delay water quality protection under the 

            12    guise of an enforcement action.  

            13         The Clean Water Act does not authorize any 

            14    alternative to the 303(d) list process.  If a water body 

            15    is impaired, it must be placed on a 303 list; there is 

            16    no question you can have an additional list, but if it 

            17    is impaired it should be placed on a 303(d) list.  A 

            18    clear example of how the enforcement fails for  storm 

            19    water quality is in the case of Castro Cove.  

            20         The state improperly delisted Castro Cove last 

            21    month and placed it on an enforceable program list 

            22    because it's designated as a toxic hot spot.  This 

            23    program is not a viable method for meeting water quality 

            24    standards.  It lacks, as Chairman Baggett mentioned 

            25    earlier, timetables, benchmarks and funding.  It also 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    fails to reevaluate the waste discharge requirements as 

             2    required by the Bay Protection Toxic Hot Spots Cleanup 

             3    Plan.  The toxics hot spots program is not a viable 

             4    alternative.  And even if it were, this state is still 

             5    required by law under the Clean Water Act to place all 

             6    impaired waters on 303(d) list.  

             7         So, therefore, San Francisco BayKeeper asks that 

             8    Castro Cove along with Peyton Slough and Steve Marsh all 

             9    be placed on the 303(d) list.  

            10         Thank you.  

            11              CHAIRMAN BAGGETT:  Thank you.  Let's take a 

            12    break and we will come back and maybe talk about Castro 

            13    Cove, take about 10 minutes.

            14                         (Break taken.)

            15              CHAIRMAN BAGGETT:  Let's go back.  It would 

            16    nice to get out of here before dinner.  

            17         Let's start out with the City of Los Angeles, 

            18    Department of Water and Power, Julie Conboy, next one.  

            19    How about Vicki Conway.  Are you ready?  

            20              MS. CONWAY:  Hi, I'm Vicki Conway from Los 

            21    Angeles County Sanitation District, and I will be very 

            22    brief.  We don't have a presentation, which you will be 

            23    happy to hear.  

            24              CHAIRMAN BAGGETT:  We'd like a copy of yours 

            25    this morning if you've got it.  You have a CD, we can 




                                                                         70
                              CAPITOL REPORTERS (916) 923-5447             

             1    make a copy of it.

             2              MS. CONWAY:  Yes, I can mail a copy, but I did 

             3    leave hard copies.  

             4         We did submit written comments to the Board on 

             5    January 30th.  I'm actually here to address another 

             6    issue regarding the chloride TMDL workshop from this 

             7    morning.  The district requests the Reaches 5 and 6 of 

             8    the Santa Clara River be delisted from the 2002 303(d) 

             9    list for chloride.  As the basis for this, it is highly 

            10    questioinable and there is not evidence that an actual 

            11    physical impairment of the upstream use.  We recommend 

            12    that these reaches be added to the monitoring list.  

            13              CHAIRMAN BAGGETT:  After all we did this 

            14    morning.  

            15              MS. CONWAY:  We have a recommendation that I 

            16    think can be a win-win situation here.  Basically, we 

            17    request that Reaches 5 and 6 be added to the monitoring 

            18    list while the objective is reevaluated.  And once the 

            19    objective has been reevaluated, we would recommend that 

            20    another assessment be made of the impairment 

            21    determination.  

            22         The districts will continue to do the studies and 

            23    work in coordination with the Regional Board as 

            24    committed by Mr. Stale this morning, and also we would 

            25    like to point out that if you were to delist this it 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    would eliminate concerns over the timing with the 

             2    consent decree because we would no longer be driven by a 

             3    deadline to get this work done.  

             4              CHAIRMAN BAGGETT:  And you suspect that Region 

             5    9 would go along with this delisting?  I suspect they 

             6    won't.  

             7              MS. CONWAY:  It would basically resolve the 

             8    issue on consent decree.  

             9              CHAIRMAN BAGGETT:  I understand.

            10              MS. CONWAY:  This is different than the other 

            11    '98 listings as the State Board last time delisted this 

            12    for similar reasons over the objectives and 

            13    inconsistencies.  

            14              CHAIRMAN BAGGETT:  I guess my suggestion would 

            15    be since we already spent an hour and a half on this 

            16    morning, I guess I would propose that we will back here 

            17    in less than two years.  If the monitoring commitment is 

            18    there to do this kind of monitoring and do this, you can 

            19    come back then and we will have the data and we can have 

            20    something defensible to delist it with.  I don't know 

            21    how we can -- this is a slippery slope.  

            22         If we start doing this, as I think has been pointed 

            23    out by more than one speaker today and more than one 

            24    written comment, this is exactly what they are -- the 

            25    environmental community is concerned about, and I would 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    share that concern.  

             2              MS. CONWAY:  Thank you for the time.

             3              MEMBER SILVA:  It was good comic relief.  Good 

             4    try.  

             5              MS. CONWAY:  You realize we don't have two 

             6    years, because we are going down a TMDL that will be 

             7    established in just a few months here.  And that is --

             8              CHAIRMAN BAGGETT:  There will be no 

             9    implementation plans.  

            10              MEMBER KATZ:  You can sue anyhow.  

            11              MS. CONWAY:  Thank you.  

            12              CHAIRMAN BAGGETT:  Now the L.A. DWP.  Is Julie 

            13    here?  

            14              MS. CONBOY:  Good afternoon.  My name is Julie 

            15    Conboy, and I am a deputy city attorney in the City of 

            16    Los Angeles.  I am only here for the Department of Water 

            17    and Power, not the L.A. River.   

            18         First of all --

            19              MEMBER KATZ:  Your office is suing us?

            20              MS. CONBOY:  Another part of it.  

            21              MEMBER KATZ:  City is suing for trash and 

            22    storm water and all those other pollutant things that 

            23    you don't think are a problem.  

            24              MS. CONBOY:  In my office we are concerned   

            25    about pure, safe water.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MEMBER KATZ:  Which is why City Attorney's 

             2    office is suing us on storm water and trash.  

             3              MS. CONBOY:  The City Attorney who is 

             4    representing other clients within the city.  

             5              MEMBER KATZ:  No, the City of Los Angeles.   

             6              MS. CONBOY:  Point well taken.  But here we 

             7    could avoid ever suing you on this issue altogether  

             8    because it is about time and money as Mr. Baggett was 

             9    saying at the beginning of the meeting.  

            10         I would like to, first of all, commend the Lahontan 

            11    staff for advocating taking Tinemaha Reservoir off the 

            12    list.  And I know that they received the data from DWP 

            13    back in November or December, and if I could just quote 

            14    from an E-mail of Chuck Curtis, the TMDL manager of 

            15    Lahontan.

            16         He says the data indicates that dissolved copper is 

            17    not detectable in the water body.  Therefore, water 

            18    quality objective, as defined by California Toxics Rule, 

            19    is not being violated and there is no impairment of 

            20    aquatic life and beneficial uses due to copper toxicity 

            21    in Tinemaha Reservoir.  

            22         So we are in agreement with Lahontan on that.  We 

            23    would urge this Board to take that off of the 303(d) 

            24    list.  As far as Hawiee Reservoir goes, and Mr. Bagget 

            25    has heard this plea many times, it has been listed for 




                                                                         74
                              CAPITOL REPORTERS (916) 923-5447             

             1    impairment due to copper sulfate, a drinking water 

             2    chemical that Los Angeles must add to comply with the 

             3    Department of Health Services permit for safe drinking 

             4    water.  

             5         With California's dwindling water, it is coming 

             6    from the Colorado River and other sources, cities need 

             7    to rely on the water rights.  And Los Angeles has legal 

             8    rights to take water from the Owens Valley.  That is 

             9    brought into Hawiee Reservoir, and it must be treated 

            10    before algae is allowed to grow on there and add toxics 

            11    to the water which have been shown to be dangerous to 

            12    the people.  

            13         The best management practices in the water industry 

            14    are to use copper sulfate on an as-needed basis to treat 

            15    these algae.  This management practice is what the 

            16    Lahontan Board and this Board is seeking to put a 

            17    maximum daily load on by leaving Hawiee on the 303(d) 

            18    list.  Los Angeles already constantly monitors this 

            19    water and gives this information to the local county 

            20    agricultural board as well the Department of Health 

            21    Services.  And at the last time that we were here, Mr. 

            22    Baggett did make comparison to adding drinking water 

            23    chemicals to a golf course and keeping that water blue 

            24    and the importance of adding it to a drinking water  

            25    reservoir.  And you made the distinction that, one, it 




                                                                         75
                              CAPITOL REPORTERS (916) 923-5447             

             1    is very important to societal needs.  We have done 

             2    everything we can to comply with the Department of 

             3    Health Services' mandates that this water is kept safe 

             4    as well as to comply with the State Board's 

             5    jurisdiction.  

             6         However, at this point there is no evidence that 

             7    fishing is impaired, and that was the original reason 

             8    that this water was placed on the list back in the '90s.  

             9    And Los Angeles needs to do something to protect its 

            10    ratepayers and the people who drink the water.  

            11         Lastly, we have gone into this several times and we 

            12    anticipate that we will have to go into it in the 

            13    future, the water of the United States issue of Hawiee  

            14    Reservoir.  You have our papers.  You know that we dug a 

            15    hole in the ground and put the water there to retain it.  

            16    But the legal fiction of delaying whether this is a 

            17    water of the United States for a hearing or workshop 

            18    sometime later in the spring doesn't resolve the issue 

            19    as to whether this is within your jurisdiction.  

            20         Today you are acting as an agent of the federal 

            21    government and whether you put a water body on a list 

            22    that you send to the EPA and say this is impaired water 

            23    body of the United States needs to mean something.  It 

            24    means something if it really is a water of the United 

            25    States, if it meets the legal definition that you 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    understand it to be as well as what the courts will 

             2    understand it to be.

             3         This jurisdiction needs to come before everything.  

             4    When I was a prosecutor for the City of Los Angeles, you 

             5    can prove that someone was drunk, you can prove that he 

             6    was driving.  But if he wasn't in the City of Los 

             7    Angeles, someone else --

             8              CHAIRMAN BAGGETT:  Or we can ignore it and 

             9    just list it.  I think we can make that decision de 

            10    facto. 

            11              MS. CONBOY:  Well, when you're listing it, you 

            12    are saying this is a water of the United States.  In 

            13    saying that means that you should stand behind that.   

            14         Unless there are any questions, thank you.  

            15              MR. LEVY:  Mr. Chairman, Members of the Board, 

            16    Michael Levy, Senior Staff Counsel.  Just to clarify.  

            17    Listing a water does not necessarily imply that it is a 

            18    water of the United States.  You must list all impaired 

            19    waters of the U.S.  However, if you list waters of this 

            20    state that are not waters of the U.S. at all, there is 

            21    nothing in state or federal law that prohibits you from 

            22    doing so.

            23             CHAIRMAN BAGGETT:  That is not really an issue 

            24    before us, anyway.  

            25             MR. LEVY:  That's right.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1             CHAIRMAN BAGGETT:  I think we talked about this 

             2    at length before.  I thought we resolved that.  We will 

             3    leave that as to one follow-up at the end.  Just wait 

             4    for the end.  We have a lot of people.  We can get 

             5    through some of these other ones.  That and Castro Cove, 

             6    we will come back to that, and the trash.  We have three 

             7    of them so far to come back to.  And selenium, the 

             8    Mendota, we worked that one out.  We agreed to put that 

             9    on monitoring.  

            10         Anjali, and then Leslie Mintz.  

            11              MS. JAISWAL:  Good afternoon, Members of the 

            12    Board.  I am Anjali Jaiswal, project attorney with NRDC.  

            13    NRDC, we support the state's use of the 1998 list, as we 

            14    have said before.  And we really support the State 

            15    Board's effort to make a defensible list by using 

            16    credible science and credible studies to list impaired 

            17    waters, including Southern California beaches for trash, 

            18    which all Californians know that the coastal economy 

            19    benefits from having cleaner coastal waters.  

            20         We have a major concern with the listing process, 

            21    not only as it pertains to this list, but for the future 

            22    eminent list that is coming up and for the eminent 

            23    guidelines, the listing policy that the State Board is 

            24    going to issue.  We are particularly concerned about the 

            25    alternative enforceable programs list.  I am not going 




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             1    to repeat what Linda said, but I am going to add a new 

             2    analysis to what she said.  

             3         All of the 49 water segments that are on the 

             4    alternative enforceable program list were on the 1998 

             5    list.  They remain impaired today.  These waters should 

             6    be placed on the 303(d) list.  They should be kept on 

             7    the 303(d) list and the State Board should use the 

             8    flexibility that it's given by making these waters a low 

             9    priority.  

            10         Also, and then if the promises materialize, if 

            11    these waters actually meet water quality standards, then 

            12    they can be taken off the 303(d) list.  We oppose the 

            13    alternative enforceable programs list there because 

            14    there are no assurances because there is no 

            15    accountability.  Yes, the State Board has set a bar as 

            16    far as what they expect dischargers to meet or how they 

            17    want them to fulfill these promises.  But if you look at 

            18    these promises, they are hollow.  For example, in Los 

            19    Angeles we have the county sanitation districts saying 

            20    by June of this year there are 31 water segments in Los 

            21    Angeles that are on the alternative enforceable programs 

            22    list, that by June of this year they will be meeting 

            23    water quality standards.  You look at their promises; it 

            24    says that they are pursuing additional nitrification and 

            25    denitrification facilities, that they expect these 




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             1    facilities to reduce pollutants.  

             2         Where is the accountability?  Also, in the same 

             3    point, it addresses point sources.  What about nonpoint 

             4    sources?  The promises are also hollow when they say it 

             5    is probable that 95 percent of the pollutants will be 

             6    decreased.  What about the other 5 percent?  With that 

             7    other 5 percent, does that mean that water quality 

             8    standards will be attained?  The whole analysis for 

             9    these water bodies is based on the Los Angeles River, 

            10    and then it is applied to the San Gabriel River.  

            11    However, the San Gabriel River doesn't have its own 

            12    analysis.  So I ask where is the accountability?  Yes, 

            13    the State Board has set a bar, but the bar is not high 

            14    enough.  

            15         Another example, which I know you will be 

            16    discussing later, is the case of Castro Cove.  In that 

            17    case Chevron and Texaco wrote the State Board a letter 

            18    last fall saying we are going to put a bunch of money in 

            19    this program and we have a plan.  But as of yet, as far 

            20    as I know, the plan has not been implemented.  They say 

            21    that Castro Cove will be meeting water quality standards 

            22    by next December when the plan hasn't even been 

            23    implemented.  And more importantly, this letter is an 

            24    indication of how there is abuse of this list.  This 

            25    letter that was submitted by Chevron/Texaco last fall is 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    enough to -- suffices as an enforceable program?  And so 

             2    I ask the State Board to be wary of the abuses of the 

             3    enforceable program list in particular and monitoring 

             4    list.  

             5         There is no evidence in the record for many of 

             6    these waters to support the State Board's assumption 

             7    that these alternative enforceable programs will 

             8    actually work to meet water quality standards, let alone 

             9    meet the substantial evidence standards that is required 

            10    by law.  As you know, the environmental community, we 

            11    believe that the alternative enforceable program is 

            12    illegal, and it doesn't -- that it does not comport with 

            13    303(d).  It goes well beyond the 301 programs.  

            14         Also, the reliance of State Board is saying, well, 

            15    look, we are just doing what EPA told us, we are 

            16    following EPA guidance.  I ask you to revisit EPA's  

            17    guidance.  EPA's guidance says that for waters to be 

            18    listed on alternative enforceable programs list that 

            19    there needs to be specifics.  They need timetables.  

            20    They need monitoring.  They need benchmarks.  State 

            21    Board recognizes -- I don't think a letter from 

            22    Chevron/Texaco qualifies.  Also other programs that have 

            23    been used for years that still are not cleaning up the 

            24    waters.  

            25         As you know, the alternative enforceable programs 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    list effectively further derails the TMDL program that 

             2    this State Board is behind.  That these TMDLs were due 

             3    over 20 years ago.  Importantly, this -- if this is 

             4    hurried -- I appreciate the State Board's three drafts 

             5    and all the hearings that we have had on it.  But in the 

             6    ongoing process to set this kind of precedence without 

             7    thinking of the impact, this is not the right time to 

             8    set a precedent for an alternative enforceable program 

             9    list.  

