Comments Klamath River Total Maximum Daily Loads and Action Plan Addressing Temperature, Dissolved Oxygen, Nutrient, and Microcystin Impairments

Katharine Carter
North Coast Regional Water Quality Control Board
5550 Skylane Blvd, Suite A
Santa Rosa, CA 95403

August 17, 2009

The following are my preliminary comments on the Klamath River Total Maximum Daily Loads and Action Plan Addressing Temperature, Dissolved Oxygen, Nutrient, and Microcystin Impairments

GENERAL COMMENTS:

(1) The Klamath TMDL fails to meet standards of “reasonableness.” The TMDL poses regulations that largely promote the beneficial use of cold water fisheries to the detriment and exclusion of other uses of those waters and adjacent lands for agriculture, mining activities, hydropower dams, timber harvest and road use. The TMDL fails to take into consideration and balance the impacts of the proposed regulations on local community well-being, local economies, the needs and continued viability of other existing uses.

It is undisputed that an individual has an inherent right to engage in a lawful business or trade. Regulation or restraint of a business activity does not contemplate its destruction, but rather places operation within certain bounds. An state agency may impose reasonable restrictions upon the conduct of such activities so long as the regulations have a reasonable relation to a legitimate public purpose; are reasonably exercised, (within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.) Under the guise of protecting the public, the regulation may not arbitrarily interfere with, or unnecessarily restrict, a lawful business or occupation (e.g. arbitrary and capricious.)

The watershed-wide Klamath TMDL is extremely restrictive of agricultural, timber and mining activities. The imposition of this enormous new regulatory scheme over businesses and economic activities in northern Siskiyou County fails to meet standards of reasonableness.

(2) In assessing competing values of beneficial uses, is important to recognize that you are comparing the quality of water necessary for the use of the water. A certain flow -velocity and volume (or head of water) is necessary for the operation of diversion facilities and fish screens; irrigation delivery systems or facilities such as ditches, well pumps, pivot wheels, etc. Beneficial use of water for livestock and crops is not possible without water volume adequate to those needs. In addition, water velocity and volume (flow) are quality factors important to the operation of hydropower facilities; recreational use of water for white-water rafting; and the ability of suction dredge miners to operate their equipment. It is not just a matter of the needs of cold water fisheries and sometimes the water quality needs of various beneficial uses compete.

California State Water Resources Control Board Policy for Water Quality Control anticipates a weighing and balancing of competing uses: “Activities and factors which may affect the quality of the waters shall be regulated to attain the highest water quality which is reasonable, considering all demands being made and to be on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.”

The current proposal is driven only by the primacy of the needs of cold water fisheries and fails to adequately take cognizance of, assess, consider and balance all the “beneficial and detrimental, economic and social, tangible and intangible values” (or water quality factors) at stake. In addition, it seems to take into consideration all the habitat needs of cold water fisheries and does not confine itself just to the water quality necessary for the use of water by fish.

Please remember that Siskiyou County is an economically depressed area and its’ economy is primarily agricultural. Agriculture is a highly important beneficial use of water in this area. Agriculture, timber and mining all contribute to our economy and are historic factors in our cultural heritage and social fabric. Cold water fishing in the Klamath River system of Siskiyou County is only a very very minor contributor to our economy.

(3) Temperature, low dissolved oxygen and mycrosystin per se are not “wastes” under Section 13050 of the Porter Cologne Water Quality Control Act and, therefore, are not pollutants. Water discharges that have been warmed by human activity and nutrients deposited from human or domestic animal activities could be pollutants if they unreasonably affect beneficial uses. These, in turn, could contribute to conditions of low dissolved oxygen harmful to fish and environments conducive to the growth of mycrosystin. Diversions of the flow of water are not “wastes”. They are a beneficial use of the water and should not be regulated as a pollutant. Solar radiation comes from the sun and should not be regulated as a pollutant as it is on the Scott River and is proposed on the Klamath. There is a real question as to whether a direct relationship of cause and effect can be drawn between activities and alleged pollutants.

(4) Regulations are governed by rules of “proximate cause.” There must be a substantial forseeability or predictability that specific actions would cause injury or harm within an uninterrupted period of time. There is also a quality of direct causation – no intervening causes between the original act and the resultant injury. In addition, the act itself must be voluntary. It must be the primary act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. The action is not the cause of the injury if the injury would have occurred without the action.

