Please Act on This. Please write the SWRCB and tell them:
The current waivers are illegal
The current waivers do not address CEQA issues
The FPRs and the current waivers do not protect beneficial uses of water
The current waivers do not conform to state and federal water code
Please set the current waivers aside
I believe that some problems may be solved through basin planning.
December 23, 2003
Art Baggett
State Water Resources Control Board
P.O. Box 944213
Sacramento, CA 94244-2130
Comment: Draft Order to Set Aside Interim Categorical Waivers for Discharges Related to Timber Operations in the North Coast Region, California Regional Water Quality Control Board - North Coast Region Resolution No. R1-2002-0109, Central Valley Resolution No. R5-2003-0005, Lahontan Resolution No. R6T-2003-0001 General
Coast Action Group supports the Order to Set Aside of the above noticed Waiver(s) of Waste Discharge Report (WDR) for Timber Operations. There are several good reasons for setting these Waivers aside including the argument that they are not in conformance with California Resources Code, they do not address issues of continuing pollution resulting form timber operations, and there are alternatives that must be considered that make much more sense and that can address some of the outstanding problems related to water quality management on timber operations.
A lengthy discussion need not appear in this document on the potential for pollution from timber operations on watercourses that are, for the most part, listed as impaired and where maintenance of the beneficial uses of water under the Forest Practice Rules does not occur. There are a number of studies and reports ( legislative, scientific, and promulgated by state and federal agency - from the 1970's to the current period) that indicate that the Forest Practice Rules (FPRs) are not sufficient to protect the beneficial uses of water. This information is in your record and Mr. Michael Lozeau, Esq. (Earth Justice - Petition) included a lenghty summary of same in his brief to the Board.
Non-conformance with State Public Resources Code
The resolution by the NCRQCB establishing the Waiver of WDR for Timber Operations is a project as defined by CEQA. There is substantial evidence that this project, with reliance on programs and methods with of proven track record of not working, would have a significant adverse effect on the environment. Thus the lead agency's adoption of a Negative Declaration is inappropriate. (Pub. Resources Code, § 21080(c)) All responsibilities for environmental review, under CEQA, must be carried out. In this case a fair argument can be made that a state agency action may have a significant impact on the environment. Thus an EIR must be prepared before moving forward. (Pub. Res. Code §§ 21000, 21151) An EIR can only be avoided if it can be shown that a new program, WDR and/or Basin Planning, can demonstrate that Basin Plan objectives can be met. The EIR must identify potential environmental impacts, alternatives, and mitigation measures by which those impacts can be avoided or minimized. (Pub. Resources Code, §§ 21002.1, 21061, and 21080(d).) Full disclosure of all potential impacts must be made including cumulative impacts (defined as two or more individual effects which, when considered together, may compound or increase other environmental impacts). (CEQA Guidelines § 15355, Pub. Resource Code § 21083).
Adopted waivers failed to consider the inability of the Forest Practice Rules (FPRs) to protect the beneficial uses of water, and that this failed administration of Timber Harvest Plans (as BMPs) does not and can not monitor for mitigation implementation effectiveness or cumulative impacts to watersheds from ongoing timber harvest activity over time. CEQA mandates findings of significance wherever a project "has possible environmental impacts which are individually limited but cumulatively considerable." (CEQA §15065(c))
Public Resources Code §21002 requires agencies to adopt feasible mitigation measures or feasible environmentally superior alternatives. For each significant effect identified, the lead agency must identify specific mitigation measures. The discussion must distinguish between measures proposed by a project proponent for inclusion in a project and those that, if included as part of the approval, could reasonably be expected to reduce the level of impacts. (CEQA Guidelines §15126)
Mitigation measures should be capable of (a) avoiding the impact altogether by not taking certain action; (b) minimizing impacts by limiting the degree or magnitude of the action and its implementation; (c) rectifying the impact be repairing, rehabilitating, or restoring the impacted environment; or (d) reducing or eliminating the impact over time by preservation and maintenance operations during life of the action. (CEQA Guidelines §15370) Agencies should not rely on mitigation measures of unknown efficacy in concluding that significant impacts will substantially be lessened or avoided. All mitigations measure must be considered before the fact and not left for later implementation by another agency.
The CEQA process demands the mitigation measures timely be set forth, that environmental information be complete and relevant, and that environmental decisions be met in a accountable arena. Mitigations and criticism of mitigations must be supported by evidence. The rule of reasonableness applies.
For each significant effect identified, the lead agency must make one or more of the following Findings: (1) that changes or alterations have been required in, or incorporated into, the project that avoid or substantiality lesson the effect; (2) that the lead agency lacks jurisdiction to make the change, but that another agency does have such authority; and/or (3) that specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives. These findings must be supported by evidence. Point Source Issues
Point source issues related to timber operations, roads and culverts, were not considered as part of the Waiver. Aside from the fact that point sources on timber operations may need NPDES permit(s), environmental review regarding point source issues needs to be part of a WDR program.
Alternatives Must be Considered
Also mandated under CEQA is the necessity to analyze and discuss potential project alternatives. This discussion must include the reasoning related to selection of project choices and mitigations and the relationship of this reasoning in choosing the environmentally superior alternative.