            10         I also would like to join Linda's comments on the 

            11    monitoring list.  There are several waters on that 

            12    monitoring list that there is sufficient evidence of.  

            13    And as you heard earlier today in the example of how 

            14    this list is being used, pleased by dischargers to abuse 

            15    this list further, even today in the eleventh hour.  But

            16    an excellent example is the PCB, impaired waters.  There 

            17    has been evidence submitted by NRDC in the form of 

            18    several studies.  We also submitted a letter by a 

            19    doctor, a medical doctor, noting the health effects.  So 

            20    it is unclear how the State Board can say there is no 

            21    information on the effects of PCB and the links to water 

            22    quality in the administrative record when we have 

            23    submitted this evidence ourselves.  

            24         There are lots of other arguments that you can 

            25    refer to in our previous comment letter as to PCBs.    




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                              CAPITOL REPORTERS (916) 923-5447             

             1         Finally, general comment.  This adds to Linda's 

             2    comments as well on the listing process and the listing 

             3    policy that is being developed.  Our concerns have not 

             4    fully been addressed.  

             5              CHAIRMAN BAGGETT:  It is not even a draft yet.

             6              MS. JAISWAL:  In the drafting process, we just 

             7    -- we hope and we hope that this State Board will 

             8    consider all of your comments in drafting the list.  And 

             9    we also join on the request for the Regional Boards 

            10    comments.  

            11         Thank you.  

            12              CHAIRMAN BAGGETT:  Linda Mintz.

            13              MS. MINTZ:  Good afternoon, Linda Mintz, 

            14    attorney for Heal the Bay.  I am not familiar with the 

            15    Orange County Trash beaches TMDL, but I would like to 

            16    register support for the State Board listing for these 

            17    beaches, largely because Heal the Bay does have 

            18    familiarity with SCCWRP.  

            19              CHAIRMAN BAGGETT:  Good science.  

            20              MS. MINTZ:  SCCWRP is very credible.  It is 

            21    extremely reputable, and I think that studies by them 

            22    should be highly regarded.  We also administer Coastal 

            23    Cleanup Day in L.A. County.  And although we don't 

            24    administer it in Orange County, I can tell you from 

            25    personal experience that the trash accounted for at 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Coastal Cleanup Day is usually much less than what is 

             2    actually present on the beach.  So you can factor that 

             3    into your analysis as well.  

             4         I echo everything Linda and Anjali had to say.    

             5         Chairman Baggett, I just wanted to note that if one 

             6    of your objectives is to step up participation by 

             7    dischargers and the agencies in terms of paying for 

             8    monitoring, it seems to me that that objective would be 

             9    better served by having waters remain on the 303(d) list 

            10    and providing more incentive for them to pay for 

            11    monitoring to get them off the list.  

            12         We do also want to acknowledge that staff has 

            13    worked very hard on this and we are in support of 

            14    several of the listings.  And ironically, I had actually 

            15    come here today to ask about a very thing that you 

            16    addressed at the outset, which was our ability to 

            17    participate in the process of a listing policy itself 

            18    And I wanted to ask the State Board if we could receive 

            19    the State Board comments on USEPA's CALM, Consolidated 

            20    Assessment Listing Methodology, something that I had at 

            21    a PAG meeting in July. 

            22         I am pleased to hear that we will be able to get 

            23    Regional Board comments on any draft policy.  That was 

            24    going to be another request.  

            25         The original timeline had said that January would 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    be when a draft policy was circulated to the Regional 

             2    Boards and available to the public in April 8.  So a 

             3    third request was going to be if that still holds true, 

             4    if the AB 982 public advisory group could perhaps see a 

             5    draft prior to the release in April, maybe before our 

             6    March meeting, because we would like to have some input 

             7    into that policy and in particular Heal the Bay is 

             8    interested in the beaches component.  

             9         You have several of our comment letters, and our 

            10    beaches issues have not been addressed, either in the 

            11    very first draft policy that was issued or in this staff 

            12    report for this list.  I think that we have several 

            13    members who sit on the beach water quality work group 

            14    who feel very strongly that what is currently in the 

            15    staff report for this list is not representative of the 

            16    final recommendations and does not accurately portray 

            17    how those recommendations are viewed by all members of 

            18    the group.  

            19         In closing, I just wanted to remind this Board, 

            20    something I seem to be always reminding you of, in terms 

            21    of listing, that again it is imperative that California 

            22    hold the line for the nation.  And even if there are 

            23    political issues or administrative efficiency issues, an 

            24    impairment is an impairment is an impairment.  And we 

            25    hope that you keep that in mind.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         Thank you.  

             2              MR. C.J. WILSON:  With respect to the comments 

             3    on the CALM guidance, EPA published a document in July. 

             4    They released it.  We have copies of it.  They did not 

             5    request any comments.  We did not make any comment on 

             6    that report.  

             7              CHAIRMAN BAGGETT:  We can summarize what we 

             8    have already summarized.  The guidance, there is nothing 

             9    out there.  There is no draft.  We have been -- I know 

            10    you have fairly been busy on other issues and these 

            11    hearings.  

            12         Sujatha and Richard Watson.  

            13            MS. JAHUGIRDAR:  Thank you.  My name is Sujatha 

            14    Jahugirdar.  I represent Environment California, which 

            15    is the new home of California Environmental Work.  I am 

            16    California safe drinking water advocate.  I am here just 

            17    to give a little bit of a big picture perspective and 

            18    address some of the concerns that, I think, have been 

            19    mentioned by my colleagues from the environmental 

            20    community.  But I think they are important enough to 

            21    bear repeating.  

            22         Drinking water is of paramount importance to the 

            23    citizens of California in an age where we have just 

            24    witnessed recent cuts to the Colorado River to 

            25    California where the specter of drought looms on the 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    horizon.  It is more important than ever to be 

             2    protecting the drinking water supplies of the state.  

             3         The TMDL process is the essential piece of the safe 

             4    drinking water policy and, therefore, is a top priority 

             5    for the safe drinking water program and Environment 

             6    California.  The 303(d) list, again, as I am sure you 

             7    are aware of, is an essential part of this TMDL process.  

             8    We echo the appreciation voiced by previous speakers of 

             9    State Board's time and efforts put into assembling this 

            10    list.  We appreciate the addition of several water 

            11    bodies onto the new 2002 list as well.  

            12         However, there are several concerns that remain, 

            13    from our perspective, with this current 303(d) list.    

            14    Many of them have already been mentioned by my 

            15    environmental colleagues, namely with the addition of -- 

            16    the use of multiple lists in the this 303(d) process.  

            17    And several of the concerns, the use of the monitoring 

            18    list with the enforceable programs list, that has 

            19    already been voiced by my colleagues, so I would like to 

            20    concentrate my comments on the use of the TMDLs 

            21    completed list.

            22         We believe the use of the TMDLs completed list is 

            23    inconsistent with the goals of the Clean Water Act.  In 

            24    fact, undermine the intent of the Clean Water Act.  The 

            25    only basis for the listing or delisting of a water body 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    from the (303)d) list should be whether or not water 

             2    quality standards have been attained.  The use of such a 

             3    list would undermine the use of the standards in several 

             4    ways.  And I can point to just one example, which is 

             5    with the L.A. trash TMDL where we are seeing litigation 

             6    that may last for several years.  So when you are 

             7    talking about a case like that, well, what is the 

             8    definition of TMDL completed?  Clearly water quality 

             9    standards have not been attained in this case.  Yet with 

            10    the use of this list examples like the Los Angeles River 

            11    trash TMDL could be endangered of being delisted.  

            12         So that is the first concern we have with that.  

            13    The second concern we have with the use of this list is 

            14    increased staff time and the complications and the error 

            15    that will likely be introduced through the use of 

            16    multiple lists.  I think we all agree -- I think the one 

            17    thing we can all agree on is that this process is 

            18    complicated and takes a lot of staff time, and so to be 

            19    introducing three variations of lists that require 

            20    double, triple, quadruple checking will just, I think, 

            21    end up complicating the process.  So for these two 

            22    reasons we believe that the TMDLs completed list should 

            23    not be employed in this process.  And once again 

            24    reiterate the standpoint of the environmental community 

            25    that the only list that should be employed here is one 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    list which is the 303(d) list.  And from my perspective 

             2    the consequences and the ramifications for safe drinking 

             3    water policy in the state are extremely relevant to this 

             4    process and hope that the Board seriously considers 

             5    these comments.  

             6         Thank you.

             7              CHAIRMAN BAGGETT:  If there is any comfort, if 

             8    there is a monitoring list they are delisted.  They 

             9    aren't listed if they are on a monitoring.  That is why 

            10    it is a monitoring list; they aren't on the list.  

            11         Richard Watson.  

            12              MR. WATSON:  Good afternoon, Chairman Baggett, 

            13    Members of the Board.  My name is Richard Watson.  I am 

            14    before you today representing the Coalition for 

            15    Practical Regulation.  And I want to thank you again for 

            16    this opportunity to make our thoughts known on the 

            17    revisions to the 303(d) list.  I, too, want to thank the 

            18    staff.  They've done a remarkable job in attempting to 

            19    really strengthen the 303(d) list, which in times past 

            20    often didn't really get much attention.  It was just 

            21    sort of rubber stamped, and sometimes didn't get 

            22    approved by Regional Boards before recommendations came 

            23    up here.  So the process is greatly improved.  

            24         I also want to support their recommendation for the 

            25    monitoring list as well as enforceable programs list and 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    a TMDL completed list.  The monitoring list should be 

             2    used for water bodies when pollutants have not been 

             3    identified or when there is insufficient data to warrant 

             4    a 303(d) listing.  The monitoring list provides the 

             5    state and Regional Boards with a framework of furthering  

             6    examining these water bodies for future possible 

             7    actions.  

             8         Secondly, I would like to again thank the Board for 

             9    the addition of several delisting factors which have 

            10    been introduced in the 2002 revision.  Water bodies with 

            11    the enforceable programs can now be put on that list and 

            12    there were certain water bodies that were delisted 

            13    because the sources were found to be natural.  These are 

            14    important changes because they enhance the validity and 

            15    the integrity of the 303(d) list and actually improve 

            16    respect for the process.  

            17         However, there are some problems that do remain and 

            18    some of these were exemplified earlier with the 

            19    confusion that was discussed regarding the TMDL in San 

            20    Diego County.  One of the greatest problems remained 

            21    about the designation of impairments.  Significant 

            22    problems -- one of the problems is that there are still 

            23    proposed listings for which specific pollutants are not 

            24    identified.  This is important because the 303(d) list 

            25    drives TMDLs.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         The Clean Water Act specifically states that states 

             2    are to establish TMDLs for identified pollutants 

             3    suitable for calculation that are causing violation of 

             4    water quality standards.  And if we start listing things 

             5    for general conditions that those conditions do not form 

             6    the basis very well of a TMDL.  Thus, they should not be 

             7    listed.  Rather than including conditions of impairment 

             8    in the 303(d) list itself, they should be placed in a 

             9    monitoring list so that pollutants can be identified.  

            10         Earlier Craig noted that it's been policy to 

            11    identify pollutants first in discussing the situation 

            12    with the Board.  However, the following are examples of 

            13    some of the general conditions where pollutants are not 

            14    identified, but listings have been proposed: beach 

            15    closures, toxicity, color, odors, eutrophication and et 

            16    cetera.  He elaborated on the problem with 

            17    eutrophication.  These are conditions, not pollutants.  

            18    Water bodies should not be listed for these conditions 

            19    on the 303(d) list.  They should instead be placed on a 

            20    monitoring list.  That way the pollutants can be 

            21    identified and future action can be planned.  

            22         I often do not agree with Linda Sheehan, but she 

            23    may have been right on the point that she made.  She 

            24    said where we don't have enough information maybe we 

            25    just ignore it -- maybe she didn't say ignore -- keep 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    them off the list, not put them on the list, and that is 

             2    the case with the conditions of impairment.  We don't 

             3    have enough information.  We don't know what is causing 

             4    those impairments.  Those are sort of general conditions 

             5    for which there is not a lot of data.  They are 

             6    observations, and perhaps they get left on the 305(b), 

             7    either that or they be put on a monitoring list where 

             8    some focus can be placed on them through monitoring 

             9    efforts.  

            10         Coalition members are particularly concerned about 

            11    inappropriate listings in L.A. County, and in particular 

            12    the coastal portion of Region 4.  But the problem is 

            13    really statewide, and we ask that you direct staff to 

            14    remove all listings for which pollutants are not 

            15    identified from the revised list of impairment before 

            16    you forward that list to EPA for approval.  

            17         Lastly, I would like to echo a comment made this 

            18    morning by Chairman Baggett.  I agree with what he said. 

            19    He said we really have to look at the water quality 

            20    standards.  We do.  We need a comprehensive review of 

            21    the Basin Plans.  We don't need continuation of partial 

            22    or cursory triennial reviews.  We really need a 

            23    comprehensive review and that will help establish a lot 

            24    more credibility to the whole process.  

            25         Again, thank you.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. C.J. WILSON:  Just a point of 

             2    clarification.  In this review of the 303(d) list we did 

             3    it a case-by-case basis.  In every case where he had new 

             4    data, we evaluated the way I described, looking for the 

             5    pollutants and not the conditions.  There are many 

             6    conditions that were brought forward from the '98 list, 

             7    and that is the difference.  

             8              CHAIRMAN BAGGETT:  I am aware of that.  If 

             9    everybody here realizes we spent -- I have probably five 

            10    days of hearings.  Pete is the same, and Richard.  We've 

            11    all had numerous -- Pete and I had workshops in the 

            12    south.  We spent a lot of hours as well as in briefings 

            13    and reading over this stuff.  I would say the Board has 

            14    gone through this by on a water-by-water basis, carrying 

            15    our trusty binders.  

            16         With that, there are two more from Rodney Anderson 

            17    and Adam Ariki.  City of Burbank, I don't want to 

            18    confuse it, another city down south.

            19              MR. ANDERSON:  Move that up a little bit.    

            20            I am going to hand you some graphs so you can 

            21    look at it.  

            22            Good afternoon.  I am Rodney Anderson.  I am 

            23    representing the City of Burbank Public Works.  The 

            24    issue I would like to address is simple and 

            25    straightforward, not as complex as many of the ones you 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    are having to deal with.  

             2         The Burbank Western Channel is listed as impaired 

             3    for cadmium in this list.  Our response is the sampling 

             4    over the past two years has shown zero exceedances.  

             5    Therefore, it is not impaired and should not be listed.  

             6    In June of 2002 the City of Burbank submitted 15 samples 

             7    that clearly show cadmium levels meeting water quality 

             8    standards.  This data was further substantiated by 18 

             9    additional data points collected over the last nine 

            10    months.  Even without the recent data that we have 

            11    submitted, and I understand submitting recently is 

            12    difficult to analyze all that data, but even with the 15 

            13    that we had submitted back in June, there was zero 

            14    exceedances in all 15 of those.  The graph that I have 

            15    presented to you shows the chronic toxicity criteria and 

            16    it varies depending on the hardness of the water, and it 

            17    is approximately about five micrograms per liter.  All 

            18    of our samples, 33 sometimes over the past two years, 

            19    have shown less than 0.5 micrograms per liter.  We are 

            20    not even close to the criterion.  

            21         So the only reason that was shown as listing in the 

            22    fact sheet was that staff confidence was low.  

            23    Apparently 15 samples weren't enough.  We have taken 18 

            24    more.  Those are all -- 

            25              CHAIRMAN BAGGETT:  To delist?




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. ANDERSON:  To delist, correct.  We would 

             2    like to delist.  So to delist 15 weren't enough.  We 

             3    figured 18 more.  It is not clear how many need to be 

             4    taken.  

             5         Now, if it is impossible to delist it right now, 

             6    we'd ask you that at least the priority be moved from 

             7    high to low.  It is scheduled on the list for 2003.  So 

             8    the talk is, yes, we are going to be doing this again 

             9    next year.  But according to the schedule, the TMDLs are 

            10    scheduled for 2003.

