COMMENT: On Proposed Language in Consideration of Silvicultural and Agricultural Practices To Be Considered a Point Source Under Clean Water Act Regulatory Authority

W-99-04, NPDES/WQS Comment Clerk, Water Docket Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460.

COMMENT

On Proposed Language in Consideration of Silvicultural and Agricultural Practices To Be Considered a Point Source Under Clean Water Act Regulatory Authority

North coast fisheries, including the Garcia River, have experienced a dramatic decline. This decline is associated with land use practices resulting in pollutant loading and habitat loss. The result of this decline has put several commercial salmonid fish species on the brink of extinction with pending action to be taken under the Federal Endangered Species Act. With the decline of the fisheries, the local commercial and sport fishing industry and the tourism industry have suffered severe downturn in revenues and employment. Other forest products commercial enterprises have shown a recent downward trend. Mendocino County has one of the highest rates of unemployment in the State of California.

It is imperative that the EPA and other trustee agencies develop cooperative and regulatory programs to address land use activity and water quality impacts.

Coast Action Group has participated in the promulgation of EPA TMDLs on 17 (now 21) North Coast Rivers in California. Coast Action Group has extensive experience in the review and comment on current Timber Harvest Plans (THP) in the Coast Cascade Region (inclusive of listed rivers - below) of California. Coast Action Group has review in detail over 683 Timber Harvest Plans, from 1988 to 1995, creating a database for individual practices, mitigations, inspection, violations, and conditions present on the individual and collective THPs. (Declaration on findings inclosed). Coast Action Group has made comment on over 100 THPs in the Coast Cascade Region from 1992 to the present.

These impaired waterbodies are coastal short-run rivers that were once prodigious producers of salmon. Historic and current land use is responsible for aggravated pollutant load increases. Elevated pollutant loads of sediment, temperature, and nutrients are responsible for the decline of salmonid species and habitat conditions needed for the propagation of these species. The predominant offending land use operations responsible for the decline in water quality are timber harvest practices, agricultural practices, and water diversion. The problems relating to non-point source pollutant loading, from the above mentioned sources, and as discussed in reference to the listed northcoast rivers in California are very similar to problems extant on other Pacific Northwest rivers and their related salmon fishery declines.

List of Rivers listed in California and subject to land use non-point source related impacts:

Russian River Gualala River* Garcia River* Navarro River* Albion River* Big River* Noyo River* Ten Mile River* Eel River* Mattole River* Klamath River Trinity River Salmon River Scott River Van Duzen River Yager Creek* Freshwater Creek* Elk Creek* Bear Creek* Jordan Creek*

All these listed rivers are impacted by silviculture by a large degree. The rivers followed by (*) are primarily dominated by silviculture as the primary land use in these drainages were the other rivers have some competing pollutant source such as agricultural runoff and/or water diversion (as in the case of the Russian, Klamath, and Trinity).

In California, the State and the National Marine Fisheries Service Scientific Review panel review of the Forest practice Rules (as BMPs) indicated that these rules did not protect the beneficial uses of water - fisheries. This was backed up by other scientific reports including those from the EPA and NOAA. Under CZARA both NOAA and the EPA made statement that both silvicultural and agricultural practices (as BMPs) in California were not protecting the beneficial uses of water.

Documentation to be found in:

Report of the Scientific Review Panel On California Forest Practice Rules and Salmonid Habitat, Prepared for The Resources Agency of California and the National Marine Fisheries Service. (Copy Enclosed)

An Ecosystem Approach to Salmonid Conservation, B. Spence, G. Lomnickey, R. Hughes, R. Novitzki, for Management Technology (MANTECH), 1996 - This Report contains huge amounts of scientific documentation and reference to habitat and water quality impacts from timber harvest practices and agricultural sources.

Memorandum of Points and Authorities In Support of Motion for Summary Judgment, Joseph Brecher, 1997

Also: The National Marine Fisheries Service has published Short-Term Habitat Conservation Plan Guidelines for Timber Operations (In the Pacific Northwest and California). These guidelines are vastly superior to current logging controls under California's Forest Practice Act.