The injury or harm caused by an activity being regulated is also held to a standard of “substantial,” significant, serious or appreciable injury as well as being a substantial factor or contributor to the injury. (The action must have been a significant factor enough to have independently caused the injury by itself.) This would be contrasted with injuries/damage that are “de minimis” or of minimum importance – something that causes an impact that is so little, small or insignificant that the law will not consider it.

If one can point to evidence of a direct cause and effect relationship between a specific activity and alleged pollution, then it is a point source condition which can be regulated. The question arises whether imposing “basin-wide” or “watershed-wide” regulatory conditions on activities in tributaries to address alleged pollution miles away in the Klamath River or vague cumulative effects in a system can stand up to scrutiny under standards of proximate cause, proof of substantial injury and substantial factor analysis, particularly when such pollution has not been identified as an immediate local problem. There is also a question as to whether regulating most human activities attributed as the source of non-point source pollution would stand up to scrutiny and burdens of proof under these standards, or whether it would be more appropriate to improve overall conditions through voluntary incentive-based programs.

(5) Conditions required for mitigation of pollution fail to meet the standards of “essential nexus” and “rough proportionality” set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). In these decisions, the Supreme Court of the United States indicated that the conditions/mitigations/exactions required of an individual must be specifically related to the polluting activity itself and roughly proportionate to that impact. In addition, as stated in Dolan: “Under the well-settled doctrine of ‘unconstitutional conditions’, the government may not require a person to give up a constitutional right-here the right to receive just compensation when property is taken for a public use-in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. See Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v. Board of Ed. Of Township High School Dist., 391 U. S. 563, 568 (1968).”

The imposition of watershed-wide conditions is not proportionate to the alleged “pollution” caused locally by specific activities. In addition, the taking of water from property owners in the Shasta River system or the taking of mining claims through use prohibitions at the confluence of rivers and creeks with the Klamath would appear to be unconstitutional conditions.

(6) All of Siskiyou County has been designated as a “distressed area,” qualifying the entire county as a California Enterprise Zone. Current unemployment is around 18%. According to the 2007 California County Data Book, Siskiyou County is now dead last in all California Counties in family economic well-being, having the lowest median income at $30,356, compared to $112,155 for San Mateo County and $56,332 for California as a whole. 65% of households with children ages 0-17 are low income, compared with a California average of 43%. The report notes that 27% of Siskiyou County’s children live in official poverty, compared to 19% for the state.

Between 1990 and 2002, official poverty rose 32.9% to 18.6% of the total population. Several farming communities have higher poverty rates: 26% in Fort Jones (Scott Valley); and 24.2% in Montague (Shasta Valley.) According to a monitoring study entitled Northwest Forest Plan—The First 10 Years (1994–2003): Socioeconomic Monitoring of the Klamath National Forest and Three Local Communities The population along the Klamath River corridor in Siskiyou County declined 22%. Those aged 0-44 dropped from 45-50%. Those Age 45-64 grew 86%. School enrollment dropped 42%. Median household income declined from $31,236 to $20,924, (a drop of 33%.) Households earning less than $10,000 grew by 24% and unemployment climbed from 16.18% to 19.60%.

Other than two plywood veneer mills and Nor-Cal, Siskiyou County has almost no manufacturing industry. There is very little economic diversity, with almost the entire economy based upon continued access to natural resources. Agriculture produces $170 million in revenue. The average net cash profitability of local farms and ranches is $29,747. (Most farms and ranches are family operated; many are California recognized heritage or “Century Ranches” that have been in existence since the mid 19th century and have stayed in a pioneer family. This is an important cultural aspect of Siskiyou County.) In 2002, average annual sales per farm were approximately $137,000 per farm, but input costs were $107,386. Profitability has gotten worse in recent years as regulatory and input costs have increased and commodity prices have decreased.

According to Cal. D.O.T. Siskiyou County Economic Forecast, since 1995, Siskiyou County’s agriculture industries have experienced substantial job loss at about 586 jobs, declining almost 45%. For instance, since 1996, county vegetable crops have declined in their contribution to the economy from $18.9 million to $11.8 million – or 38 percent. (Much of this is due to regulatory pressures, such as the water crisis in the Upper Klamath Basin.)

Tourism (mostly in the south county – Sacramento River Region) is valued at $60 million. What is left of our timber industry brings in about $48 million in revenues to be circulated. Logging jobs have steadily decreased from 951 jobs in 1989, to 331 in 1995, to 186 in 2004.