            11              CHAIRMAN BAGGETT:  Part of the consent decree

            12              MR. ANDERSON:  I believe it is.  Nevertheless, 

            13    I'm going to have to explain to my city council why 

            14    TMDLs are being done for cadmium, which we never found 

            15    any, and it's protecting the fish, that really frankly 

            16    aren't there in a concrete-lined channel, the perfect 

            17    western channel.  So it is difficult for me to explain 

            18    why we are impaired for cadmium and we're going to spend 

            19    tens of thousands of dollars on this TMDL.

            20         So if we can't delist, at least move the priorities 

            21    lower or change the schedules.  

            22              CHAIRMAN BAGGETT:  Thank you.  

            23              MEMBER SILVA:  Craig.  

            24              CHAIRMAN BAGGETT:  Do you have any of this 

            25    data from June?  That would have been looked at.




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. C.J. WILSON:  Here is the situation on 

             2    this water body.  We got this data.  We evaluated them.  

             3    We saw what it showed.  There were 15 samples.  There 

             4    were no exceedances.  We talked to the Regional Board 

             5    staff about this.  Regional Board staff said, well, we'd 

             6    like to see three seasons' worth of the data.  We are in 

             7    the throws of developing a TMDL for this substance.  We 

             8    get more information.  Well, let me back up a step.  

             9         To list, typically takes less information to list 

            10    than it does to delist.  

            11              CHAIRMAN BAGGETT:  Right.  

            12              MR. C.J. WILSON:  And --

            13              CHAIRMAN BAGGETT:  Which is one of our 

            14    challenges.  

            15              MR. C.J. WILSON:  It is a huge challenge.  We 

            16    can go over it carefully if you would like.  It is about 

            17    testing the hypothesis and the amount of data that you 

            18    need to do that.  It is carried forward in a number of 

            19    different states, approaches, and we have used that same 

            20    approach.  

            21              CHAIRMAN BAGGETT:  Is three years reasonable? 

            22              MR. C.J. WILSON:  I think it is.  I think 

            23    around 29, 30 samples is reasonable.  

            24            CHAIRMAN BAGGETT:  We have 15 plus the 

            25    additional ones since.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. C.J. WILSON:  That's right.  And I haven't 

             2    reviewed these additional ones.  If you admit that into 

             3    the record, please do that, and if you think it is 

             4    important to do that.  We have suggested delisting for 

             5    water bodies like Watsonville Slough for oil and grease 

             6    where they had zero hits out of 30 samples.  We have 

             7    done it for Watsonville Slough where they had zero hits 

             8    out of 30 samples for metals.  That's been the approach 

             9    that we have taken.  

            10              CHAIRMAN BAGGETT:  Here we have zero out of 

            11    15, plus the additional since last year.  So that sounds 

            12    like it should be -- I guess the challenge I've got is 

            13    we spent all morning, a lot of this morning, on a 

            14    similar issue.  If something like the Regional Board 

            15    staff do all this work developing a TMDL.  Region 9, the 

            16    courts, you, us, if it is something that we are going to 

            17    come back here next year with or next -- say, gee, we 

            18    made a mistake here.  

            19              MEMBER CARLTON:  Mr. Chairman, if I might.  In 

            20    light of the data that has come in which indicates there 

            21    may not be a problem, but it is not quite enough data, 

            22    the suggestion was made to change the priority, which 

            23    would avoid the impetus to move forward with the study 

            24    before the complete data set is in.  

            25         Would that be a situation that is acceptable from 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    the staff?

             2              MR. C.J. WILSON:  Yes, that sounds 

             3    reasonable.  

             4            CHAIRMAN BAGGETT:  So we move it to low priority 

             5    and examine the -- they can deal with that.  

             6            MEMBER CARLTON:  At least then we can complete 

             7    the data set it feels it is necessary for the delisting 

             8    without having the TMDL go forward while the data still 

             9    is being done.  

            10              CHAIRMAN BAGGETT:  It looks like if you've got 

            11    15 and you've got that much more here in front of us, 

            12    you just need to review it.  

            13              MR. C.J. WILSON:  Again, this is a matter of 

            14    getting more data into the record.  A lot of people are 

            15    asking to put a lot more data into the record.  We just 

            16    couldn't review it all.  

            17              CHAIRMAN BAGGETT:  For today we will avoid 

            18    that by moving it to low priority.  

            19              MR. ANDERSON:  Thank you very much.  Just one 

            20    more comment real quick.  The first 15 data points were 

            21    over a nine-month period.  So that was three seasons, if 

            22    there was a question.  

            23              CHAIRMAN BAGGETT:  Now you will have time.  We 

            24    will get it into the record and next time we are here.  

            25            MR. ARIKI:  Good afternoon, Chairman of the 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Board, Board Members.  Thanks for the opportunity.  My 

             2    name is Adam Ariki.  I am with L.A. County Department of 

             3    Public Works.  I am the storm water quality manager.  I 

             4    just handed to you our brief presentation.  It was quite 

             5    a bit more than that.  I trimmed it down in the interest 

             6    of time.  

             7         It seems like the theme that you've been hearing 

             8    all along about more data that were not looked at during 

             9    this impairment determination process is what I am going 

            10    to be hitting on.  

            11         I heard the phrases that data was submitted in the 

            12    eleventh hour.  I would like to set the record straight 

            13    on that.  L.A. County has been monitoring storm water 

            14    quality for the last ten years.  It is part of our NPDES 

            15    permit.  We spend roughly a million dollars per year on 

            16    collecting data and then reporting all this analysis to 

            17    the Regional Water Quality Control Board on an annual 

            18    basis as part of our permit requirements.  So for 

            19    someone to come here and say we got data in the eleventh 

            20    hour is ludicrous, to say the least.  

            21         Having said all that, the first concern of ours and 

            22    we have brought this concern before and we feel that 

            23    still they are not adequately addressed.  We are not 

            24    lawyers.  We are engineers and scientists.  And all the 

            25    data that we have submitted to you are supported with 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    tables and graphs.  They are in the comments.  

             2         So first concern that we have is the water quality 

             3    criteria for aquatic life in the concrete-lined 

             4    channels.  The data that was collected was based on 

             5    acute criteria.  The data simply was used for chronic 

             6    criteria.  What that means, and I have stated that 

             7    before, that there is an exposure of at least four days 

             8    to the toxins.  You all know that these channels are 

             9    designed to carry the flow as fast as possible.  So 

            10    those bases for determining that this channel are 

            11    impaired for metal are not scientific at all.  

            12         We brought this issue, like I said, up and are 

            13    willing to discuss it with whomever, and we base it on 

            14    science.  

            15              The second issue that we have is, and I 

            16    brought this up again before, the hydraulic patterns in 

            17    water quality.  We just heard a little bit of 

            18    discussion.  Was it 30 samples?  Was it three years?  

            19    Was it two years?  In many cases data collected during 

            20    1997, 1998 and 1999 storm water season were used to 

            21    determine impairment in the 2002 303(d) list.  

            22    Additional data collected under our permit, like I 

            23    indicated earlier, three years' worth of data, 

            24    1999-2000, 2000-2001, 2000-2002, so it's quite a bit of 

            25    data, was not considered at all in the 2002 303(d) list.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1    In some cases it was considered for the addition and the 

             2    deletion, some of the data, the new data.  But in many 

             3    cases for all the ones that were carried over from 1998 

             4    we wouldn't even revisit it, which is kind of an 

             5    inconsistent pattern of using the data.  

             6         Last time again I discussed the nondetect.  You 

             7    know some samples in the laboratory they come nondetect.  

             8    So some of the values -- they are assigned values, and 

             9    those assigned values were used for impairment 

            10    determination.  An example of that, and it is 

            11    unjustified method, obviously, an example of that for 

            12    Coyote Creek for dissolved lead is listed in the 2002 

            13    303(d) list due to 19 exceedances; that is what it says. 

            14    We investigated the data.  Thirteen out of these 19 

            15    exceedances, 13, occurred because assumed value of nine 

            16    detect laboratory analysis.  So it is a little bit out 

            17    of whack here.  So, you know, we shouldn't consider 

            18    nondetect value to constitute exceedance.  It is not 

            19    conclusive.  

            20            The other issue that we have with the 303(d) 

            21    listing is deficiencies for listing.  All water bodies 

            22    that have insufficient exceedances should be placed on 

            23    the monitoring list until sufficient data and 

            24    information for clearing impairment determination are 

            25    collected.  We are concerned that there is no clear 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    schematic listing and delisting mechanism used to make 

             2    consistent monitoring lists and impairment decision.  An 

             3    example of that, the State Water Resources Control Board 

             4    proposes to place Malibu Creek for a total selenium on 

             5    the monitoring list because there are insufficient 

             6    exceedances, two exceedances out of 21, for impairment 

             7    determination.  However, Calleguas Creek for nitrate as 

             8    nitrogen, Santa Clara River for nitrate as nitrite -- as 

             9    nitrogen and Los Angeles River for PCBs that were 

            10    originally on the monitoring list that came out 

            11    initially due to the same reasoning as stated above and 

            12    now moved from the monitoring list to the revised 303(d) 

            13    list without adequate explanation.  We are not saying 

            14    that there isn't enough; we haven't seen it.  

            15         We did again water analysis and we also found that 

            16    several additional water bodies were considered  

            17    impaired from the 2002 303(d) list although they showed 

            18    marginal exceedances.  These water bodies include the 

            19    Los Angeles River Reach 1 for dissolved lead, San 

            20    Gabriel River Reach 2 for dissolved copper, Coyote Creek 

            21    and Ballona Creek for dissolved zinc.

            22         We request that the State Water Resources Control 

            23    Board reinvestigate the water bodies that showed 

            24    marginal exceedances for impairment by placing them on 

            25    the monitoring list until sufficient data or evidence is 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    proven.  The fact sheets, like I stated earlier, and 

             2    this would be the last point that I raise, the fact 

             3    sheets which include the basis for impairment decisions 

             4    and reasons for listing and delisting are only provided 

             5    for water bodies added to or deleted from the existing 

             6    1998 303(d) list.  This indicates that State Resources 

             7    Control Board and the L.A. County Regional Water Quality 

             8    Control Board did not consider new water quality data 

             9    for some water bodies that were moved from the 1998 

            10    303(d) list to the 2002 303(d) list.  

            11         So we believe that the State Water Resources 

            12    Control Board and the Los Angeles Regional Board should 

            13    reevaluate the impairment carried over from the 1998 

            14    303(d) list into the 2002 303(d) list using the new 

            15    water quality data.  This would be consistent at least 

            16    with the ones that they have added or deleted.  We again 

            17    investigated some water bodies in the 2002 303(d) list 

            18    for which new water quality data was not considered and 

            19    found that they could be delisted based on recent water 

            20    quality data that we reported in the last cycle.  For 

            21    example, San Gabriel River Reach 2 for dissolved lead 

            22    was carried over from the 1998 303(d) list to the 2000 

            23    303(d) list.  But our analysis on the data collected 

            24    during the 1997-2002 storm water season indicated that 

            25    the San Gabriel River Reach 2 for dissolved lead showed 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    only 1.9 percent exceedances and should be delisted, 

             2    thus.  

             3         We also examined shoreline monitoring bacteria in 

             4    Santa Monica Bay collected during 1995 through 2000  and 

             5    found that several beaches could be delisted due to the 

             6    same reasons.  These beaches include:  Trancas Breach, 

             7    Leo Carillo Beach, Cabrillo Beach, Hermosa Beach, Malaga 

             8    Cove Beach, Manhattan Beach, Nicholas Canyon Beach, and 

             9    Zuma Beach also.  Therefore, we recommend that the State 

            10    Water Resources Control Board consider the data that was 

            11    collected during 1997 through 2002 for all the city 

            12    impairments and not only for additions and deletions 

            13    from the 1998 303(d) list.

            14         I want to reiterate that we spent a lot of money 

            15    collecting this data.  We spent $5,000,000 in every 

            16    permit cycle, and I would hate to see it go to waste.  

            17    This data is available.  It was submitted to your staff 

            18    on an annual basis.  

            19         Thank you very much for your time.

            20              CHAIRMAN BAGGETT:  Thank you.  

            21              MR. C.J. WILSON:  I must apologize for my 

            22    earlier statements about the data.  When the Regional 

            23    Board developed their recommendations, they based it on 

            24    the data that was available to them during the time 

            25    period when the record was open.  They did a very good 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    job on that.  Data is continually being collected and 

             2    used.  It is obviously available to them.  Wasn't in our 

             3    record.  I don't have that information before you, so we 

             4    can consider all of that.  We can take more time.  We 

             5    can analyze that information, get it back before you.  

             6    It is a very big deal to do that.  

             7         Another issue that came up during the presentation 

             8    is it points to one of the difficulties in this process, 

             9    and that is the close calls, when it is very -- when 

            10    there is a few exceedances in a data set, you have to 

            11    make a call.  If half the data or three-quarters of data 

            12    exceed the standard, it is pretty straightforward.  When 

            13    two or three --

            14              CHAIRMAN BAGGETT:  1.9 percent.  

            15              MR. C.J. WILSON:  Well, we would not go with a 

            16    1.9 percent exceedance rate.  That is one of those where 

            17    there was additional information that I am not privy to, 

            18    that I can't analyze.  I just can't comment with respect 

            19    to that.  When there was a close call, especially in 

            20    Region 4 we worked with that Regional Board and we came 

            21    up with the approach and reasons to accept those 

            22    recommendations.

            23              MEMBER CARLTON:  One more question for you, 

            24    Craig.  In your review of data that was available, did 

            25    you look at the chronic versus the acute situation?




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. C.J. WILSON:  Yes.  The acute don't exceed 

             2    -- the data didn't exceed the acute values.  Those are 

             3    maximum values.  The chronic are continuous values, 

             4    called CMC -- the CCC, criterion continuous 

             5    concentration.  That is what we looked at and that is 

             6    what was exceeded.

             7              MR. BISHOP:  I just wanted to assure the Board 

             8    that we did look at all the data that was submitted to 

             9    us.  We did make fact sheets and recommendations for 

            10    those that either should be added to the '98 list or 

            11    removed.  We did not make fact sheets for all the data 

            12    that we analyzed if it didn't change a recommendation.  

            13    That was the approach that was used from all of our 

            14    listings.  

            15         I did notice that they talked about data up through 

            16    2002.  You should remember that we made our 

            17    recommendation for data up through June of 2000 because 

            18    that was when we were closing out this listing.  There 

            19    was new data submitted after that which we then 

            20    reanalyzed based on your -- as we submitted to you.  We 

            21    have used all the data that we had at the time and that 

            22    has come in during the --

            23              CHAIRMAN BAGGETT:  We heard it wasn't 

            24    submitted to us, I guess.  

            25              MR. C.J. WILSON:  I have all the data that 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    they have.  

             2              CHAIRMAN BAGGETT:  Is in fact a 1.9 percent 

             3    exceedance right for this specific reach?

             4              MR. BISHOP:  No one knows except for what they 

             5    just said.  

             6              CHAIRMAN BAGGETT:  If you made a 

             7    recommendation, I hope you --

             8              MR. BISHOP:  When we made the recommendation 

             9    --

            10              CHAIRMAN BAGGETT:  They came out with 1.9 

            11    percent.

            12              MR. BISHOP:  No, when we made the 

            13    recommendation, it didn't come out 1.9 percent.  But we 

            14    didn't have data up through June of 2002 at the time 

            15    that we made our recommendation.  That was long --

            16              CHAIRMAN BAGGETT:  Sounds like it was 

            17    provided, though.  

            18              MEMBER SILVA:  I can see what Jon -- 

            19              MR. C.J. WILSON:  This is the first I've seen 

            20    of this new data.  We base all of our recommendations on 

            21    what the Regional Board gave us and what they submitted.  

            22              CHAIRMAN BAGGETT:  Is was just represented it 

            23    was turned in.  It was or wasn't.  I guess, now we have 

            24    a real challenge.

            25              MR. BISHOP:  I think the challenge is this was 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    originally -- my recollection is that this was -- 

             2    originally the cutoff day was May 31st of 2000, was when 

             3    we did our original analysis.  