In this case potential alternatives and compliance considerations were not part of environmental review and analysis. The following are some alternatives that must be considered:
Use of (prescriptive) WDRs - Waste Discharge Reports formatted to address and control , with assurances and monitoring, potential pollutant sources of concern from timber operations. It would be most efficient to base WDRs on a watershed concept. Use of WDRs (or Interim WDRs) can be accomplished efficiently by basin-wide (or drainage-wide) WDRs (permits to be adopted by the Regional Boards ) or ganging individual WDRs for Board hearing and approval process each month. The public or other agency would be allowed comment on individual permits. These "prescriptive" controls can be written into the Waste Discharge Report (or into larger scale Basin Planning documents - a planning process requiring a larger time frame to accomplish). The watershed-wide "prescriptive controls" (beyond the Forest Practice Rules) would be designed to place reasonable practices and monitoring (both, implementation monitoring and trend monitoring) in place to assure compliance with water quality objectives and conform to anti-degradation provisions in state and federal water law. Conformance to the "prescriptive" controls written into WDRs (or the Basin Plan) is the most environmentally and legally sound solution possible. This solution might serve as rational justification for use of a Negative Declaration - if large steps are taken to limit impacts. Failure to conform (violations) to Basin Plan or WDR conditions by a party removes that party from liability protections under such WDR and subjects them to civil and criminal penalty.
If long term planning ( "prescriptive" Basin Plan Amendment) is determined to be a desirable solution, Interim "prescriptive" WDRs that address issue must be put in place before reliance for meeting water quality objectives is based on such long term planning.
Use of (prescriptive) Interim WDRs - Interim "prescriptive" Waste Discharge Reports formatted to address and control , with assurances and monitoring, potential pollutant sources of concern from timber operations. Interim meaning for use until watershed-based WDRs (or Basin Planning) can be developed to address pollution control on a more comprehensive and efficient long term solution. Use of WDRs or Interim WDRs can be accomplished efficiently by basin-wide or watershed-based Interim WDRs (permits to be adopted by the Regional Boards ) or ganging (amalgamating) individual WDRs for Board hearing and approval process each month. The public or other agency would be allowed comment on individual permits . These "prescriptive" controls can be written in to, either, the Waste Discharge Report and/or into larger scale Basin Planning documents. A well designed WDR that assures conformance to the "prescriptive" controls written into WDRs (or the Basin Plan) can be an efficient solution providing at least some rational for justification for a Negative Declaration. Timber Harvest Plans must conform to WDR conditions and controls, beyond the Forest Practice Rules and performance based implementation monitoring and trend monitoring in each watershed must guide the suitability and effectiveness of the WDR program. Failure to conform (violation) to Basin Plan or WDR conditions by a party removes that party from liability protections and subjects them to civil and criminal penalty.
Fees for WDRs - Fees must be attached to WDRs, as permits. Failure to establish reasonable fees to cover administration and compliance assessment costs for such permitting review assures inability of agency to review and assure compliance effectiveness in meeting objectives of the permitting process and state code. See Compliance Monitoring - below
Use of (prescriptive) Waiver - A "prescriptive" Conditional Waiver formatted with intent to address and control potential pollutant sources of concern from timber operations and monitor compliance issues. By "prescriptive" the necessary controls for timber operations to reduce sources of pollutants, ongoing and/or potential from proposed operations, must be put in place. The downside of the Waiver's is that it is impossible to collect fees to insure oversight and compliance. There is not now, and without specific funding, there will not be sufficient staff in any of the Review Team Agencies to successfully apply Waiver conditions and (eventually) meet water quality objectives. Due to the general lack of capability, and the missing necessities of performance criteria, action plan, assurance of enforcement, and monitoring of specific Waiver conditions, this alternative is environmentally inferior - sure to fail. Waivers do not comply with the mandates of State Water Code, nor do they comply with other state code (including CEQA).
Note: Waivers - because they can not identify, control, or monitor impacts, or cumulative impacts, from timber operations and are not supported by fees for assurance of project review and compliance, are thus not fully mitigated and subject to an EIR - prior to project implementation. .
All of above must be in the public interest (Water Code §13269(a)), and demonstrate compliance with the applicable Water Quality Control Plan (Basin Plan), State Water Code, Coastal Zone Management Act, and all other existing State overlapping regulatory authority.
Justification for Setting Aside Waiver for Waste Discharge Reporting for Timber Operations
These hastily designed and adopted waivers that has ommitted necessary environmental review, under CEQA, must be set aside. These Waivers (in question) failed to appropiately address all of the above noted issues.
Possible Positive Outcome of Setting Aside this Waiver
The Waiver was hastily developed and approved without benefit of CEQA review and missing the necessary elements to assure compliance with the Basin Plan and assure that water quality objectives and standards be met - over time. Use of appropriately designed Prescriptive Waste Discharge Reporting (and/or Prescriptive Basin Planning - which is a more long term goal) can serve to address the implementation of measures needed to meet water quality standards and Basin Plan requirements - pollutant control compliance related to and attached to the Timber Harvest Plan review process.