Pacific Rivers Council has their own document on logging guidelines. This package of proposed BMPs is very similar to NMFS. (Copy included in package)

An Example - The Garcia River and other drainages:

Using the Garcia River as an example: Forest Practices (BMPs) have allowed timber operations in sensitive areas and in the near stream zone were erosive and unstable geomorphic and soils conditions exist, allowed winter logging, and allowed a level of disturbance that exacerbated pollution levels form non-point sources. Exclusively related to logging, roads and skid trail have been developed to occupy an area 27 miles per sq. mile. This occurring in areas of steep, geologically unstable, and occupied by erosive soils conditions. Current logging practices allowed inappropriate erosion control consideration and installation and level of entry/disturbance in almost all planning watersheds in the Garcia drainage of over 100% in 10 years, some over 150%.

This pattern is similar to effects of silviculture in other listed drainages in California and the Pacific Northwest.

The State of California has (and continues to) failed to address needed changes in Forest Practice Rules as BMPs. There is a need for the application point source control authority - including monitoring and watershed assessment.

Forest practices (silviculture) are not the only land uses practices affecting these North Coast Rivers, and other rivers in the Pacific Northwest. While these practices are allowed to continue, unregulated, the salmon fishery continues to decline from loss of habitat, where water quality standards are being violated due non-point source pollutant inputs of sediment, temperature, and nutrients from logging and agricultural land use practices. The degradation has resulted in the listing of the North Coast California Rivers ( and associated fishery loss) on the EPA 305 (b) report and 303 (d) list as pollutant impaired and thus not meeting water quality objectives. However TMDLs, related scheduling, absence of implementation programs, and lack of State cooperation will and can not bring about the necessary control to limit pollution inputs in these areas. Currently, under Sections 303 or 319 there is no legal authority to enforce, with reasonable assurance, land use programs for limiting non-point source pollutant inputs.

Polluted runoff from non-point sources (mostly agriculture) is responsible for 60% of the impairment of our rivers, lakes and estuaries. Source: Clean Water Action Plan - The first year (1999)

U.S. Geological Survey Circular 1225 (1999), The Quality of Our Nation's Waters - Nutrients and Pesticides, documents increasing trends of contamination of surface water and ground water by non-point sources - mostly related to agriculture.

The economic and ecological importance of our water based resources is so great that we can not afford to let degradation to continue unabated. We simply will not be able to survive, at levels we are accustomed to, unless we find solutions for solving our water based problems. Finding these solutions must, out of necessity, involve the imposition of some regulatory base to protect and enhance water quality criteria in cases where it is subject to degradation. Decades of regulatory absence and reliance on voluntary compliance has allowed our water resources to decline dramatically. There has been no indication by responsible parties that the can or intent to comply with programs that will promote remedy of existing problems. Thus the EPA must remove existing regulatory exemptions and develop and move forward on non-point and point source regulatory control.

We support the EPA in this attempt to create a regulatory structure where, in cases where water quality criteria are not being met, programs can be developed with the use of TMDLs and other tools such as NPDES permits to create effective pollution control programs. The effectiveness of such programs becomes questionable when major pollutant producers are allowed to be exempt from such programs.

The EPA is seeking regulatory guidance in its attempt to strengthen their regulatory responsibility in the non-point pollutant source areas, including areas previously exempt from regulatory control. Non-point sources are responsible for a great percentage of the total pollution problem (60 % for polluted runoff plus 15% for urban runoff/stromwater - from 1996 national water quality inventory). Of the total non-point pollutant producers agriculture is by far the largest (from 1996 Water Quality Inventory). It is obvious that previously unregulated point and non-point sources must bear their fair share of the pollution reduction problem.

Money spent just dealing with point sources is not effectively used if non-point sources go unchecked. It is also unfair to let point sources bear the brunt of the regulatory process while other polluters get away without any regulatory control. To be consistent with the CWA goal "to restore and maintain the chemical, physical, and biological integrity of the nation's waterbodies" it is imperative that the CWA use of TMDLs, under the CWA authority, and use all mechanisms and consider all pollutant sources in attaining the stated goals.