             4              CHAIRMAN BAGGETT:  You, but not for us.      

             5              MR. BISHOP:  Right.  And then we submitted all 

             6    of that.  We did that analysis.  We turned it into you.  

             7    Then there was additional data submitted to you that 

             8    Craig gave back to us later and we reanalyzed to make 

             9    sure.  We would not have recommended anything for that 

            10    1.9.

            11              MR. C.J. WILSON:  We wouldn't either.  

            12              CHAIRMAN BAGGETT:  You need another 20 

            13    people.  

            14              MR. C.J. WILSON:  Twenty-five would be 

            15    adequate.  

            16              CHAIRMAN BAGGETT:  This is a massive amount of 

            17    data.  I can just imagine you spending a million dollars 

            18    a year on data, just one county, that is a massive 

            19    amount of information.  

            20         I guess the question to Dave, so what do you do?  

            21    Do you take into account our record, including all of 

            22    the information that we now have in addition to the 

            23    2000?  This could be --

            24              MR. D. SMITH:  EPA believes the states have 

            25    the discretion to decide when they close their record 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    for purposes of this.  And as I said before, I think it 

             2    is reasonable to not consider the things that just very 

             3    recently came in just in the interest of maintaining an 

             4    orally disciplined process.  We know we do this 

             5    repeatedly and as I said very soon.  

             6         So we will look to see how you frame the record, 

             7    and we will look at whatever you send us.  But we would 

             8    discourage from necessarily including every single thing 

             9    you have heard because -- put it this way:  I think that 

            10    penalizes people who thought that when you closed the 

            11    record before that you really meant it.  And in some 

            12    ways it rewards the people who can most easily keep 

            13    track of these proceedings.

            14              CHAIRMAN BAGGETT:  We have a stack of data on 

            15    a river which is coming up on Region 1, because we said 

            16    we would take data until June of 2002.  But at Regional 

            17    Boards, this is first I've known, cut it off two years 

            18    prior to that.  

            19              MR. C.J. WILSON:  We sent out -- we got new 

            20    information in June.  We sent it out to the Regional 

            21    Boards.  And when we got new information they evaluated 

            22    that and got it back to us.  And we factored it into our 

            23    analysis at that point.  A lot of this data is up 

            24    through last month.  Frankly, we just saw it recently.

            25              CHAIRMAN BAGGETT:  In our record it is -- we 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    cut it off June of 2002, correct?  

             2              MR. LEVY:  Mr. Chairman and Members of the 

             3    Board, Michael Levy, again.  Originally the process 

             4    called for a solicitation by Regional Boards from May 

             5    2001.  Jon Bishop misspoke.  So the Regional Boards had 

             6    sent out solicitation on behalf of the State Board 

             7    within each region, and that was supposed to be cut off 

             8    from May 2001.  

             9         Subsequently, the State Board asked that the record 

            10    be reopened to accommodate everyone through June of 

            11    2002.  That is where the record was closed.

            12              CHAIRMAN BAGGETT:  That is an additional year 

            13    and a half of data, which given all the litigation and 

            14    all the raised import of TMDLs over the last three 

            15    years, the great interest creating data and 

            16    understanding this is based on data from both sides.  So 

            17    all of a sudden we have inundated ourselves with another 

            18    year and a half of data, and we are being asked today as 

            19    a Board to adopt individual actions.  And I am quite at 

            20    a loss on this one, personally.  

            21         The engineers here have a different point, but I am 

            22    just -- we're trying to determine if, in fact, this 

            23    analysis that we are just presented by L.A. County is 

            24    accurate and information is, in fact, in the record that 

            25    shows a 1.9 percent exceedance, for example.  Then it 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    seems like a no-brainer to delist.  But it sounds like 

             2    we don't even know --

             3              MR. C.J. WILSON:  This data, the newer stuff 

             4    beyond June, was not submitted until recently.  

             5              CHAIRMAN BAGGETT:  But it says 1997 to 2002.  

             6              MR. C.J. WILSON:  We analyzed everything that 

             7    we had in our record.  And I can't say with specificity 

             8    on this data set if we had this in our record, but 

             9    everything we had we provided to the Regional Boards.  

            10    They got their analysis back to us.  And many of our 

            11    recommendations changed based on that new data.  

            12              CHAIRMAN BAGGETT:  No one can answer the 

            13    question on whether -- that's the problem I have here.

            14    That is --

            15              MR. ARIKI:  Can I throw in a word?  What I 

            16    said, I said the data that was not considered is 

            17    1999-2000, 2000-2001 and 2001-2002.  We submit these 

            18    data to the Regional Water Quality Control Board on an 

            19    annual basis in an annual report.  We also submitted a 

            20    five-year, under the 1996 permit, comprehensive one 

            21    document of all the data to the Regional Water Quality 

            22    Control Board.  

            23         So if even they made a cutoff date of June 2000, 

            24    you should have at least two more years of data that 

            25    should have been used in the analysis.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              CHAIRMAN BAGGETT:  That is what, I guess, I'm 

             2    trying to get to.

             3              MR. BISHOP:  I think I can answer that.  It 

             4    seems to me on what Adam said, correct me, Adam, if I am 

             5    wrong, that you submitted it under the annual report   

             6    not as part of the solicitation for the 303(d) list?   

             7              MR. ARIKI:  Right.  Part of the annual report 

             8    for purpose of the 303(d) list or anything that the 

             9    Board, Regional Board, deemed necessary.  

            10              MR. BISHOP:  Did you submit it under the 

            11    solicitation for the 303(d) list?

            12              MR. ARIKI:  Did you solicit it for the 303(d) 

            13    list?

            14              MR. C.J. WILSON:  Yes.

            15              MR. BISHOP:  We sent a letter to every one of 

            16    our dischargers. 

            17              MR. ARIKI:  Yes, we did.  T.J. is saying we 

            18    did.           

            19              MR. BISHOP:  It didn't include the recent 

            20    data, though?

            21              DR. KIM:  That's right.

            22              MR. BISHOP:  That's the issue.  

            23              MEMBER KATZ:  I would like you and your 

            24    colleague both down here so we can understand.  He is 

            25    saying something a little different than you are saying, 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    even though we've gone through this issue with the L.A. 

             2    Regional Board before.  

             3              CHAIRMAN BAGGETT:  If the stakes weren't so 

             4    high, I guess we would ignore this whole thing.  But the 

             5    stakes are high here; there is a lot of money, there is 

             6    a lot of time and there is a lot of litigation, a lot of 

             7    our staff's time which we are fairly protective of as 

             8    everyone in this room saw.  I think it is important to 

             9    sort this out.  If we are going to be right back here 

            10    doing this again, especially, we have to figure out a 

            11    process.  I am not placing blame anywhere.  I'm trying

            12    to understand what we are making this decision on and 

            13    what we aren't.  

            14              MR. ARIKI:  Trust me.  I am not -- we are not 

            15    placing the blame.

            16              MEMBER KATZ:  If I can ask you to have your 

            17    colleague identify himself and repeat the statement he 

            18    just made.  

            19              DR. KIM:  My name is T.J. Kim.  I am with L.A. 

            20    County Public Works.  

            21              MR. ARIKI:  For the record he is Dr. Kim; he's 

            22    modest.  

            23              MEMBER KATZ:  If that helps answer this 

            24    question, great.  

            25              MR. ARIKI:  It does.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MEMBER KATZ:  When you were standing over 

             2    there you seemed to indicate that the new data was or 

             3    was not submitted as part of the report or in response 

             4    to the 303(d) letter.  

             5              DR. KIM:  Regional Board solicited data for 

             6    the 303(d) list process in 2001.  

             7              MEMBER KATZ:  Stand forward and speak into the 

             8    mike, don't look at him because we can't hear you.  

             9              DR. KIM:  I try to remember what I did.  There 

            10    was 2001, May 2001, I believe.  At that time we 

            11    collected all available information, at that point.  And 

            12    we submitted it to the Regional Board for their 

            13    analysis.  And then since then we have collected storm 

            14    water information for, I believe, 2000-2001 and 

            15    2001-2002 storm season, and then we submitted such 

            16    information as part of our annual written reports under 

            17    the NPDES permit to the Regional Board.  

            18              MEMBER KATZ:  So then the newer data was not 

            19    submitted in response to the 303(d) list inquiry, but 

            20    was included in an annual report you gave to the Board, 

            21    to the Regional Board? 

            22              DR. KIM:  That is correct.  

            23              MR. ARIKI:  As part of the NPDES permit.  

            24              DR. KIM:  One thing I noted when I evaluated 

            25    the data used by the Regional Board was that many times 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    they didn't include the data we submitted for '99 and 

             2    2000 storm season, although we submitted such data as 

             3    part of this process.  That is something missing 

             4    although we submitted as part of this process.  

             5         Mainly they relied on the data from '97-98 storm 

             6    season and the '98-99 storm season.  But the problem is, 

             7    I believe, '97 and '98 storm season was El Nino year, so 

             8    we had a lot of storm events.  That kind of skewed all 

             9    the data sets, and we tend to have a lot of it, the 

            10    impairment.  But if we were to include the longer period 

            11    of time of data, then our analysis shows that we can 

            12    delist a lot of water bodies.  Actually, that is the 

            13    point we were trying to make.  So because of El Nino 

            14    season in '97-98 storm season we had unfair impairment 

            15    in the water bodies.  

            16              CHAIRMAN BAGGETT:  I think we understand.  

            17    Again, it is not the fault, especially of the Regional 

            18    Board.  We know you are buried.  But the data --

            19              MR. BISHOP:  I think that the issue is that 

            20    this process has gone on for almost a year and half, two 

            21    years longer than it was expected, and the point where 

            22    things get cut off, there is data being collected and 

            23    submitted from two or three weeks ago.  There is a point 

            24    where you can no longer analyze that.  

            25              CHAIRMAN BAGGETT:  But our notice cut it off 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    in June of 2002.  

             2              MR. BISHOP:  And all data that was submitted 

             3    by that was analyzed.  It did not show a 1.9 percent 

             4    exceedance.  I can guarantee that because we would not 

             5    have made that recommendation to you.  It may be that 

             6    when you add in 2001 and 2002 storm season, which would 

             7    have been --

             8              CHAIRMAN BAGGETT:  Before June of 2000.  

             9              MR. BISHOP:  Would the data have been to 

            10    Craig?  I don't believe it would have been or we would 

            11    have analyzed it.  

            12              MR. C.J. WILSON:  I have asked two of my staff 

            13    to go look for all the submittals related to this that 

            14    we have, and we will bring them down here if we can find 

            15    them.  

            16              CHAIRMAN BAGGETT:  We aren't going to be able 

            17    to finish this process and adopt this today if we open 

            18    -- keep these kinds of things open.  I am trying to 

            19    remedy this in the future because there is some concern 

            20    here about the process.  If we can really delist more 

            21    than -- we aren't having a problem finding more things 

            22    to list, obviously.  But if there is some that they have 

            23    results and problems, it would be nice to get credit for 

            24    trying and spending all that time and money trying to 

            25    fix these.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. ARIKI:  If it would be of any help, here 

             2    are the tables.  

             3              CHAIRMAN BAGGETT:  At this point that finishes 

             4    all the regions but the North Coast, and we've got a few 

             5    loose ends here.  I would be willing to straighten it 

             6    all out at the very end.

             7              MEMBER SILVA:  Let's do them at the end.  

             8              CHAIRMAN BAGGETT:  We've still got the Region 

             9    2 issue.  I want to deal with this Hawiee Reservoir 

            10    briefly and a couple others.  

            11              MR. LEVY:  Mr. Chairman, Members of the Board,  

            12    Michael Levy, again.  Since staff is going up to collect 

            13    the data, why don't we put further discussion of this 

            14    water towards the end of the calendar.  

            15              CHAIRMAN BAGGETT:  We are going everything 

            16    towards the end.  If you want to have some information, 

            17    they can --

            18              MR. LEVY:  We can clear it up and know exactly 

            19    where we are not.  

            20         Thank you.     

            21              CHAIRMAN BAGGETT:  With that, last region, 

            22    North Coast.  Again, it's getting late.  We have 20 

            23    cards, and I think they are all on the same basic issue.  

            24    If someone's made the comment already or made it before 

            25    you, just say you agree.  You don't have to reiterate 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    the whole argument again.  We can figure it out.  

             2         Sally French, Mattole River watershed and then Mary 

             3    Etter.  

             4              UNIDENTIFIED AUDIENCE MEMBER:  We are here as 

             5    a group. 

             6              CHAIRMAN BAGGETT:  You are up.  

             7         This is all information that is already in the 

             8    record, I assume.

             9              MR. MCWHORTER:  You have seen the map.

            10              MR. C.J. WILSON:  It is in the record.  

            11              CHAIRMAN BAGGETT:  You have to talk into the 

            12    microphone.  

            13              MS. ETTER:  I am Mary Etter.  I am from 

            14    Honeydew, which is a very rural community in Humboldt 

            15    County.  And again, this is a map of the Mattole 

            16    watershed.  The watershed comprises just a little less 

            17    than 200,000 acres.  And the mass which is west, I don't 

            18    know if it is the way the map is held there, but the 

            19    west area is the Pacific Ocean.  

            20         In 1996 Mattole learned that Mattole watershed was 

            21    going to become or going to be nominated to become a 

            22    sensitive watershed.  At that time landowners banded 

            23    together and formed what is known as the Mattole 

            24    Landowners for Sensitive Watershed Management.  This is 

            25    a group of landowners who oppose excessive regulations 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    which they consider unnecessary regulation.  The light 

             2    green in the map, which you noticed was the majority of 

             3    the map, represented the property owned by those 

             4    opposing more regulation.  The dark green represented 

             5    the government owned properties.  And the white 

             6    represented four groups.  That which supported more 

             7    regulation.  That which took a neutral position.  That 

             8    which we could not contact, but said could not contact 

             9    and those that we did contact said they opposed but we 

            10    did not receive written petitions back stating that they 

            11    opposed it.  

            12         At the time this map was made 73 percent of the 

            13    land was owned by people that opposed more regulation.  

            14              CHAIRMAN BAGGETT:  Let me correct that.  

            15    Mattole is already listed for sediment.  There is 

            16    nothing new happening.  It is already on the impaired 

            17    water body list.  There is nothing new we can do.

            18              MS. ETTER:  That is correct.  

            19              CHAIRMAN BAGGETT:  You are proposing to take 

            20    it off?

            21              MS. ETTER:  I am proposing that you take it 

            22    off.  My point in going through this whole thing was to 

            23    just show you what the sentiment of the landowners in 

            24    the area is.  Also, we had taken this map to the Board 

            25    of Forestry and after the Board of Forestry had studied 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    this for two years, they made the decision to veto it.  

             2    It was a six to two vote.  I guess I would hope that the 

             3    Water Quality Board Members, EPA Board members would 

             4    respect and comply with the decision of another 

             5    government agency which is --

             6              CHAIRMAN BAGGETT:  It is a totally separate 

             7    agency.  

             8              MS. ETTER:  I understand that.  But I did hope 

             9    that it would have some weight.

            10              CHAIRMAN BAGGETT:  Let's see, if the Board of 

            11    Forestry did this, then maybe we should do --

            12              MS. ETTER:  Again, I am referring to what we 

            13    consider excessive regulation.  

            14            I have gone to numerous TMDL workshops in the 

            15    North Coast watershed assessment workshops for our area.  

            16    As I understand it, the TMDLs are to be based largely 

            17    upon the information in the assessment programs for each 

            18    area.  There is a vast difference in the geological 

            19    information between these two documents.  It doesn't 

            20    seem possible to me that the TMDLs for our area could be 

            21    set with any accuracy considering this difference.  I 

            22    had hoped to have a detailed list of all the differences 

            23    so I could point each one out.  But as you know, the 

            24    assessment program for our area has not been approved by 

            25    the governor yet.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         And so last night at 10:00 the people who wrote the 

             2    program actually printed out a copy, or two copies for 

             3    me, so I can bring them here today.  I do have them with 

             4    me.  I could give you one even though the governor 

             5    hasn't signed it yet.  But I was going to point out just 

             6    a few things that were in there to show that I feel that 

             7    the 32 percent TMDL calculation for natural causes is 

             8    incorrect.  We feel it should be much higher, and I base 

             9    that upon the information in here.  