California law defines Environmental Justice as “the fair treatment of people of all races, cultures and income with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies” (Government Code Section 65040.12 and Public Resources Code Section 72000).

The California Resources Agency Environmental Justice Policy http://resources.ca.gov/environmental_justice_policy_20031030.pdf identifies low-income communities for protection from the “disparate implementation of environmental regulations, requirements, practices and activities in their communities.” All Departments, Boards, Commissions, Conservancies and Special Programs of the Resources Agency must consider environmental justice in their planning, decision-making, development and implementation of all Resources Agency programs, policies and activities.

It is quite clear that the Klamath River/watershed TMDL has significant, cumulative and disproportionate regulatory impacts on the economic activities and property use of people in Siskiyou County, (particularly agricultural and timber communities,) which would appear contrary to the State’s Environmental Justice Policy.

COMMENTS ON CHAPTER 6 – IMPLEMENTATION PLAN

(1) 6.4.4.2 Implementation
The Klamath River TMDL analysis found that the load reductions called for in the Shasta River TMDL are sufficient to meet water quality standards in the Klamath River. The Shasta River TMDL Action Plan includes a goal to increase dedicated instream cold water flows by 45 cubic feet per second (cfs). Attainment of the Klamath River temperature TMDL, and associated temperature standards, requires achieving the Shasta River flow goal. The Shasta River TMDL Action Plan includes a conditional waiver of WDRs for parties discharging to the Shasta River basin as long as they comply with Action Plan Measures.

Imposing a WDR condition of the “dedication” of 45 cfs of water, when the pre-1914 right of use is secured under one of California’s oldest water adjudications, would appear to be confiscatory and an unconstitutional condition. The regulatory and physical “taking” of water use rights should be compensated under the Fifth Amendment. Casitas Municipal Water District V. United States (United States Court of Appeals for the Federal Circuit 2007-5153 )

This exaction fails to pass the other tests of reasonableness, proximate cause, rough proportionality, and substantiality. In addition, robust analysis balancing the economic, social and cultural impacts of competing values has been done and the environmental justice factors of the disproportionate impact of taking the use of an important natural resource from a distressed community has not been examined.

(2) 6.4.5.2 Implementation

“The Scott River TMDL Action Plan includes sediment and temperature control measures, and it is anticipated that these measures are sufficient to meet the Klamath River TMDL watershed-wide temperature allocations and targets and are consistent with the proposed prohibition on the discharge of excess sediment.”

To the extent sediment impacts the Scott and the Klamath, questions of proximate cause, rough proportionality and substantiality arise. “Temperature” can be classified as a waste by-product of a human activity only in limited circumstances such as warmed irrigation runoff. The bounds of reasonableness, proximate cause, rough proportionality, substantiality, conflicting interest and environmental justice are in question here.

(3) 6.4.5.2 Implementation

“The Scott River TMDL recommended that the County of Siskiyou, in cooperation with other appropriate stakeholders, study the connection between groundwater and surface water in the Scott Valley. This study is currently underway. Attainment of the Klamath River temperature TMDL, and associated temperature standards, requires that this study move forward and that appropriate management practices are implemented following the study in order to ensure adequate flow in the Scott River.”

Actually, the TMDL Action Plan recommended that the County, in cooperation with other appropriate stakeholders develop a study plan to examine interconnected groundwater. That is all. Although Siskiyou County has funded several years of the static well study, the County has no funds available to pay for Dr. Harter’s study. Some preliminary work was done by Dr. Harter with grant funding. When it became clear that additional funding for Dr. Harter’s work would likely be contingent upon creation of a groundwater management plan, I could no longer support that work.

Siskiyou County has jurisdiction over groundwater use, (County code, Title 3. Public Safety, Chapter 13. Groundwater. ) We envision local control, with users dependent upon the resource for their living coming forward to us with a proposed groundwater management plan that meets their needs, (similar to the Glenn County model.) The NCRWQCB cannot require the Siskiyou County Board of Supervisors to pass a groundwater management ordinance. We are elected legislators and such an act is discretionary. (Bownds v. City of Glendale 113 Cal. App. 3d 875; 170 Cal. Rptr. 342; 1980 Cal. App. LEXIS 2597)

It has become obvious to water users that, under the TMDL, such a plan will be used to provide evidence to impose regulations on groundwater use in Scott Valley to increase instream flows for fish at the detriment of their livelihood and the competing use of water for livestock and crops. It is possible that they will cease to allow access to their property and wells to complete the study if they feel threatened by resultant likely regulation. In addition, as these are new requirements not in the original Scott River Action Plan, the bounds of reasonableness, proximate cause, rough proportionality, substantiality, conflicting interest and environmental justice are in question here and should receive a comprehensive analysis.