TMDLs (and TMDL implementation compliance and monitoring) as another outstanding issue can be supported by appropriately written WDRs. There is no reason why the administration of prescriptive watershed-based WDRs for timber operations can not take in account compliance and monitoring needs associated with TMDLs and designed to actually support or be integrated into individual or basin wide TMDLs (or basin-wide prescriptive Basin Plan Amendments for timber operations - TMDL Implementation Planning).
Other Justification to Set Aside Waivers of Waste Discharge Reporting and to Develop a New and Successful Program
The State Water Resources Control Board and the Regional Boards have the ultimate authority and responsibility to assure compliance with the State Water Quality Control Act (Porter Cologne). Water Code Sections 13240-13247 vests authority of State and Regional Boards to amend water quality objectives and water quality control plans.
Timber Harvest Plan = Water Quality Control Plan
A Timber Harvest Plan (THP) is the Water Quality Control Plan for the area of the THP. Compliance must be demonstrated, with reasonable assurance, indicating that such THP/Water Quality Control Plan will meet water quality objectives and limit controllable sources of pollutant(s). Such a program must include implementation assurances and monitoring for compliance and effectiveness on each and every THP on listed waters. Neither THPs (as Water Quality Control Plans) or the currently associated Waiver successfully address water quality compliance issue and related state and federal code.
WDRs and/or Basin Plan efforts must be consistent with state anti-degradation policy and Cal Water Code.
State Anti-degradation Policy (Basin Plan, Chapter 3, Water Quality Objectives):
"Controllable water quality factors shall conform to the water quality objectives contained herein. When other factors result in the degradation of water quality beyond the levels or limits established herein as water quality objectives, then controllable factors shall not cause further degradation of water quality. Controllable water quality factors are those actions, conditions, or circumstances resulting from man's activities that may influence the quality of waters of the State and that may reasonably be controlled."
Porter-Cologne Act, §13242 Implementing Program. The program of implementation for achieving water quality objectives shall include, but not be limited to:
a) A description of the nature of the actions which are necessary to achieve the objectives, including recommendation for appropriate action by any entity, public or private.
b) A time schedule for actions to be taken
c) A description of surveillance to be undertaken to determine compliance with objectives.
Porter Cologne Water Quality Control Act, Water Code Section 13160, controls the objective of consistency with the Federal Clean Water Act mandates must be met.
Neither the Forest Practice Rules (THPs as implemented), as BMPs, nor the current Waiver are consistent with state water quality objectives or Cal Water Code.
Neccessary Elememts of a Waste Dishcharge Report for Timber Operations (or Basin Planning)
A WDR (or Basin Planning) for Timber Operations should include (but not be limited) to the following elements:
Erosion Control Planning
* An inventory (including mapping) of all erosion sites ( stream crossings, slides, roads, skid trails and landings) in an appurtenant to the area of the THP, with estimates of potential sediment production, detailed plans for addressing sediment/erosion control at each site, and quantification of expected sediment yield reduction from control and mitigation actions.
*A long term road management plan with an inventory of all areas needing correction and a prioritized calendar (with specific dates) for scheduled mitigation actions. The time table for completion of these actions shall be no more than 20 years or corrective action should/must be a mitigation attached to a permit (THP or WDR).
Regional Board staff must have some say in type of silviculture and rate of entry or level of disturbance controls related to erosion issues.
Regional Board staff should have authority to review and accept or reject proposed Erosion Control Plans and change priorities and time tables subject to need, risk, and efficiency.
Water Course Protection
Baseline protections for beneficial uses in the Watercourse and Lake Protection Zone (WLPZ) shall be altered to minimize sediment and temperature effects. Criteria should be developed in the form of wider stream zone buffer areas, greater retention of overstory canopy, and limitations for heavy equipment in sensitive areas of the near stream zone for Class I, II, and III watercourses.
Specific guidlines/criteria should be developed for mitigation of stream crossings. This may include culvert sizing, method of installation, and limiting stream crossings on Class I streams to bridges or specific criteria for installation of oversize culverts.
The North Coast Regional Water Quality Control Board staff has promulgated proposed rules changes to the Board of Forestry to address most of these issues. These proposed rules should be considered in WDR (or Basin Planning) development.
Compliance Monitoring
Compliance monitoring is an issue, and always has been an issue under the Forest Practice Rules. The Review Team Agency(s) (CDF, CDFG, RWQCB, and CGS) simply do not have enough time to inspect THP for implementation compliance. This situation will get worse under the current budget situation. Yet, it is the responsibility of the SWRCB to assure compliance of Timber Harvest Plans with state water law. Aside for fees allocated to support WDR for Timber Operations program, one useful tool to help assure compliance is compelling the Registered Professional Forester overseeing the implementation of a THP (or any RPF) to inspect a complete THP or related mitigations activity associated with Timber Operations and to sign affidavit testifying that the mitigations were employed according to the plan. This sort of inspection and sign-off would be a huge step in assuring compliance.
Sincerely,
Alan Levine,
For Coast Action Group
Cc: Board of Forestry
California Department of Forestry
US EPA
NOAA Fisheries
NCRWQCB
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