            10         On Page 29, landslide associations, 68 percent of 

            11    all the debris slides and debris flows that were 

            12    observed are adjacent -- pardon me, are not adjacent to 

            13    roads.  So I will say that again, maybe I didn't say it 

            14    clearly.  Sixty-eight percent of all debris slides and 

            15    debris flows that were observed are not adjacent to 

            16    roads.  And out of this 68 percent, 77 percent are 

            17    believed to have produced sediment that has gone into 

            18    the streams.

            19              CHAIRMAN BAGGETT:  What we need for today, if 

            20    you want to delist it you have to show us studies that 

            21    show there is less sediment or the problem, not where it 

            22    is coming from; that is not the issue here.  It is  

            23    actual sediment in the river.  You have sites -- this 

            24    study is not in the record.

            25              MS. ETTER:  But it is sediment --




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                              CAPITOL REPORTERS (916) 923-5447             

             1              CHAIRMAN BAGGETT:  Right.  So that is what -- 

             2    if you've got any information for any of your -- that is 

             3    what we need.

             4              MS. ETTER:  It seems to me that this is what 

             5    you wanted, but should I continue a little bit or not?

             6              CHAIRMAN BAGGETT:  You're well over your 

             7    time.  

             8              MS. ETTER:  One last thing.  This was a study 

             9    that was done called Negative Map Channel 

            10    Characteristics.  And negative map channel 

            11    characteristics are the features that indicate sediment 

            12    production, sediment transport or sediment depositions.  

            13    And in 1984 34 percent of all blue line streams were 

            14    occupied by negative map channel characteristics.  In 

            15    2000 only 20 percent of all blue line streams were 

            16    occupied by negative map channel characteristics.  

            17         Now, to me, if nothing else, this shows a 

            18    significant improvement, and this was in this study.   

            19         Well, I guess I will just close by saying that a 

            20    majority of landowners oppose this and we do not think 

            21    arbitrary findings -- our hope that something so 

            22    important to us would not be based on arbitrary findings 

            23    that are foundational.  

            24         Thank you.  

            25              CHAIRMAN BAGGETT:  Craig, do you have any?




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             1              MR. C.J. WILSON:  He have evaluated all the 

             2    data that was submitted by this group and included a 

             3    fact sheet in our staff report.  It is my understanding 

             4    that EPA has approved the TMDL for the Mattole River for 

             5    sedimentation.  That is my understanding -- established 

             6    it, excuse me.  The implementation plan hasn't been in 

             7    place yet.  So those are the facts on this water body.  

             8    State and Regional Board staffs still agree that this 

             9    water should be listed.  

            10              CHAIRMAN BAGGETT:  TMDL is already --

            11              MR. C.J. WILSON:  Established by EPA.

            12              MS. ETTER:  Previously we had written a letter 

            13    asking if we could submit information concerning this 

            14    assessment program for our area since it wasn't -- the 

            15    final draft hadn't been approved.  I don't think we 

            16    received an answer back.  But, again, we are hoping that 

            17    when it is finalized that we can do that and point out 

            18    the differences.  

            19              CHAIRMAN BAGGETT:  Take that.  We have a few 

            20    other folks from the North Coast.  Let's put that under 

            21    advisement.

            22              MS. ETTER:  Thank you.  

            23              MR. MCWHORTER:  We have five feet of water --

            24              CHAIRMAN BAGGETT:  Identify your name.       

            25              MR. MCWHORTER:  Sterling McWhorter, Humboldt 




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             1    County.  

             2         We got five feet of water in December in Mattole 

             3    Valley, and it is still there.  Not everything is slid 

             4    down the hill.  The river's actually in better shape 

             5    because of all that rain and the splinters of the river 

             6    actually make a pretty nice channel again.  The process 

             7    -- you guys definitely need to go through a process of 

             8    getting these rivers delisted.  You're spending billions 

             9    of taxpayers' dollars on watersheds that don't need the 

            10    money spent on them.  

            11         The Mattole is low.  It is on a low list.  It is 

            12    not high; it is low.  And because it is one of the most 

            13    pristine rivers in California, that is why EPA is 

            14    starting there, because they want to keep that.  Because 

            15    they don't want it to be logged again like it was in the 

            16    1960s, and it won't be.  Forest Practices Act won't 

            17    allow that and the landowners in that watershed are not 

            18    going to do that again.  We have learned from the 

            19    mistakes.  We need a process to get delisted, to reduce 

            20    our sediment from 68 percent of man made -- we don't 

            21    produce 68 percent of the sediment that the Regional 

            22    Board is saying that we do.  It is computer model based, 

            23    and what you put in there is not necessarily God's word.  

            24    We will be back; you're going to have to do it again.

            25              CHAIRMAN BAGGETT:  We will be right back here 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    in less than 24 months.  And I think that is where we 

             2    need to get information.  For us to try to decide this 

             3    kind of information today, I think, will be 

             4    challenging.  

             5              MR. MCWHORTER:  I didn't expect it to be 

             6    delisted today.  We have to follow up before we --

             7              CHAIRMAN BAGGETT:  We appreciate because that 

             8    is what we need, is people out there.  It is a big state 

             9    as you know, so it is a lot of water bodies.  And we 

            10    appreciate your taking the time to come down. 

            11         Sally French.

            12              MS. FRENCH:  My name is Sally French.  My 

            13    husband and I have a ranch in the middle part of 

            14    Mattole.  I won't take much time, but since I came this 

            15    far I'm going to say my piece.  

            16              CHAIRMAN BAGGETT:  I agree.  

            17              MS. FRENCH:  Basically we brought with us 

            18    copies of the NCWAP report.  And in that report it shows 

            19    that the improvements in the Mattole from 1984 to the 

            20    year 2000 are incredible.  Even the aerial photos show 

            21    the difference.  And we think that the amount of money 

            22    that is spent on TMDLs when they are not needed, and we 

            23    have -- we feel that overall we have not been given the 

            24    ways and the means to prove that a lot of the 

            25    environmental reports which we believe have been skewed, 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    in our hearts we believe some of those reports are 

             2    skewed purposely.  We believe that it is not a fair 

             3    situation.  There are those of us that are, of which are 

             4    three, represent the ranches in this area.  

             5         And the biggest thing that the NCWAP report shows 

             6    is that the only really big thing is the lack of water 

             7    flow as far as the impairment of fish in the low months 

             8    in August.  And it is shown right there in that report 

             9    that that is happening because of development.  And what 

            10    is happening is that those of us that still own large 

            11    land holdings in the Mattole are fast losing hope and 

            12    are not sure that we are going to be able to continue to 

            13    hold onto and not make everything worse by developing 

            14    our properties as well.  There is nothing in Humboldt 

            15    County laws, it seems, that keeps the development from 

            16    happening beyond a certain amount.  

            17         Every time that a land is broken up, every person 

            18    that moves onto that land taps water.  And so that takes 

            19    water from the river.  And we think that the whole 

            20    process needs to be looked at, and obviously being here 

            21    today has sort of spotlighted that, that the whole 

            22    process needs to be looked at more closely.  

            23         I would like to submit just a quick letter from 

            24    another rancher in the Mattole, Tom Phelps, and he says 

            25    my primary concern is that the TMDL model does not take 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    normal erosion into proper account.  And that is what 

             2    they were saying, too.  And I would just reiterate that 

             3    if you've not been in the Mattole, you cannot imagine.  

             4    We are in the heaviest rainfall belt in the world.  In 

             5    Honeydew and in parts of our watershed we get regularly 

             6    about 150 inches a year.  Right where I live we get 90.  

             7         If you have some concept of what that does to 

             8    anything, you would get the idea that most of what is 

             9    going in that river is natural.  And there are some road 

            10    problems, and those road problems have to do with 

            11    development as well.  Every time we add layers of 

            12    regulations and make life more difficult for ranchers, 

            13    we lose more ranchers.  

            14         Raising arbitrary TMDLs serves not science based 

            15    purpose.  The river is in great shape already and heals 

            16    itself very well from landslides, floods, et cetera.  

            17    It's been doing it forever.  

            18         Secondly, I believe that it is important for the 

            19    Board to recognize the significant conflicts of interest 

            20    that exist within the efforts to get TMDL listing for 

            21    the Mattole.  The TMDL backers make their livings on 

            22    stream restoration, quote-unquote, projects.  An 

            23    additional layer of regulation opens the door to more 

            24    surveys, more proposals and more litigation.  Although I 

            25    would insert more taxpayer money.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         This is much the same coalition that unsuccessfully 

             2    pushed the sensitive watershed designation with the 

             3    Board of Forestry.  Please keep this fact in mind when 

             4    considering this matter.  Without a doubt the biggest 

             5    threat to the river is loss of summertime flow.  And he 

             6    goes on to say that each new family that moves in taps 

             7    another spring or puts another pump in the river.  So 

             8    there needs to be some address, of course, to that 

             9    problem which is not one that is your Board's situation.  

            10    But that is not -- doesn't have to do with 

            11    sedimentation, doesn't have to do with pollutants.  It 

            12    has to do with regulations of another type entirely.   

            13         Thank you.  

            14              CHAIRMAN BAGGETT:  Thank you.  

            15         That sounds like we have enough information for the 

            16    next round, providing we get a copy of the report.  We 

            17    won't open this.  We will keep it.  We appreciate your 

            18    making the trip.  

            19              MR. MCWHORTER:  Thank you.

            20              CHAIRMAN BAGGETT:  Alan Levine, Coast Action 

            21    Group, and then Craig Bell.  Try to give you guys a 

            22    heads up.  

            23              MR. LEVINE:  My name is Alan Levine.  I 

            24    represent the Coast Action Group, Point Arena, 

            25    California.  Distance away.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         I want to say Craig's done a really good job and 

             2    his assistants have worked hard too and as you do also, 

             3    and so do I.  I want you to know that I am a TMDL 

             4    backer.  And I don't make a living.  There is no money 

             5    in this for me.  But I know a lot what's going on in 

             6    TMDL.  I have read -- rather than the Mattole and the 

             7    other rivers I am going to talk about now, I have read 

             8    680, plus another a hundred administrative records on 

             9    timber harvest plans to the current date.  I am dealing 

            10    with them, and I can see what is happening, and I have 

            11    some experience from which I speak.  

            12         I submitted additional information to the file on 

            13    the listings of the five or six rivers for temperature 

            14    and I want you to know I support the listings, but there 

            15    is more than sufficient evidence of what I just learned 

            16    today would be termed acute and chronic of nature in 

            17    that the measurements taken over from four to seven 

            18    years, depending on the rivers.  There are a lot of 

            19    hits, many in the lethal range.  I just wanted you to 

            20    know there is a lot of scientific information to back up 

            21    this evidence of what the ranges are.  

            22         There's been some complaints that the thresholds, 

            23    like 14.5, aren't significant.  But I want you to know 

            24    the number of hits in the range of near sublethal and 

            25    lethal are significant.  It is not just a small number; 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    it is about half of all the hits in one river.  I think 

             2    one was Redwood Creek -- not Redwood, Ten Mile -- excuse 

             3    me, Mad River, all the hits were lethal for a long 

             4    period of time, not just one day; MWAT, mean weekly 

             5    average temperature.  

             6         With coho when you get to the range of about 17 

             7    degrees or 62 Fahrenheit, studies have shown, other than 

             8    Sullivan, Ambrose and Hines and also Hardwell Welch, 

             9    shows that 90 percent of coho there is 9 percent absence 

            10    when you get to temperatures of 17 to 18 degrees, there 

            11    is almost complete absence.  And many, many of these 

            12    temperatures were in those ranges.  I don't think I need 

            13    to go through all the problems that temperatures cause 

            14    with fish.  

            15         I will let you know, though, that when you have 

            16    streambeds that are filled with sediment, and in the 

            17    case of the Mattole, where a lot of water is running 

            18    subsurface in the summer that leaves very little water 

            19    on the surface for fish, you have -- your holes are 

            20    filled in and the habitat is reduced and the fish are 

            21    either subject to long-term lethal or sublethal stresses 

            22    and/or forced into areas where they congregate and 

            23    subject to predation and disease.  

            24         I want to say another thing about what the listing 

            25    does for me.  When it says listed 303(d) in a timber 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    harvest plan, it puts me in a better position to 

             2    negotiate for better amendments or modifications or 

             3    mitigations in the THP.  And it also makes CDF in their 

             4    initial review and their subsequent reviews do a better 

             5    job of mitigating the plan on their own, even if I 

             6    wasn't there to say anything.  There is direct benefits 

             7    just from the listing before you even get to the TMDL.  

             8    And I think that is worthwhile.  I think that you should 

             9    know that there are these benefits.  And at that time 

            10    that point you start making progress to meeting water 

            11    quality values that needed to be protected and 

            12    beneficial uses.  

            13         I want to leave with you by saying that the harder 

            14    -- in the area of timber harvest plans the harder you 

            15    push on CDF to do a good job, the better job they will 

            16    do and TMDLs are another way to get there.  

            17         Thank you. 

            18              CHAIRMAN BAGGETT:  Thank you.  

            19         Craig Bell and then Vivian Bolin.

            20              MR. BELL:  Yes.  Chairman Bagget, Members of 

            21    Board, I thank the opportunity to make comment.  My name 

            22    is Craig Bell.  I live in Gualala, California.  I am 

            23    here representing the Salmon Restoration Federation and 

            24    the Northern California Association of River Guides, and 

            25    today we join with the Sierra Club, PCFFA, Cal Trout and 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Trout Unlimited in supporting a temperature listing 

             2    addition for the Gualala big river, Russian, Mad, Ten 

             3    Mile Rivers and Redwood Creek.  We do support Coast 

             4    Action Group's detailed comments.  I don't need to go 

             5    into -- they detailed the MWAT exceedances in each 

             6    stream.  This should be a much simpler decision for this 

             7    Board than the 1.9 percent exceedance when you are 

             8    dealing with other subbasins.

             9         Temperature monitoring is very straightforward.  It 

            10    is done by computer readable devices and the cited 

            11    studies are supported with thresholds.  And coho salmon 

            12    are sort of the watch species in these rivers, and 

            13    temperature is probably the most important parameter for 

            14    them.  Many of these rivers are down to one or two 

            15    subbasins that have coho remaining.  And I would equate 

            16    it to an engine that is operating on one or two 

            17    cylinders as opposed to eight or ten or 12 cylinders.  

            18    We cannot expect recovery to come from just two 

            19    subbasins out of whole systems and even parts of two 

            20    subbasins out of whole watersheds that now support coho.  

            21    We cannot expect that to lead to recovery of coho salmon 

            22    and beneficial uses in whole watersheds.  

            23         Main stem rearing areas, after hot water 

            24    contributions added up are considerably reduced, and we 

            25    are now down to shifts in species composition from 




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             1    salmonids to stickleback and roach.  Temperatures are a 

             2    real problem; they create thermal barriers which prevent 

             3    up and down migration of fish.  Stressed fish are much 

             4    more vulnerable for predation, and they arrive in the 

             5    ocean in a smaller size, much less able to complete.  

             6         These listings will be an important component in 

             7    the short- and long-term recovery planning under CSEA 

             8    and ESA.  And the goal is to expand the suitable  

             9    temperature ranges.  

            10         I can say that the fishing and environmental 

            11    community will work hard to bring needed restoration 

            12    resources to landowners in the state to address 

            13    implementation plans.  

            14         Thank you very much.  We ask that you support your 

            15    staff.  

            16              CHAIRMAN BAGGETT:  Thank you.  

            17         Vivian Bolin and Don McEnhill.

            18              MS. BOLIN:  I am Vivian Bolin, watershed 

            19    conservation director with the Pacific Coast Federation 

            20    of Fishermen's Associations.  And I fished commercially 

            21    for salmon out of Fort Bragg from 1974 through 1994.  In 

            22    those days we started April 1st and fished all the way 

            23    through September.  Worked on the boat all summer.  Went 

            24    up and down the coast.  If you go to Fort Bragg in July 

            25    now to Noyo River it's practically a ghost town because 




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             1    of the ocean closures for sport and commercial fishing.  