(4) 6.4.5.2 Implementation

“The Klamath River TMDL assigns nutrient and organic matter allocations to the Scott River, and the Scott River Action Plan does not include measures to control discharges of these pollutants Measures to control discharges of nutrients and organic matter from grazing and irrigated agriculture are discussed in the watershed-wide section of the Klamath River TMDL implementation plan (Sections 6.5.5 and 6.5.6, respectively).

“Parties conducting these activities in the Scott River basin are responsible for meeting the Klamath River TMDL allocations and targets and will be responsible for implementing measures to control the discharge of nutrients and organic matter consistent with the proposed grazing and irrigated agriculture WDRs and/or conditional waivers.”

The Scott River is not listed for the impairments or pollutants of nutrients and organic matter. Regulation of activities under a blanket “watershed wide” requirement is not consistent with tests for reasonableness, proximate cause, rough proportionality, and substantiality. In addition, comprehensive analysis of impacts on competing beneficial use and disproportionate impacts of regulation on distressed agricultural communities under environmental justice have not been done.

(5) 6.5.5 Grazing
“ To control nonpoint sources of pollution from grazing activities consistently throughout the Klamath River basin, to comply with the State NPS Policy, and to meet the watershed-wide and tributary TMDL allocations and targets, staff recommend the development of a Klamath River basin-wide conditional waiver of WDRs and/or general WDRs for grazing for consideration by the Regional Water Board. A conditional waiver of WDRs and/or general WDRs for grazing would not apply to CAFOs already regulated through an NPDES permit. To comply with the Klamath River watershed-wide and tributary specific load allocations and targets, any party conducting grazing activities in the Klamath River basin must select and implement management practices that control sediment sources, protect and maintain riparian functions, and address discharges of nutrients and organic matter. “

Regulation of activities under blanket “watershed wide” requirements is not consistent with tests for demonstrated reasonableness, proximate cause, rough proportionality, and substantiality. In addition, comprehensive analysis of impacts on competing beneficial use and disproportionate impacts of regulation on distressed agricultural communities under environmental justice have not been done.

(6) 6.5.5.2 Implementation: Protection and Maintenance of Riparian Shade
“Parties conducting grazing activities within the Klamath River basin in California are responsible for protecting and maintaining riparian conditions that meet the riparian shade allocation and targets. This allocation requires that riparian shade to a stream be maintained where it exists, and that grazing activities not impede progress towards reaching site potential effective shade conditions.”

Riparian shade allocation and targets do not take into consideration competing beneficial uses of land and water for sub-irrigation of pasture and livestock watering. Shade, in itself, is not a beneficial use of water and the absence of shade, in itself, is not a pollutant. Shade may somewhat mitigate the effects of solar radiation on the water. The sun actually is the cause of the heating.

Riparian areas are among the most fertile and productive of herbaceous forage. There is no pasture if large trees are established instead and livestock are excluded. . This is, in effect, a forced land use conversion. It fails to adequately take cognizance of, assess, consider and balance all the “beneficial and detrimental, economic and social, tangible and intangible values” (or water quality factors) at stake.

Most farms and ranches run along side local rivers. In areas such as the Scott Valley, these operations are compressed into small slivers by hills and mountains. This makes use of riparian areas essential for continued viability of the farm. In the mid-1990s when the federal government made a proposal to designate "critical habitat" for endangered coho within a horizontal distance of 300 ft from the normal line of the high water mark of a stream channel (600 ft. or 182.8 m, when both sides of the channel are included,) Siskiyou County submitted the following economic impact analysis:

· The proposed C.H. involves about 21% of the irrigated agriculture land base in the Shasta Valley (9,817 acres) and 35% (11,215 acres) in the Scott. The combined loss of annual ag production was estimated at $4,420,766. This does not include additional effects of any reduction in allowable irrigation of lands beyond the 300 foot strip.

· Using the multiplier effect of an income/output model, this will also result in lost sales in other economic sectors of the county of $5,913,173, losses in income of $1,847,079 and 132 lost jobs.

