State Water Board Chair proposes to take traditional timber harvest management tools (Waste Discharge Reporting and Conditional Waivers for same) away from Regional Board
Problem – Current Status of North Coast Rivers
Almost all north coast rivers are listed as impaired – that is they do not meet Water Quality Standards. These impairments are the basic reason for the collapse of the salmon fishery on the north coast. The fundamental reason for impairment by the pollutants sediment, temperature, low dissolved oxygen, and nutrients, is in appropriate land use practices – mostly from timber harvest operations (see background – CZMA) and poor agricultural practices. On most of the listed impaired north coast rivers timber harvest is by far the most dominant land use and is the primary cause of impairment.
The North Coast Regional Board has taken action to control pollutants and address timber harvest issue via use of a Conditional Waiver of Waste Discharge and/or Waste Discharge Reporting. This Conditional Waiver sets minimum stream protection standards and, when complied with, negates the need for Waste Discharge Reporting.
Adding to the Problem: The State Water Board seeks to take responsibility away from the North Coast Regional Board and write State Wide Conditional Waivers and WDRs – to be administered by the State Water Board and/or the Department of Forestry (under State Water Board Authority).
Scientific Record
State Agency (CDF, State Water Resources Control Board, North Coast Regional Board, and Department of Fish and Game) and Federal Agency (NOAA and EPA) have all commissioned several extensive studies (some with timber industry participation) on the effectiveness of the Forest Practice Rules as administered by the California Department of Forestry. The overwhelming evidence (without dispute) shows that the FPRs, as administered by CDF, do not protect the beneficial uses of water.
State Responsibility
Under State Water Code and federal statute (Clean Water Act, Coastal Zone Management Act, ESA) the State is obligated to use its regulatory authority to take actions necessary to protect and recover Water Quality Standards on these impaired north coast rivers. These authorities and actions include: Amendments to the Basin Plan (Water Quality Control Plan/Implementing Programs) Total Maximum Daily Loads, Waste Discharge Reporting (and related Conditional Waivers for same – that include operational standards to protect the resource), Citation, Clean-up and Abatement Orders, Cease and Desist Orders, and Administrative Civil Liabilities. Historically and reasonably all of these authorities have been administered by the Regional Board(s).
Actions Taken by the North Coast Regional Board
The North Coast Regional Board has approved one TMDL, the Garica River- 2002, that has shown to be enforceable and effective. This TMDL has shown to be a great success. More current TMDLs that were written to lesser enforceable standards on the Scott and Shasta Rivers are more problematic.
The North Coast Regional Board has been in process for several years in the Development of Basin Plan Amendments (with prohibitions) for the control of sediment and stream and wetland protection (as part of the Non-point Source Control Program). As yet no action has been taken.
To address pollutant threat from timber operations the North Coast Regional Board has developed a Conditional Waiver for Waste Discharge Reporting (both, on federal and non-federal lands). The Conditional Waiver sets minimum standards for stream protection (beneficial use protection) related to timber operations. Timber operations not meeting the Conditional Waiver Standards must be subject to Waste Discharge Reporting.
State Water Board to Change Process.
Due to complaints from the Forest Service, the timber industry, and the Department of Forestry (CDF claims usurpation of their rightful authority to administer Timber Harvest Plans – where CDF would subordinate all participation by the Regional Board and the Department of Fish and Game), the current State Board Chair has indicated that Timber Harvest Waste Discharge Reporting and Waiver Conditions, and management of same, should be reorganized and administered (more centrally on a state wide basis) by the State Water Board. This change of course appears politically based rather than resource protective. The State Board might try to justify such changes as cost saving, providing statewide uniform regulation, elimination of duplication of work, and permit streamlining. There are arguments that can be presented to refute any and all justification made by the Board.
Arguments Against State Water Board Proposed Action
Proposed Action is not consistent with Certification of the Timber Harvest Review Process as a Certified Regulatory Program: The Timber Harvest Review Process was approved as a Certified Regulatory Program (as an abbreviated CEQA process) on the basis that the program would be multi- deciplinary (inclusive of Regional Board and Department of Fish and Game recommendations on projects). In actual practice. CDF as lead agency, has been less than open to accepting recommendations as part of the Timber Harvest Plan Review process. This is one reason major for the failure of this process to protect water quality values in timber harvest activity. The proposed action by the State Water Board would diminish the status of the multi-disciplinary approach.
Proposed Action is not consistent with Z’berg-Nejedly Act: Z’berg-Nejedly, the authorizing legislation for the Forest Practice Act, assumed the context of the multi-disciplinary review team – as an abbreviated CEQA environmental review process. Allowing one agency to dominate the whole process in inappropriate and leads to bad results. The Forest Practice Act, and Rules, state that all Timber Harvest Plans must be consistent with the Applicable Water Quality Control Plan (Basin Plan). Who better to interpret the Basin Plan For The North Coast, as applied to a project (Timber Harvest Plan) than the Regional Board.? The Department of Forestry, nor the State Water Board, have the knowledge or expertise to determine Basin Plan conformance.
Proposed Action is not consistent with the Coastal Zone Management Act (Re- authorization /CZARA): The State has contractual responsibility with EPA and NOAA to address control of non-point pollutant source responsibility, including pollutant input from timber harvest activity, under State regulatory authority. (See CZARA analysis below). Altering and reducing Regional Board authority to deal with timber harvest activity, as proposed by this State Board action, works against the State’s ability to perform and control pollutant impacts from timber harvest activity.
Argument for Considering Regional Variability: Forests and rivers function differently in different areas of the State. Sierra forests, rivers, and soils respond to management very differently than coastal temperate rain forests and soil types. These differences point out the necessity to manage forest practices and related effects regionally – not from Sacramento – and nut under one Waste Discharge Permit or Conditional Waiver.
The North Coast Regional Board has been working on timber harvest issues in the region for the last 20 years. In the last 7, or so, years the issue have become more paramount. Regional Board staff is educated in the regional land conditions, stream conditions, regional timber industry conditions, and other variable (including interpretation of the Basin Plan) relevant to the north coast and only the north coast. The North Coast Regional Board (with oversight by the State Board) is in the best position to assess, promulgate, and implement actions necessary to protect water quality values in areas of timber harvest in the region. Management scenario from outside the region would necessarily by less effective and more costly in the long run. The proposed action from the State Board is inconsistent with all of the above as it can not effectively take into account regional variability.
Proposed Action is not consistent with the current MAA (SWRCB/CDF): Several years ago, due to forest management inconstancies between CDF and the SWRCB, and the apparent lack of ability by CDF to address water quality conditions on Timber Harvest Plans, the MAA was adjusted to address issue. The proposed change in Waiver and Waste Discharge Reporting for Timber Operations would have to be rewritten to accommodate proposed changes.
Proposed Action cannot be consistent with CEQA mandates: The proposed action is a project – under CEQA. Given the above discussion, it should be apparent that the proposed action by the State Board cannot meet CEQA mandates of mitigation. It is not possible to mitigate by making things worse – through streamlining and centralized control. It is not possible to mitigate issues discussed above.
This proposal is a step backward threatening the integrity of the State Board and resources it is responsible for.