             2         We support the staff in their recommendation and we 

             3    support the comments of Coast Action Group, the written 

             4    comments, too, that were submitted to you.  Every year 

             5    we give up ocean harvest that would be available to us 

             6    in order to send more fish back to the rivers.  The 

             7    North Coast rivers, they typically run into a lack of 

             8    deep pools and cold enough temperatures to survive for 

             9    especially the coho who have to live in the river for a 

            10    year as babies.  And I'm sure you've heard about some of 

            11    the high temperature problems that have been very 

            12    extreme lately.  But they've been ongoing for years.  

            13         So we have given up coho harvest since the mid 

            14    1980s, well before the listings.  And we also gave 

            15    hundreds of dollars each year with our permits to the 

            16    salmon stamp fund for restoration before we even find 

            17    out what kind of a season we would get for the year.  

            18         I support the dedicated work of many restoration 

            19    workers who'd rather be fishing.  

            20         And thank you for your time today.

            21              CHAIRMAN BAGGETT:  Thank you.  

            22         And Gregory Broderick.  

            23              MR. MCENHILL:  Chairman Bagget, Members of the 

            24    Board, my name is Don McEnhill with Russian RiverKeeper. 

            25    I am also here representing my friend and colleague, 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Brenda Adelman, who did end up with jury duty today.  We 

             2    have two letters.  The comments are almost exactly the 

             3    same.  So I am just going to read one of the two.  

             4         First off, we support the staff and State Board's 

             5    listing of temperature for the Russian River at five 

             6    North Coast rivers.  We support Alan Levine's comments 

             7    as well as Craig Bell's on that.  

             8         We also support the listing of the Laguna De Santa 

             9    Rosa for dissolved oxygen and its removal from the TMDL 

            10    completed list.  We strongly support this listing.  

            11         Regarding the placement of Laguna De Santa Rosa on 

            12    the monitoring list for nutrients, we would certainly 

            13    prefer that it be on the full list, but after 

            14    consultation with Craig Wilson and Region 1 staff, we 

            15    feel comfortable enough to support the monitoring 

            16    listing with certain reservations.  It is understood 

            17    that Region 1 doesn't have the money to undertake this 

            18    study regarding nutrients in the Laguna.  The City of 

            19    Santa Rosa has stepped forward to offer funding, and we 

            20    certainly applaud those efforts.  We certainly have a 

            21    lot of reservations with the dischargers controlling the 

            22    study.  

            23         In our consultations with Craig and the Region 1 

            24    staff, we recommended to them and we strongly urge that 

            25    the study include -- any study of nutrients include 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    phosphorous as a lending nutrient, but also a committee 

             2    of stakeholders be established to allow many inputs into 

             3    the studies, the monitoring programs, the study designs 

             4    and that they be jointly overseen by the Regional Board 

             5    and by the City of Santa Rosa.  A similar process took 

             6    place with regard to nutrients earlier, and there still 

             7    is a nutrient problem.  So we argue for more 

             8    transparency in any effort by Santa Rosa to undertake 

             9    the nutrient studies.

            10         We also ask that the test samples be processed and 

            11    analyzed by an outside impartial lab in order to solve 

            12    this problem.  

            13         And thank you for your time.  

            14              CHAIRMAN BAGGETT:  Thank you.                

            15         Gregory Broderick. 

            16              UNIDENTIFIED AUDIENCE MEMBER:  I don't have 

            17    anything new.  

            18              CHAIRMAN BAGGETT:  With that, we have our 

            19    final suite here.  Dr. Kathleen Sullivan, et al.  I 

            20    guess it looks like et al.

            21              DR. SULLIVAN:  Thank you, Chairman Bagget, and 

            22    the Board.  My name is Dr. Kathleen Sullivan.  I am a 

            23    researcher who has spent my career working on the 

            24    effects of logging and various management activities on 

            25    the physics of stream temperature and also on the 




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             1    biology of stream temperature.  I am here to comment 

             2    today -- I now live in Humboldt County, and I am here to 

             3    comment today about the water temperature criteria; that 

             4    is after all the basis of temperature listing.  And part 

             5    of my work, along with some colleagues of mine, in the 

             6    year 2000 published a report that forms the basis for 

             7    some of the temperature criteria for justifying some 

             8    selection of temperature criteria for rivers in this 

             9    area.  

            10         And like any good scientist, I have -- in our 

            11    report we have some caveats about the use of that 

            12    information for temperature criteria.  So I just wanted 

            13    to make sure that the Board has some of the benefits of 

            14    those caveats as wells.  

            15         I would like to -- and I am not here to comment on 

            16    the particular listing of any river that may have been 

            17    put on the list for that.  

            18         First of all, I'd just like to emphasize and put 

            19    some context on what the temperature criteria are 

            20    because they are important.  And I do agree with my 

            21    previous speakers, that temperature is very important to 

            22    salmonids.  It is important to all fish, particularly 

            23    important to salmonids.  And coho are probably the most 

            24    sensitive of the species for a variety of reasons I 

            25    won't go into. 




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             1         Just to create some context, the effects of 

             2    temperatures are determined by the magnitude of 

             3    temperature in relationship to the duration of exposure 

             4    of the fish.  This is true for all fish, and each has a 

             5    range of temperature whereby they perform very well in 

             6    the middle of their range.  And as they drop off colder 

             7    or warmer from their range, they perform less well.    

             8         Salmon will die when they are exposed to 

             9    temperatures of 30 degrees which for you who aren't 

            10    adjusted to centigrade is about 86 degrees if they are 

            11    exposed to even a few minutes.  In the range from about 

            12    24 to 30 degrees or 75 to 86 degrees mortality is 

            13    function of the duration of exposure.  So you can get 

            14    mortality, but you have to have exposures of probably 

            15    hours to even days to get that.  

            16         Salmon have mechanisms to cope for short-term 

            17    exposures and potentially adverse temperatures.  There 

            18    does seem to be kind of a true, almost biological 

            19    threshold for temperature at about 22 C or 72 degrees 

            20    Fahrenheit, especially for coho.  In that range of 

            21    temperature response you tend to see behavioral changes, 

            22    stress measures and competition as they come together.  

            23    That is a pretty clearly recognizable boundary.  

            24         The research that we engage in, we were really 

            25    trying to explore the chronic.  Those would all be sort 




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             1    of acute effects, especially in the 24 degrees and 

             2    above.  The work that we were doing, we are trying to 

             3    explore the chronic effects of what happens to fish when 

             4    they are in a stream over a long period of time during 

             5    the rearing months from about April to about October in 

             6    our research.  So we focused in on growth effects during 

             7    that period of time.  Now it is important to recognize 

             8    that in the mid ranges of the temperature range for fish 

             9    the temperature actually becomes an asset, helping them 

            10    to grow better.  In fact, what we really would like to 

            11    see in rivers is temperatures that are falling near that 

            12    optimal for them in their range.  

            13         We used research conducted over the last 35 years 

            14    to develop an objective, quantitative approach to 

            15    predict the effects of temperature on the growth.  We 

            16    corroborated our model against observed growth of fish 

            17    in streams and with very good results, giving us 

            18    confidence.  We then used our model to predict growth of 

            19    fish given the temperature measured in the streams.  The 

            20    way we came up with a number that is actually used as 

            21    the threshold value in the objectives standards is we 

            22    said we don't really know how to pick the right number, 

            23    so what we will do is find the best temperature for 

            24    fish, predict their growth as if the streams spent all 

            25    of its time at the best temperature, the most optimal, 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    and then we will calculate the growth that would occur 

             2    in the regular stream with its particular temperature 

             3    profiles.  In some cases as previous speakers have said 

             4    they may be very warm and other cases they could be cold 

             5    or somewhere.  

             6         We calculated the difference between the predicted 

             7    growth at the optimal temperature and the optimal 

             8    temperature.  So it is really -- what we call that is 

             9    reduction from maximum growth due to the temperature.  

            10         So I would like to note that the 14.86 degree MWAT 

            11    temperature comes from arbitrarily picking a 10 percent 

            12    growth loss from the optimal conditions.  I emphasize 

            13    that this condition is a very, very good condition.  You 

            14    would probably not be able to detect this using 

            15    experimental -- even at experimental level population 

            16    tests.  So it is a very, very safe number.  I should 

            17    note that in our evaluation we found that no stream had 

            18    optimal temperatures all of the time for the fish from 

            19    the time they emerge from the gravels to the time they 

            20    meet the winter months.  And that about the best stream 

            21    we saw had a 5 percent growth reduction.  So the 10 

            22    percent limit is, in fact, should be noted as an 

            23    important caveat to note that, in fact, it is a very 

            24    good number for fish and would be kind of difficult to 

            25    actually ascertain that there is an impairment from some 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    sort of an experimental methodology.  

             2         It is a good criteria, though, for recognizing we 

             3    can at least model the impact, but we wouldn't 

             4    necessarily be able to identify it.  

             5         The only biological threshold is that lethal -- 

             6    that temperature around 22 degrees where we see changes 

             7    in behavior.  I would like to comment that while growth 

             8    is an important aspect of their life and it is also not 

             9    particularly clear from the scientific research how to 

            10    exactly pick an upper criteria number.  Is it 10 

            11    percent?  Twelve percent?  Thirteen or 14 percent?  

            12    There is no scientific research at this time that would 

            13    actually allow you to with confidence pick that lower 

            14    number.  

            15         I think that you could easily pick a number at 20 

            16    percent with great deal of confidence.  That is 

            17    important because the actual temperatures in stream, 

            18    that is a fairly big difference between what you might 

            19    arrive at and a 10 percent level or 20 percent level in 

            20    growth reduction.  It is somewhere between -- the 

            21    difference between 60 and 66 degrees.  Now that is 

            22    important because many streams and rivers in this region 

            23    are probably not necessarily going to be able to achieve 

            24    that temperature naturally, and trying to it is going to 

            25    be hard enough in other cases.  




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             1         I just wanted to point out that the selection of 

             2    that upper value for that impairment level is actually 

             3    fairly arbitrary and would make a difference.  There is 

             4    some -- it is really a policy choice.  I wanted to also 

             5    make a caveat that physical conditions of channels is 

             6    very -- it is going to be trying to tie some type of 

             7    criteria to position in watershed, probably makes some 

             8    sense, although it is difficult to do.  But when you are 

             9    trying to remove streams from the list once they are on 

            10    there is going to be fairly crucial because it is going 

            11    to be important to try to achieve that.  

            12              CHAIRMAN BAGGETT:  Thank you.

            13         Jim Brannif followed by Bernie Bush.  That is the 

            14    order.  

            15              MR. BUSH:  Jim Brannif stepped out.  He had to 

            16    take a phone call.  We move ahead.  I don't know if he 

            17    will be back or not.  

            18         Thank you, Mr. Chairman, Board Members.  Bernie 

            19    Bush, and I want to make some comment on the temperature 

            20    issue specifically.  And I represent Simpson Resource 

            21    Company.  

            22         First, I would like -- regarding Craig Wilson's 

            23    remarks earlier about industry comments being very late, 

            24    I would say I will apologize for our preoccupation with 

            25    the silviculture waiver issue late last year.  The North 




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             1    Coast Board hearing on that issue was December 10th.  

             2    The deadline for written comment here on this issue was 

             3    December 6.  But importantly I think we have been 

             4    involved in this issue and I have testified as early as 

             5    2001 when it was first brought in front of the Regional 

             6    Board, North Coast Regional Board.  

             7         I would point out that the Regional Board as of a 

             8    meeting early in 2001 is on record not to list as 

             9    temperature impaired, rather a watch list or a 

            10    monitoring list or whatever is appropriate at this 

            11    point.  Your workshop in June of last year, a number of 

            12    us testified --

            13              CHAIRMAN BAGGETT:  In May we had one here.

            14              MR. BUSH:  -- or in May.  It was the middle of 

            15    summer sometime.  And once again, I believe there was a 

            16    recommendation at that point not to list, that again 

            17    either a watch list or monitoring list would be 

            18    appropriate for --

            19            CHAIRMAN BAGGETT:  We were provided with a 

            20    substantial amount of data showing the temperature 

            21    impairments were above the criteria as set.  Now there 

            22    may be a debate about the criteria, but we were 

            23    certainly presented with a significant volume of 

            24    facts.  

            25              MR. BUSH:  And that is exactly our point.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1              CHAIRMAN BAGGETT:  You were here and saw it.  

             2              MR. BUSH:  I refer you to Dr. Sullivan's 

             3    comments and remarks which clearly state that the 14.8 

             4    number, which is used as a threshold to determine 

             5    listing, is really a better descriptive measure for an 

             6    optimal condition.  In other words, that is the perfect 

             7    world for a fish.  That is the perfect world, 14.8.  

             8    That, in fact, it is not a threshold over which a 

             9    listing of impairment is obligated.  It is the perfect 

            10    world.  I can't make that -- I want to state that, 

            11    emphasize that as clearly as possible.  

            12         There are other numbers, and she ran through the 

            13    list of numbers and that is where I think, quite 

            14    honestly, a monitoring list will be important, to better 

            15    be able to determine various segments and where they 

            16    are.  To illustrate I thought I would do a comparison in 

            17    our area.  We so often hear about the conditions in 

            18    managed watersheds versus pristine watersheds.  So I had 

            19    our fisheries biologist, and they checked data.  Over 

            20    the last five years in Prairie Creek, which is in 

            21    Redwood National State Park, the, quote-unquote, 

            22    pristine redwood old-growth stream on the North Coast.  

            23    And going back to again 1998, four out of those five 

            24    years the seven day moving average temperature exceeded 

            25    the 14.8 degree threshold.  I just use that as an 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    illustration.       

             2         Using the methodology as per the staff proposal at 

             3    this point, the pristine would have to be listed as 

             4    impaired, and I don't think that is intended here, I 

             5    really don't.  Ground temperature.  Temperature is a 

             6    terribly complex issue and as Dr. Sullivan pointed out. 

             7    And groundwater temperatures in our area of the region 

             8    are just under 13 degrees centigrade.  That is less than 

             9    two degrees from this 14.8.  

            10         I would suggest -- it suggests to me somewhat that 

            11    the only way we'll ever see MWATs at 14.8 is if we are 

            12    still around during the next glacial incursion.  That is 

            13    when water temperatures would come close to 14.8 degrees 

            14    on average.  

            15         I think important, most importantly, given the 

            16    regulation that follows a listing and the social, legal 

            17    and economic impacts to a landowner and given 

            18    Dr. Sullivan's remarks about the appropriateness of 

            19    using the optimal level as a threshold to define 

            20    impairment, I want to urge you to set aside the listings 

            21    of these water bodies, at least the ones in the northern 

            22    part of the region that I am most familiar with, but 

            23    quite honestly the 14.8 was used throughout the region.  

            24    I would set aside them all at this point and include 

            25    them on a watch or monitoring list as per the North 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Coast Regional Board recommendation last year and again 

             2    this past summer.  

             3         We have, I think specifically with the -- the neat 

             4    thing about a monitoring list for temperature is we have 

             5    thousands of monitoring locations throughout large 

             6    portions of the state.  We can address the temperature 

             7    issue in segments, and I think I have heard and I know 

             8    you are very supportive, Chairman Baggett, of monitoring 

             9    and science driving these issues.  And we have got a lot 

            10    going in that regard.  

            11         Thank you very much.  

            12              CHAIRMAN BAGGETT:  Thank you.  

            13         Peter Rebar.  

            14              MR. REBAR:  Chairman Baggett, Members of 

            15    Board, my name is Peter Rebar. I am representing 

            16    Campbell Kimberland Management.  We manage property for 

            17    Hawthorne Timber Company in the Fort Bragg area.  I just 

            18    wanted to say that I totally support both Kathleen 

            19    Sullivan and Bernie's discussion about the threshold 

            20    issue.  So I am not going to belabor that.  

            21         We did submit a letter dated June 14th, 2002, in 

            22    response to a solicitation for water quality data and 

            23    information.  In that letter we basically outlined our 

            24    support for the Regional Board's decision to put these 

            25    water bodies on a watch list.  And so today I would once 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    more support that method of putting it on a, I guess a 

             2    monitoring list is what the phrase is currently, so we 

             3    would urge you to do that.  