· Weed infestation from projected management prohibitions in the buffer areas will amount to another $1,225,095 in ag loss. Loss in annual timber stumpage value from the buffer strips was estimated at $4,941,695. No "multiplier effect" on local economy was calculated for these projected losses.

· Loss in ag land value from prohibitions was estimated at $40 million.

No comprehensive regulatory analysis of impacts on competing beneficial use and disproportionate impacts of regulation on distressed agricultural communities under environmental justice have been done. Legislative Findings of the Porter Cologne Water Quality Act § 13000 state: “The Legislature further finds and declares that activities and factors which may affect the quality of the waters of the state shall be regulated to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.”

(7) Control of Sediment Discharges
“The prohibition on the discharges of excess sediment (Section 6.5.2) will apply to
sediment discharges from grazing activities until a conditional waiver of WDRs and/or general WDRs for grazing are developed for the Klamath River basin. The prohibition as well as a conditional waiver of WDRs and/or general WDRs for grazing will require those responsible parties discharging sediment to survey all sediment sources on their land and then systematically implement management practices to control those sources pursuant to a time schedule.”

Regulation of all grazing as an assumed sediment source is not consistent with requirements for demonstrated reasonableness, proximate cause, rough proportionality, and substantiality.

(8) Control of Nutrient and Organic Matter Discharges
“To control discharges of nutrients and organic matter from animal waste deposited to surface waters, Regional Water Board staff recommend including, as a condition of eligibility for general WDRs or a waiver, that responsible parties implement measures to limit livestock access to the stream channel. This recommendation is not intended to prohibit use of surface waters for livestock watering, but rather eliminate the direct discharge of nutrients and organic matter to surface waters in the Klamath River basin.”

Although the intention of livestock exclusion may not be to prohibit beneficial use for livestock watering, it is doing exactly that. This imposes a confiscatory unconstitutional condition of a physical and regulatory taking of a water use right. It fails the tests of reasonableness, proximate cause, rough proportionality, and substantiality. In addition, comprehensive analysis of impacts on competing beneficial use and disproportionate impacts of regulation on distressed agricultural communities under environmental justice have not been done.

(9) Ranch Water Quality Management Plans
“Responsible parties shall develop a ranch management plan to organize their
implementation efforts. Ranch water quality management plans may be required as part of the conditional waiver of WDRs and/or general WDRs for grazing and may be
required at any time by the Regional Water Board’s Executive Officer. Landowners may choose to implement measures from an existing plan, develop their own plan, or
implement measures from a plan that is developed as a group. If an existing plan is to be used, it is the responsibility of the landowner to ensure the plan complies with the TMDL allocations and targets and that additional measures are included if needed. The ranch water quality management plan should include the management practices selected by the landowner(s) to comply with the TMDL and also include elements such as:

A description of the existing beneficial uses to be protected from grazing
activities;
A survey of sediment sources on the ranch, including roads, and a time schedule
for implementing measures to address those sediment sources as required by the
prohibition on the discharge of excess sediment;
An inventory of riparian vegetation conditions, and a plan to monitor progress
towards meeting the watershed-wide riparian shade allocation and targets;
Nutrient and organic matter control measures including limiting livestock access
to the stream channel; and
Tracking and effectiveness monitoring of pollution control practices selected for
implementation.”

Blanket watershed requirements for a Ranch WQMP fails the tests of reasonableness, proximate cause, rough proportionality, and substantiality. This requirement is way out of proportion to impacts. In addition, comprehensive analysis of impacts on competing beneficial use and disproportionate impacts of regulation on distressed agricultural communities under environmental justice have not been done.

(10) 6.5.3.1 Flow
“Maintaining near natural flows in the Klamath River tributaries in California is an
important component of meeting the Basin Plan water temperature objective. In
particular, cold water flows are necessary to maintain the function of thermal refugia in the Klamath River basin. Regional Water Board staff will work with other state and federal agencies and tribes to identify and eliminate illegal diversions in the Klamath River basin in California. In addition, Regional Water Board staff recommend that the State Water Board staff issuing water rights permits to divert surface water in the Klamath River basin in California consider the impact of increased diversions on tributaries that provide thermal refugia.”