New regulatory language may allow for TMDLs to be established for waterbody and pollutant combinations. This can provide great efficiency in TMDL promulgation and the efficacy of TMDL to meet water quality objectives. This is true especially if there is more emphasis in committing resources to consider TMDL promulgation for more than one pollutant at one time and/or point and non-point source combinations, and/or more than one waterbodies at one time; e.g. 17 northcoast rivers are experiencing pollutant loads from similar activities and sources (from silviculture). It may be possible to write multi-pollutant or multi-river (basin wide) TMDLs. The would save a lot a time - why write multiple TMDLs when they are all the same, suffering from the same pollutant inputs from the same activities and needing the same BMP fixes? Use of combinations, the watershed approach or TMDLs for entire basins can create TMDL efficiency and keep these important resources from languishing in the process for another 10 to 20 years.

This projected efficiency and/or effectiveness can not happen if activities related to silviculture and agriculture are exempted from CWA oversight.

Consideration of silviculture and agricultural runoff as a point source (in limited cases), thus requiring a NPDES permits. This would be one way to corral those excessive sediment and nutrient producers where current BMPs are not doing the job. This would also increase TMDL point and non-point authority. Also, EPA has authority to remove such exempted activity from section 404 - if found to have deleterious effect on the nations waters.

Removal of such exemption would create pollution parity. Polluters should be responsible for their own pollution. If the non-point polluters escape oversight by exemption then the regulated polluters or others (the taxpayer) end up picking up an unfair share of the pollution control tab. Plus - the tab is much bigger the worse the degradation is. And, in some cases TMDLs are almost worthless unless all polluters are brought on line. I think the EPA knows this and is trying to move, however slowly, in the right direction.

When you attempt to regulate previously unregulated sources you will seriously loud noises from the silvicultural and agricultural community. I would not count on too much in the way of voluntary participation in water quality management plans in this area. Their track record is terrible. Remember, voluntary plans must be visible and measurable. Thus far the silvicultural and agricultural community have not demonstrated ability to deliver reliable and enforceable water quality control plans for their non-point and point sources.

In California non-point regulatory pollution control programs for agricultural and silvicultural land use are not working. This is demonstrated by joint statement on this issue by NOAA and the EPA. Please review the attached documents with discussion on the issue of non-point source control failure in California's Forest Practice Act regulation including the State's own recent Science Review Panel Report stating that California's forest practice regulatory process is not protecting the beneficial uses of water.

Bibliography:

Matrix Evaluations of Farm and Ranch Impacts, Garcia River TMDL, May 1997

Implementation Proposal, Garcia River TMDL, July 1997

Additional Sources:

Coho Salmon Considerations for Timber harvesting under the California Forest practice Rules, California Department of Forestry, 1997

Coastal Salmon Conservation: Working Guidance for Comprehensive Salmon Restoration Initiatives on the Pacific Coast, NMFS, 1996

Transactions of the American Fisheries Society, Volume 117, January 1988

Influence of Forest and Rangeland management on Anadromous Fish Habitat in the Western United States and Canada, William R. Meehan, Technical Editor, 1. habitat Conditions of Anadromous Salmonids , D.W. Reiser andT. C. Bjornn, 1979

Methods for Evaluating Stream, Riparian, and Biotic Conditions, William S. Platts, Walter F. Megahan, G Wayne Minshall, 1983

Assessing the Effectiveness of California's Forest practice Rules in Protecting Water Quality, prepared by the Monitoring Study Group (MSG) of the State Board of Forestry with assistance form William Kier and Associates, 1993

Aquatic Field Protocols Adopted by the Fish, Forests, And Farms Community (FFFC) Technical Community, compiled by Ross N. Taylor, Fisheries Consultant, 1996

An Ecosystem Approach to Salmonid Conservation, B. Spence, G. Lomnickey, R. Hughes, R. Novitzki, for Management Technology (MANTECH), 1996

Evaluating the Long - Term Consequences of Forest Management and Stream Cleaning on Coarse Woody Debris in Small Riparian Systems of the Central Rocky Mountains, D. Bragg and J. Kershner, 1997

Alan Levine, Coast Action Group, P.O. Box 215 Point Arena, CA 95468; (707) 882-2484, (707) 542-4408 - Weekdays