             4         Because this whole issue of water monitoring first 

             5    came before the Regional Board we knew it was going to 

             6    be a very important issue for us.  And so we 

             7    commissioned a report that is just about to its final 

             8    draft stage and prepared by a consulting -- an 

             9    environmental consulting firm.  The title of this white 

            10    paper is Stream Temperature Indices, Thresholds and 

            11    Standards Used to Protect Coho Salmon Habitat, a Review.  

            12         And just to give you a few highlights of some of 

            13    the conclusions is that -- first conclusion is there is 

            14    a lot more study needed, and these have to be focused 

            15    field studies that control, for example, juvenile 

            16    feeding, stream size and habitat characteristics to 

            17    assess the degree to which application of a MWAT 

            18    threshold can protect juvenile coho salmon from 

            19    temperatures that cause direct mortality or immigration.  

            20    There is some discussion to further evaluate the 

            21    available data, to analyze those relationships between 

            22    MWAT and long-term sublethal temperature patterns in 

            23    Northern California and to compare those temperature 

            24    characteristics in Washington versus the Northern 

            25    California streams.           




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                              CAPITOL REPORTERS (916) 923-5447             

             1         Also, there is an issue of a lot to do with the 

             2    physiology, and a lot of it has to do with what is 

             3    termed bioenergetic ecology.  Some of the 

             4    recommendations that result out of this issue is 

             5    determine the bioenergetic ecology of juvenile coho in 

             6    Northern California, including seasonal variations in 

             7    food availability and seasonal growth patterns.  And 

             8    some of these subsidiary questions that might be 

             9    considered and needs to be considered is the MWAT index 

            10    related to summer growth of juvenile coho salmon in 

            11    Northern California streams.  So there is a lot of 

            12    questions out there that we need to put some -- a lot of 

            13    effort into.  

            14         As Mr. Bush stated, we have been monitoring for 

            15    temperatures since 1993.  And all our data has been 

            16    available and a lot of it has been used for these 

            17    determinations.  And if you take the issue that Kate 

            18    said and use some, what we believe is a more reasonable 

            19    threshold, you will see that the exceedances are very 

            20    low.  So we urge you to put them to the monitoring 

            21    lists, specifically Ten Mile River, Big River and the 

            22    other coastal watersheds.  

            23         Thank you very much.  

            24              CHAIRMAN BAGGETT:  Thank you.

            25         Jim Ostruwski.




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                              CAPITOL REPORTERS (916) 923-5447             

             1              MR. OSTRUWSKI:  Good afternoon, Chairman 

             2    Bagget and Members of the Board.  I am Jim Ostruwski.  I 

             3    am the timberland manager for Timber Products Company, 

             4    but today I am here as the Chairman of the Board for the 

             5    Institute for Forest and Watershed Management.  And we 

             6    are an institute, a research cooperative institute 

             7    through Humboldt State University Foundation dedicated 

             8    to cooperative research for landowners or government 

             9    agencies and the university system.  

            10         Part of the letter that was submitted by CFA was a 

            11    copy of the report that our institute, which was 

            12    formerly known as the Forest Science Projects, our 

            13    report on a regional assessment of stream temperature 

            14    across Northern California and the relationship to 

            15    various landscape level and site-specific attributes.

            16              CHAIRMAN BAGGETT:  This is in the record?

            17              MR. OSTRUWSKI:  This was in the record, and I 

            18    believe you said that you'd already seen that 

            19    previously.  And this was done or completed in year 

            20    2000.  It was an eight-year process of data collection 

            21    of over 1000 temperature sites where continuous 

            22    temperature monitoring all through the North Coast, from 

            23    Fort Bragg, Mendocino, Sonoma County, all the way up 

            24    through the Klamath River, junior river basins, up into  

            25    Siskiyou County.  So it was a huge effort to try to look 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    at a large scale view of temperature and the potential 

             2    impacts of various both land management as well as 

             3    natural variables that would affect temperature.  

             4         The data was collected by landowners, by resource 

             5    conservation districts, government agencies, school 

             6    systems, U.S. Forest Service, Park Service, Fish and 

             7    Game and many others contributed to the data set.  So it 

             8    is one of the most extensive data sets in the country 

             9    and is recognized as quite a report as far as the amount 

            10    of data and the regional scope of it.  

            11         Some of the conclusions or observations that the 

            12    report made that I think are germane to this topic 

            13    today, particularly in response to the listing, both the 

            14    listing of temperature and that are important as regards 

            15    to the threshold and whether or not those thresholds can 

            16    ever be met by streams in our region.  This is an 

            17    important point.  Because if we're shooting for a goal 

            18    that is unachievable or never was achievable or never  

            19    was achieved, then what are we doing here?  We are 

            20    setting ourselves up for failure.

            21         One thing that -- essentially four things that I 

            22    would like to point out or five things to point out from 

            23    our report.  It is in the record and I would hope that 

            24    the staff did pay attention to these points, so I am 

            25    going to reiterate them.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1         First of all, local ambient air temperature is the 

             2    air temperature that greatly influences stream water 

             3    temperature by increasing in the interior or decreasing 

             4    in the coastal fog belt water temperatures.  

             5         Another point is that stream water temperatures 

             6    increase with increasing distance from the watershed 

             7    divide.  In other words, you can't have a single 

             8    temperature for a whole stream.  You just naturally 

             9    change.

            10              CHAIRMAN BAGGETT:  Let me interrupt for a 

            11    minute.  The challenge here is not the data on 

            12    temperatures.  All the data is in there.  That doesn't  

            13    seem to be a controversy here.  It is what the 14.8 

            14    centigrade number set by the Regional Board in their 

            15    Basin Plan is -- or whatever that number, the number 

            16    seems to be the issue that we are using.  

            17              MR. C.J. WILSON:  This study is a good one.  I 

            18    predict we would agree with your five points on this 

            19    study.  

            20              CHAIRMAN BAGGETT:  It sounds like -- I am 

            21    trying to cut through what is the real issue.  It 

            22    doesn't seem like it is the temperature numbers on the 

            23    monitoring data.  

            24              MR. C.J. WILSON:  Temperature is extremely 

            25    variable.  It depends on all the factors that are 




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             1    presented in this report.  I really appreciate the 

             2    presentation by Dr. Sullivan.  That study from 1990 was 

             3    a fabulous effort, and she very carefully lays out the 

             4    risk assessment process that they went through.  Some of 

             5    that process you have to make choices on how to use 

             6    these data.  You have to decide if it is 10 percent or 

             7    12 percent growth or 10 or 20.  The questions go on.  

             8    You have to make a choice.  The Regional Board picked 

             9    that report up.  It is accepted by agencies like NMFS, 

            10    the Regional Board.  We think it is a pretty good 

            11    effort.  

            12         The Regional Board did just -- just did not use 

            13    14.8.  They used these higher thresholds as well.  And 

            14    we reported in our staff report like for the Gualala 

            15    River 15 locations were higher than the 24-degree value, 

            16    which was a lethal concentration.  That is a big deal to 

            17    me.  Yes, they mentioned the 14.8 in here, but they 

            18    mention a variety of factors.  These are good listings 

            19    and this is an important problem on the North Coast.  

            20         I want to turn to David Leland from the Regional 

            21    Board staff --

            22              CHAIRMAN BAGGETT:  Let's finish the comments 

            23    from the forestry folks.  I am trying to understand.  I 

            24    want to narrow it down.  It sounds like the issue -- all 

            25    I am trying to get at right now is the issue is what 




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             1    number are we using, not the amount of data out there 

             2    and not whether this data that Coast Action gives us or 

             3    your data, the data's showing -- telling us your number. 

             4    So we aren't arguing data or monitoring collection.  We 

             5    are arguing what number is the appropriate number, and 

             6    that number was set by the Regional Board.  That is all 

             7    I want to clarify.  

             8              MR. C.J. WILSON:  That number was used as a 

             9    guideline to evaluate whether there are impacts on 

            10    beneficial uses.

            11              CHAIRMAN BAGGETT:  Who set the number?

            12              MR. C.J. WILSON:  The Regional Board staff 

            13    used that number, selected that.  It wasn't adopted as a  

            14    water quality objective or standard.

            15              CHAIRMAN BAGGETT:  The Board didn't establish 

            16    it like they do a Basin Plan or anything else?

            17              MR. C.J. WILSON:  That is correct.  

            18              MR. OSTRUWSKI:  Thank you.  

            19         Another -- a point with this temperature is that 

            20    granted we found high temperatures, a wide variety of 

            21    temperatures.  In many cases these temperatures would be 

            22    optimum; many times that could be near lethal or 

            23    suboptimum.  But the idea is that you are not going to 

            24    find a single temperature throughout a stream, and many 

            25    cases the temperatures are not related to land 




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             1    management activities.  You get down to unshaded 

             2    estuaries area below elevation.

             3              CHAIRMAN BAGGETT:  That is what is 

             4    incorporated into -- you will figure all that out once 

             5    you look at the watershed, what sections, what reaches. 

             6              MR. OSTRUWSKI:  True, but once it is listed it 

             7    is saying it is impaired throughout its length, and that 

             8    even when you have regions that are not at any kind of 

             9    impairment level, it implies that that whole watershed 

            10    is impaired.  

            11         So I guess in summary, and he is right, and many 

            12    places historically, another point, as we look at 

            13    historical data many places where temperatures 

            14    historically were over 20 degrees.  So in summary I will 

            15    just to finish up here, there is a wide variety and no 

            16    single stream temperature is going to be achievable and 

            17    it is not a realistic goal to try to set in a TMDL.  

            18    They have to try to develop a TMDL to meet that.  We are 

            19    going to be running around in circles.  We urge you to 

            20    really look at this report again and take it for 

            21    information, a lot of science, a lot of monitoring over 

            22    ten years across a wide area and consider whether or not 

            23    it is appropriate at this time to delist.  

            24         Thank you very much.  

            25              CHAIRMAN BAGGETT:  Dave Bischell, the last 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    card.  

             2              MR. BISCHEL:  Thank you, Mr. Chairman, Members 

             3    of the Board.  I know that you have had a long day and a 

             4    long year and clearly we have had a lot of issues.  

             5              CHAIRMAN BAGGETT:  We are just starting.     

             6              MR. BISCHEL:  On this particular issue -- I 

             7    guess a long two years.  I think there is not a question 

             8    here about the data.  We have voluntarily -- the 1,090 

             9    stations continuous monitoring for nine years has been 

            10    data that has been collected and funded by individual 

            11    landowners across the north state.  Nor do we, I don't 

            12    believe, have a problem with the evaluation by CDF in 

            13    terms of hill slope monitoring and taking a look at hill 

            14    slope activities and the relationship there, because I 

            15    think one of the issues we are talking about is the 

            16    relationship of management here as well.  Under that 

            17    particular analysis, 300 timber harvest plans 

            18    statistically a stratified random sample identified the 

            19    condition of our watersheds and canopies which were in 

            20    extremely good condition, over 80 percent canopy closure 

            21    in those areas post harvest.  

            22         I don't think we are here arguing about that 

            23    particular issue.  If you take a look at Dr. Sullivan's 

            24    study, she has identified a range, a general range in 

            25    which coho thrive.  That range is something between 14.3 




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             1    and 18 degrees.  And then ranges where you start having 

             2    systemic and other type impacts on the species outside 

             3    of that.  

             4         When you take a look at the decision to list as 

             5    water quality impaired, I think the key difference here 

             6    is whether or not you pick the middle of that range and 

             7    identify it as a threshold of not to exceed which then 

             8    defines impairment, or you identify actually the range 

             9    of that species in terms of its optimum growth and its 

            10    optimum living capability and look at the overwhelming 

            11    amount of data that we have.  There are points in the 

            12    lower watersheds most specifically that exceed that 

            13    particular range.  But the vast majority of the data, if 

            14    you take a look at the stream data for those areas where 

            15    we are managing, those stream segments fall within that 

            16    14.3 to 18 or 19 degree range.  As a result, I think 

            17    that the underlying issue of establishing a guideline 

            18    which is not a part -- I think that was an important 

            19    part here.  It is not a part of the water quality 

            20    objective as defined by the North Coast Board.  That is 

            21    a narrative standard that identifies a board described 

            22    objective with not too exceed five-degree limitation on 

            23    variability from background.       

            24         The North Coast Board, after taking staff's input, 

            25    after taking input from us, the research that was done 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    and the underlying data, Dr. Sullivan's data, made a 

             2    determination to recommend to you that these streams be 

             3    put on the monitoring list.  We certainly agree with 

             4    that decision and would ask that you put these streams  

             5    on a monitoring list and that, in the process of doing 

             6    so, you take a look at this standard that is out there 

             7    and recognize what may or may not be more appropriate in 

             8    terms of a not-to-exceed threshold from an impairment 

             9    perspective.  

            10         I also would like to point out that even to the 

            11    north in Washington their standards are substantially 

            12    higher for targets and BMPs in those states.  

            13         Thank you.  

            14              CHAIRMAN BAGGETT:  Thank you.  

            15         At this point we don't need to close the public 

            16    comment.  Just it is closed.  Let's figure out what we 

            17    are going to do.  

            18         On the last issue is a tough one.  There is no 

            19    question there are problems up there with salmon.  I 

            20    think we made the decision based on the volumes of data 

            21    and applying the standards which I now realize the staff 

            22    set on the North Coast.  If you take that standard and 

            23    apply it, you can look at these results.  But, I guess, 

            24    it would be if we could list -- I guess the direction to 

            25    the Regional Boards themselves to evaluate Dr. 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Sullivan's study and staff's criteria and set some more 

             2    specific criteria because, like I said, everybody 

             3    realizes we will be back here in the not too distant 

             4    future.  Data doesn't sound like it's a problem; it's 

             5    how you apply it.  And I think we've got a decision now.  

             6              MEMBER SILVA:  Can you put on the monitoring 

             7    list as recommended or would you want to list?  

             8              CHAIRMAN BAGGETT:  Based on the current 

             9    criteria, I think staff analyzed and if the evidence is 

            10    there, then it should be listed, right, based on --

            11              MEMBER CARLTON:  May I ask a question of Craig 

            12    and/or the Region 1 staff?  The 14.8 criteria that has 

            13    been used in this listing, did the determination of that 

            14    number include consideration of the research done by Dr. 

            15    Sullivan and the other report?

            16              MR. C.J. WILSON:  It was based on the study 

            17    performed by Dr. Sullivan; it was based on that risk 

            18    assessment.  And please, the 14.8 was not the only value 

            19    used.  There were other values used, including this 

            20    24-degree value which is quite high where lethality 

            21    occurs.  It is not just one number.  It is not just the 

            22    lowest number.  It's highest numbers that are of the 

            23    most concern.  

            24         David, may I turn to you.  

            25              CHAIRMAN BAGGETT:  Just knowing some of the 




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             1    rivers up there, they do change radically from one upper 

             2    reach to the lower reach.  So one part could be impaired 

             3    and the other part not on the same watershed.  

             4              MR. LELAND:  My name is David Leland.  I am 

             5    with the staff of the North Coast Regional Water Quality 

             6    Control Regional Board.  The first point is absolutely  

             7    in terms of your last comment, Chairman Baggett.  There 

             8    is an enormous natural variability in these watersheds.  

             9    And the Forest Science Report documents some of that.  

            10    We are certainly not arguing that.  The issue is whether 

            11    there has been some impairment as a result of human 

            12    activity on the landscape.  That is the task that we had 

            13    in front of us, was to sort that out.  

            14         And to reiterate what Craig said, we did look at a 

            15    number of different thresholds.  They were screening 

            16    criteria is the way I would phrase them that we used as 

            17    part of this analysis in order to understand what the 

            18    data were telling us.  They are not water quality 

            19    objectives.  They are not part of the Basin Plan.  But 

            20    they are a way for us to look at data.  

            21         We compiled a number of different studies and 

            22    standards from the west coast, including standards that 

            23    are used in Oregon and Washington, including studies 

            24    done on the North Coast and including in the Mattole and 

            25    on the Mendocino Coast as well as Dr. Sullivan's study.  