This puts forward front and center the primacy of the beneficial use of water for cold water fisheries over competing beneficial uses for agriculture. It fails to adequately take cognizance of, assess, consider and balance all the “beneficial and detrimental, economic and social, tangible and intangible values” (or water quality factors) at stake. As pointed out previously, in assessing competing values of beneficial uses, is important to recognize that you are comparing the quality of water necessary for the use of the water. A certain velocity and quantity (or head of water) is necessary for the operation of diversion facilities and fish screens; irrigation delivery systems or facilities such as ditches, well pumps, pivot wheels, etc. Beneficial use of water for livestock and crops is not possible without water volume adequate to those needs. The NCRWCQB cannot simply take water from one beneficial and reallocate it to another.

This brings up questions of unconstitutional conditions, taking of property in the form of pre-1914 water use rights affirmed by adjudications. The universality of the requirements fail the tests of reasonableness, proximate cause, rough proportionality, and substantiality. This requirement is way out of proportion to impacts. In addition, comprehensive analysis of the impacts of regulation on distressed agricultural communities under environmental justice have not been done.

(11) 6.5.6 Irrigated Agriculture
“Activities associated with irrigated agriculture have the potential to contribute to water quality impairments through discharges of polluted irrigation tailwater and by degrading riparian conditions. Irrigated agriculture occurs in the Klamath River basin in California mostly in the tributary basins in the upper middle reach of the Klamath River from Scott River to Iron Gate dam, including the Scott and Shasta River basins, and in the Lost River basin that drains into the Klamath River in Oregon.

6.5.6.2 Implementation
“The Regional Water Board currently does not regulate irrigated agriculture activities in the Klamath River basin, except through waivers of WDRs adopted as part of the Scott River and Shasta River TMDL implementation plans. To control nonpoint sources of pollution from irrigated agriculture activities consistently throughout the Klamath River basin in California, to comply with the State NPS Policy, and to meet the watershed-wide and tributary TMDL allocations and targets, staff recommend the development of a Klamath River basin-wide conditional waiver of WDRs and/or general WDRs for irrigated agriculture for consideration by the Regional Water Board. The basin-wide conditional waiver of WDRs and/or general WDRs for irrigated agriculture would succeed the existing waivers in the Scott and Shasta River basins.

“Staff recommends that a Klamath River basin-wide conditional waiver of WDRs and/or general WDRs for irrigated agriculture provide landowners the option of complying with the waiver or WDR individually or as part of a group compliance program. Group compliance programs could be coordinated by a local RCD or other local group. As part of a group program, the individual’s responsibility would be to implement best management practices (BMPs) that control discharges resulting from irrigated agriculture activities, comply with the prohibition on the discharge of excess sediment, and meet the TMDL allocations and targets for shade, nutrients, and organic matter. Management measures should focus on maintaining and restoring riparian vegetation, road management to control sediment discharges, and controlling irrigation tailwater quality.”

The universal and broad scope of the requirements fail the tests of reasonableness, proximate cause, rough proportionality, and substantiality. In addition, comprehensive analysis of the impacts of regulation on distressed agricultural communities under environmental justice have not been done. It assumes that all irrigated agriculture is engaging in polluting activities. This requirement is way out of proportion to impacts. It proposes an alarming “permit to farm” over the entire Klamath system as if all irrigated farming was injurious to public health and safety. It proposes no similar scheme over competing beneficial uses of water.

(12) 6.5.3.2 Prohibition of Discharge in and Around Known Thermal Refugia in the Klamath River Basin
“To control the potential impacts of sediment discharges in and around thermal refugia, staff recommend a prohibition on discharges of waste within a defined instream buffer area in and around known thermal refugia in the Klamath River basin in California. The prohibition would apply only to discharges of waste that are not already regulated by other means. Suction dredging activities and activities that alter the stream bank are identified as having the potential to cause direct impacts to the function of refugia through sediment discharge. The implementation plan recommends the Regional Water Board continue to control the impact of stream bank alteration projects through its ongoing State 401 water quality certification program. For discharges associated with suction dredging activities, there is currently no regulatory mechanism in place. The prohibition on discharges in and around refugia would fill this gap in regulation and serve to implement the watershed-wide TMDL allocations.

“Regional Water Board staff are addressing the impacts of suction dredging as a precautionary measure following the recommendation of fisheries biologists. Expert testimony by Dr. Peter Moyle (2006) concluded that: Suction dredging represents a chronic unnatural disturbance of natural habitats that are already likely to be stressed by other factors and can therefore have a negative impact on fishes that use the reach being dredged. All anadromous fishes in the Klamath basin should be considered to be in decline and ultimately threatened with extirpation. Suction dredging, through a combination of disturbances of resident fish, alteration of substrates, and indirect effects of heavy human uses of small areas, especially thermal refugia, will further contribute to the decline of the fishes.

“Dr. Moyle recommended protecting thermal refugia used by coho and other salmonid species by incorporating no-dredge buffers for varying distances around sources of cold water to the Klamath River system. A review by Harvey and Lisle (1998) of the impacts of suction dredging on streams made a similar concluding entreaty: Considering the uncertainty surrounding dredging effects, declines in
many aquatic animal populations, and increasing public scrutiny of management decisions, the cost of assuming that human activities such as dredging cause no harm deserves strong consideration by decision makers. Where threatened or endangered species exist, mangers would be prudent to assume activities such as dredging are harmful unless proven otherwise).

The focus is the beneficial use of water by cold water fisheries. It is not the beneficial use of habitat/refugia by cold water fisheries, the disturbance of resident fish, the alteration of substrates or indirect effects. The issue is whether salmon’s use of water is affected by suction dredge mining.

As alluded to in the wording, these prohibitions are a “precautionary” measure based only on an opinion. There is an “assumption” that it is harmful unless proven otherwise. There are no peer review field studies (science) to back up the opinion. This fails tests of proximate cause and rough proportionality. You cannot prohibit an activity just because someone feels that it might be harmful. This would not be reasonable and raises questions as to whether or not the regulation is arbitrary and capricious. In point of fact, there are numerous field studies that indicate impacts are de minimis:

The California Department of Fish and Game (CDFG, 1997) concluded, “Suction dredging can have significant short-term and localized adverse impacts on local benthic invertebrate abundance and community composition. However, over the long-term, the impacts appear to be less than significant. Colonies of invertebrates generally recolonize areas disturbed by suction dredges within a relatively short period of time ranging from one to two months.” “Impacts to benthic invertebrate communities of suction dredging with 6 inch or smaller sized nozzles appear to be less than significant.” “Effects to benthic and/or invertebrate communities, turbidity and water quality appear to be less than significant. They are usually localized and temporary in duration.”

A U.S. Army Corps of Engineers study on suction dredge mining found de minimis impact on aquatic resources and provided “official recognition of what suction dredgers have long claimed: that below a certain size [4 inches], the effects of suction dredging are so small and so short-term as to not warrant the regulations being imposed in many cases.”

A recent 2003 study by Peter B. Bayley, Response of fish to cumulative effects of suction dredge and hydraulic mining in the Illinois subbasin, Siskiyou National Forest, Oregon, concluded:

“The statistical analyses did not indicate that suction dredge mining has no effect on the three responses measured, but rather any effect that may exist could not be detected at the commonly used Type I error rate of 0.05. The fact that the analysis was able to detect a negative effect of another mining process, HM, on native salmonids, is an indication of the long-lasting effect that hydraulic mining has had on the environment, particularly on riparian zones and floodplain sections in geomorphically unconstrained reaches.”

“The reader is reminded of the effect of scale. Localized, short-term effects of suction
dredge mining have been documented in a qualitative sense. However, on the scales occupied by fish populations such local disturbances would need a strong cumulative intensity of many operations to have a measurable effect…”

Here is a list of additional studies that have been done concerning the effects of suction dredge mining on fish and aquatic species, followed by a few quotes to summarize their findings:

REFERENCE STUDIES:

Badali, Paul J., 1988, Prepared Statement to Sate of Idaho, Department of Water Resources, Recreational Dredging Seminar on February 3, 1988.

Harvey, Bret C., 1986, Effects of suction dredging on fish and invertebrates in two California streams. North American Journal of Fisheries Management 6:401-409.

Hassler, Thomas J., Somer, William L., Stern, Gary R., 1986, Impacts of Suction Dredge Mining on Anadramous Fish, Invertebrates and Habitat in Canyon Creek, California. California Cooperative Fishery Research Unit, U.S. Fish and Wildlife Service, Humbolt State University, Cooperative Agreement No. 14-16-0009-1547, Work Order No. 2, Final Report.

Huber, C. and D. Blanchet, 1992, Water quality cumulative effects of placer mining on the Chugach National Forest, Kenai Peninsula, 1988-1990. U.S. Forest Service, Chugach National Forest, Alaska Region. 74 pages.