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                              CAPITOL REPORTERS (916) 923-5447             

             1    Put those all together in order to come up with the new 

             2    screening criteria that we used.  So we really had a 

             3    weight of evidence here.  Dr. Sullivan's study was more 

             4    comprehensive and more rigorous and more detailed than 

             5    the others, so it may have seemed as if it got more 

             6    emphasis in the report.  We certainly thought it was a 

             7    good piece of work.  But there are other lines of 

             8    evidence that support using similar types of screening 

             9    criteria to look at the temperature data.  So it is not 

            10    based on one study or one number.  

            11              CHAIRMAN BAGGETT:  It appears you haven't done 

            12    every reach of every river.  It likes some of the 

            13    different reaches that are impaired.

            14              MR. LELAND:  There are a number of watersheds 

            15    where we had enough data in particular subalterns that 

            16    showed, based on screening criteria, that there was not 

            17    an impairment, so we excluded those portions of that 

            18    watershed.  For example, the North Fork of the Gualala.  

            19    There was a portion of the Ten Mile that were excluded 

            20    on basis of that.  So we were sensitive to this issue. 

            21    We were -- when we had adequate data to do that, we were 

            22    cutting out those portions that met those criteria.  

            23         I also wanted to say that the analysis of natural 

            24    variability, the accounting of that natural variability, 

            25    we think, is something that belongs in the TMDL 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    analysis.  It is very data intensive and requires a lot 

             2    of effort and can be sorted out quite effectively in 

             3    that context.  In fact, in order to test the listing 

             4    approach we went back and looked at a data set from the 

             5    Navarro River which had been previously listed for 

             6    temperature which we had completed a technical TMDL.  

             7    The results were the Navarro looked a lot like other 

             8    watersheds that were proposed for listing and the 

             9    analysis of the Navarro and the technical TMDL supported 

            10    the original listing for Navarro and indicated 

            11    temperature impairment, not everywhere in the watershed.  

            12    Obviously the watershed is a very complex thing.  There 

            13    are someplaces that are going to meet and someplaces 

            14    that won't.  And to reinforce the screening criteria 

            15    issue we don't think it makes any sense to propose a 

            16    single value as a water quality objective for a 

            17    watershed.  Watersheds don't behave that way.  They are 

            18    variable.  In the TMDLs we have used temperature ranges 

            19    as a way to interpret the data as targets and 

            20    indicators, not as water quality objectives.  And what 

            21    you see when you do that is that there is enormous 

            22    variability within a watershed.  But you also can see by 

            23    going through that kind of analysis is that there is 

            24    impairment and there is opportunity for substantial 

            25    improvement in these watersheds with respect to 




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             1    temperature.  

             2              CHAIRMAN BAGGETT:  Do you have any other?  

             3         I think it sounds like you will be sorting out the 

             4    details of this throughout the process.  

             5         You want to go down region by region to see if 

             6    there is any -- the list I have, I can tell you, the 

             7    trash TMDL issue is one unresolved issue.  Monitoring of 

             8    the --

             9              MEMBER SILVA:  I'm still uncomfortable listing 

            10    it, personally.

            11              CHAIRMAN BAGGETT:  Orange County trash, 40 

            12    miles of beaches.  

            13              MEMBER KATZ:  Sounds like a powerful 

            14    message.  

            15              CHAIRMAN BAGGETT:  I have no problem putting 

            16    it in the monitoring list.  I just -- if we start 

            17    listing every -- we didn't list the previous trash TMDL.  

            18    We inherited those from our predecessors.  L.A. beaches 

            19    are already there.  I mean, you will never be able to 

            20    delist the trash TMDL, is one of the challenges I have.  

            21    You will never have zero trash, anywhere, unless you 

            22    have zero people.  

            23         That is the only challenge I have if we start with 

            24    listing every water body up and down the state.  We can 

            25    go down to the Sacramento and we can do -- where do we 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    stop?  What criteria?  I'm not --

             2              MEMBER KATZ:  It's not a relative criteria in 

             3    that sense.  I understand the concern that maybe they 

             4    all need it, but that doesn't mean that the criteria -- 

             5    lower the standard for something like that.  That they 

             6    all meet it doesn't mean it is the wrong standard.  

             7              MEMBER CARLTON:  Mr. Chairman, in light of the 

             8    testimony we received today I do have some concerns and 

             9    consideration in the Orange County case.  In that I 

            10    believe they -- first of all, the evidence for the 

            11    decision to list was based on a single study.  Albeit, a 

            12    credible group conducted the study.  Some questions 

            13    about the nature of the trash that composed a lot of 

            14    what was found there.  And then the county having such a 

            15    aggressive program is to me a real offsetting factor 

            16    here.  

            17         So I can certainly be comfortable with changing the 

            18    listing designation to monitoring list in light of the 

            19    fact there is such an aggressive program and our listing 

            20    decision is based on a single study.  I think there are 

            21    permit functions and it will give us more data.        

            22                   CHAIRMAN BAGGETT:  I think there is a 

            23    consensus here.  We will change Orange County to 

            24    monitoring.  And I think I will give everybody an 

            25    opportunity to go back and have alternate studies.  




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             1         Region 5, only comment, we dealt with the Delta 

             2    Mendota.  The other one was Bill Jennings wanted some 

             3    information on a line in the Delta.  We should probably 

             4    ask Region 5 if they can provide him whatever is this 

             5    line he was asking for in that comment.  

             6         Region 6, we had one.  Hawiee.  We went through 

             7    that whole issue before.  And I think the real 

             8    challenge, as I recall, was the beneficial -- Rec-1 and 

             9    2 because you allow people to fish in your drinking 

            10    water reservoir.  If you didn't have fishing, it would 

            11    change the whole dynamic.  Maybe Michael or Craig, is my 

            12    recollection correct since I was the one who was here?            

            13              MR. LEVY:  There is Rec-1 beneficial uses.  

            14    There is fishing beneficial uses.  They are in the Basin 

            15    Plan, so they are water quality standards.  

            16              CHAIRMAN BAGGET:  If you eliminated those 

            17    beneficial uses?

            18              MR. LEVY:  Well, you have to go through the 

            19    basin planning process. 

            20              CHAIRMAN BAGGETT:  I understand.  

            21              MR. LEVY:  The question which Ms. Conboy 

            22    brings up is whether it is a water of the U.S.  We are 

            23    not going to know for some time what is a water of the 

            24    U.S. and what is not.  You don't need to make that 

            25    decision now.




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                              CAPITOL REPORTERS (916) 923-5447             

             1              CHAIRMAN BAGGETT:  I think we've already 

             2    determined we won't do that.  

             3              MR. LEVY:  You put a little asterisk on the 

             4    water saying you will determine that later.  

             5              CHAIRMAN BAGGETT:  We've done that a couple 

             6    times.  

             7              MR. C.J. WILSON:  That is currently the 

             8    recommendation.

             9              CHAIRMAN BAGGETT:  That is the recommendation 

            10    and unless LADWP wants to come back and change their 

            11    beneficial use, then you've got another challenge.  But 

            12    I don't even want to -- we have a beneficial use for 

            13    Rec-1/Rec-2 in fishing which has a standard, and I just 

            14    don't see any way around it as long as you've got that 

            15    use there and you have a criteria which we have to meet 

            16    and it is in conflict with DHS, and we let that one fall 

            17    where it falls.  That is my recommendation.  

            18         Anybody have any other thoughts?  

            19         Castro Cove.  We once said we would come back to 

            20    that one.  Because we have money committed and we have a 

            21    time schedule, but it was alleged that there really 

            22    isn't a time schedule.

            23              MR. C.J. WILSON:  Here is the situation that 

            24    we have.  Chevron/Texaco has committed to cleaning up 

            25    this toxic hot spot, this bad location with a lot of 




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                              CAPITOL REPORTERS (916) 923-5447             

             1    different chemicals.  They committed $16,000,000 to do 

             2    that.  There is a remediation plan that they have 

             3    developed with the Regional Board.  There is one point 

             4    that needs to be clarified, and that is where to store 

             5    these or where to deposit these, the polluted sediments.  

             6    That is the last thing that needs to be decided.       

             7         The Regional Board tells us they are going to issue 

             8    that remediation, that cleanup and abatement order, I 

             9    believe it is going to be, within a year.  

            10    Chevron/Texaco says they will implement -- begin 

            11    implementation of that order immediately.  

            12              MEMBER KATZ:  They won't contest the plan no 

            13    matter what it is?

            14              MR. C.J. WILSON:  They are on record saying 

            15    that.  I can't speak for them, of course.  

            16              CHAIRMAN BAGGETT:  What is on the agenda?

            17              MR. C.J. WILSON:  That I don't -- I don't have 

            18    it.  I don't think they have it scheduled for the 

            19    agenda.  

            20              MEMBER KATZ:  People helping people.  Trust 

            21    us.  If we are going to issue the order within a year, 

            22    and if it's challenged, then it would be at least 

            23    another year after that.  We are going to revisit it in 

            24    two, right?  

            25              MR. C.J. WILSON:  Fourteen months.  




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             1              CHAIRMAN BAGGETT:  So we put it on the 

             2    monitoring.  

             3              MEMBER KATZ:  Monitor or list?

             4              CHAIRMAN BAGGETT:  List, low priority.  

             5              MR. C.J. WILSON:  That is where we had it.

             6              CHAIRMAN BAGGETT:  A representation was made 

             7    when I did the hearing last spring that there was, in 

             8    fact, a time schedule and money committed.  If there, in 

             9    fact, is not a time schedule, just sort of a letter 

            10    saying we will do this and nothing happened since last 

            11    June --

            12              MEMBER KATZ:  What is a time schedule?  Is it 

            13    a ten-year schedule?

            14              CHAIRMAN BAGGETT:  It's not a time schedule by 

            15    the Regional Board, correct?  It is not enforceable time 

            16    schedule?

            17              MR. C.J. WILSON:  That is correct.  

            18              CHAIRMAN BAGGETT:  I would say let's just list 

            19    it.  That is not the bargain and what was represented to 

            20    this Board, that there was a clear time schedule with 

            21    money set aside.  

            22              MEMBER CARLTON:  I would suggest list it with 

            23    a low priority.  It doesn't enforce any year term 

            24    objection on the listing.  

            25              CHAIRMAN BAGGETT:  They can come back with a 




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             1    time schedule.  

             2              MEMBER KATZ:  Enforceable time schedule.  

             3              CHAIRMAN BAGGETT:  Any other ones that anyone 

             4    else had?

             5              MEMBER SILVA:  L.A., the big one.  

             6              CHAIRMAN BAGGETT:  I don't know if we are 

             7    going to resolve this one now.  My other option would be 

             8    if Region 9, EPA -- Dave's gone.  That's too bad.  They 

             9    like to add to our list.  Likewise, seems to me they 

            10    should be glad to delist from our recommendation saying, 

            11    look, you didn't meet the criteria and based on 

            12    information provided you --

            13              MR. C.J. WILSON:  We have pulled all the 

            14    letters that were sent to us on these water bodies by 

            15    L.A. County Department of Public Works.  We have gone 

            16    through the Regional Board's fact sheet to us.  We have 

            17    the documents that were in the record.  And what we have 

            18    in the record is the L.A. County Department of Public 

            19    Works 1994 to 2000 monitoring report.  I talked to T.J. 

            20    Kim, and I will let him speak for himself.  What he told 

            21    me was they have never attached these data, these 

            22    newdata to anything they have sent to us.  

            23              CHAIRMAN BAGGETT:  Yet it is all in the file. 

            24    That is one of the problems with this process.  They are 

            25    in the file of the Regional Board because they are 




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             1    required to provide this information.  But they don't 

             2    know to put it in this file.  

             3              MR. C.J. WILSON:  I don't have access to any 

             4    of that information.  

             5              CHAIRMAN BAGGETT:  I know that.  I'm just 

             6    talking about a pragmatic -- I can understand how one 

             7    could get confused out there.  Both sides, the 

             8    environmental side and the discharger side.  We're 

             9    confused.  I'm just trying to make sure.  Next time 

            10    around so we don't have a choice based on that to 

            11    continue with the way it is.  I guess we can put a 

            12    footnote.  If, in fact, this information is in the 

            13    record, they can provide it to Region 9 EPA, let them 

            14    make a determination of their own, delist it.  They can 

            15    do that.  That is in their purview.

            16              MR. BISHOP:  Be aware that if we start doing 

            17    the TMDLs for the L.A.-San Gabriel River we are not 

            18    going to move forward with the new data in the last few 

            19    years, shows that there is delistable.  We just make 

            20    that recommendation to the TMDL and move on.  We don't 

            21    need the work.  

            22              CHAIRMAN BAGGETT:  As long as there is a 

            23    discussion between the County and your staff.

            24         North Coast, temperature issue.  I think it sounds 

            25    like -- I would be more comfortable if I knew the 




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             1    Regional Board was actually involved.  Normally, do not 

             2    Regional Boards set these criteria, North Coast?  Most 

             3    criteria are set in a Basin Plan or by some action of 

             4    the Board, itself?

             5         This is timber, nothing is quite normal.

             6            MR. C.J. WILSON:  In this example, in this 

             7    situation the Regional Board is interpreting their 

             8    narrative water quality or the staff is.  They used the 

             9    Sullivan study, plus the other things that David talked 

            10    about.  

            11            CHAIRMAN BAGGETT:  We could ask the Regional 

            12    Board to go back and actually adopt numeric standards, 

            13    if you want it.  In the meantime we only have the 

            14    interpretation of the narrative.  We can ask them to 

            15    examine whether numeric standards are appropriate.  It 

            16    sounds like they might be, to make it real clear in two 

            17    years whether sections are listed or delisted.  If you 

            18    have clear standards then we have something we can talk 

            19    about.  Floating standards.  

            20              MS. ETTER:  Can I --

            21              CHAIRMAN BAGGETT:  I know you came a long way.  

            22    If it is real brief.  And for the next round we will 

            23    make sure staff has that new report and that will be 

            24    included.  We aren't going to make any changes in the 

            25    recommendations today and opening the record for more 




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             1    data won't help us in this listing that we are going to 

             2    finish today.  But you certainly will put that -- I 

             3    guess preload staff for the next record which we will be 

             4    starting shortly.  You will be assured it is in there, 

             5    so when we come around to revisit this issue.  So 

             6    nothing for Mattole from where you are.  We didn't do 

             7    more to you, how's that.

             8         Anything else?  

             9              MEMBER KATZ:  I will move all except Region 5.  

            10    I will move all of the regions except Region 5 as 

            11    modified by the Chair.  

            12              MEMBER SILVA:  Second.

            13              CHAIRMAN BAGGETT:  Motion to second.

            14         All in favor. 

            15         Motion carries unanimously.

            16         On Region 5?

            17              MEMBER KATZ:  I move Region 5.  

            18              MEMBER SILVA:  Second.  

            19              CHAIRMAN BAGGETT:  All in favor.  

            20         Three ayes and Gary abstained.     

            21         Any other business to come before the Board?

            22         Consent calendar, fees and regs. 

            23              MEMBER KATZ:  Move.

            24              CHAIRMAN BAGGETT:  Is there a second?  

            25              MEMBER SILVA:  Second.




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             1              CHAIRMAN BAGGET:  All in favor.    

             2         Motion carries on the consent calendar and what 

             3    else, the fees.  We just adopted them.  

             4         Is there anything else? 

             5         If not, Craig and all your staff, thanks again.  

             6                 (Board adjourned at 5:15 p.m.)

             7                           ---oOo---

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            25    





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             1                     REPORTER'S CERTIFICATE

             2    

             3    

             4    STATE OF CALIFORNIA             )
                                                  )    ss.
             5    COUNTY OF SACRAMENTO            )
                  
             6    

             7    

             8         I, ESTHER F. SCHWARTZ, certify that I was the 

             9    official Court Reporter for the proceedings named 

            10    herein, and that as such reporter, I reported in 

            11    verbatim shorthand writing those proceedings;

            12         That I thereafter caused my shorthand writing to be 

            13    reduced to printed format, and the pages numbered 4 

            14    through 172 herein constitute a complete, true and 

            15    correct record of the proceedings.

            16    

            17         IN WITNESS WHEREOF, I have subscribed this 

            18    certificate at Sacramento, California, on this 17th day 

            19    of February, 2003.

            20    

            21    

            22    

            23    

            24                              ______________________________
                                            ESTHER F. SCHWARTZ
            25                              CSR NO. 1564



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