Lewis, Robert Pollution Bioanalyst III, 1962, Results of Gold Suction Dredge Investigation. Memorandum of September 17, 1962. California Department of Fish and Game. Sacramento, California, 7 pp.

North, Phillip A., 1993, A Review of the Regulations and Literature Regarding the Environmental Impacts of Suction Gold Dredges. U.S. Environmental Protection Agency, Region 10, Alaska Operations Office.

Somer, W. L., and Hassler, T. J., 1992, Effects of suction-dredge gold mining on benthic invertebrates in Northern California Stream. North American Journal of Fisheries Management 12:244-252.

Stern, Gary R., 1988, Effects of suction dredge mining on anadramous salmonid habitat in Canyon Creek, Trinity County, California. M. S. Thesis, Humbolt State University, Arcata, California, 80 pp.

U.S. Environmental Protection Agency, 2001, Fact Sheet NPDES Permit AKG-37-5000, U.S. Environmental Protection Agency, Region 10, Alaska Operations Office, 16 pp.

"The results from Resurrection Creek indicated that there was no difference in the macroinvertebrate community between the mining area and the locations downstream of the mining area in terms of macroinvertebrate density and taxa richness. The sampling was done 35 days after mining had been completed for the season and shows a rapid recovery of the mined areas." (The U.S. Environmental Protection Agency – 2001.)

"Dredge tailings are often referred to as good salmonid spawning substrate. In the Trinity River, chinook salmon have been observed spawning in the tailing piles of suction dredges ( E. Miller pers. comm. ). Steelhead in Idaho streams have been reported to spawn in gravels recently disturbed by human activities ( Orcutt et al. 1968 ). In the American River , Prokopovich and Nitzberg ( 1982 ) have shown salmon spawning gravels have mostly originated from old placer mining operations." (Hassler, Somer & Stern 1986)

"Anadramous salmonids held and spawned in Canyon Creek in close proximity to suction dredge activity. During the 1984-1985 spawning season, fall-run chinook salmon, coho salmon and steelhead spawned in areas actively dredged during the 1984 dredge season (fig.). In August 1985, spring-run chinook salmon and summer-run steelhead were holding near areas where suction dredges were being operated (fig. 23). During the 1985 spawning season, fall and spring-run chinook salmon spawned in areas actively dredged during the 1985 dredge season (fig. 24)." (Hassler, Somer & Stern 1986)

"If dredge mining regulations were expounded upon and miners were made aware of the instream habitat needs of salmonids, the most serious impacts of suction dredge mining could be reduced. Suction dredgers may even be able to enhance certain areas of the channel for rearing and spawning fish, if some of the limiting factors of a reach of stream are identified (ie. cover, woody debris, low velocity refuges, clean gravels). In Canyon Creek, current CDFG suction dredge regulations eliminate conflicts with salmonid spawning, incubation, and fry emergence by restricting mining to summer months. The 15.24 cm maximum aperture size for dredges is appropriate since stream substrate is large, but larger apertures may be too disruptive in the small channel." (Stern 1988)

"Fish and invertebrates displayed considerable adaptability to dredging, probably because the streams naturally have substantial seasonal and annual fluctuations (Moyle et al. 1982). These fluctuations, in the form of flushing winter flows, can greatly reduce the long term impact of dredging. Even during the relatively mild winter of 1980/81, high flows still filled the hole created by dredging on NFAR with a sand and gravel mixture and eliminated all sand from the main streamed. After the high flows in winter and spring of 1981/82, no substrate changes caused by dredging in the previous summer were evident on Butte Creek. Saunders and Smith (1965) observed a quick recovery in the trout population after scouring of a heavily silted stream, which, along with the quick temporal recovery of stream insects seen in this study, implies that suction dredging effects could be short-lived on streams where high seasonal flows occur." (Harvey 1986)

"…dredge mining had little, if any, impact on water temperature." (Hassler, Somer & Stern 1986.)

"Although distinct to even the most casual observer, dredge plumes in Canyon Creek were probably of little direct consequence to fish and invertebrates. Suspended sediment concentrations of 20,000 to 100,000 mg/l which impact fish feeding and respiration (Cordone and Kelly 1961) greatly exceed the highest level of 274 mg/l measured in Canyon Creek. In general, dredge turbidity plumes were highly localized and occurred during midday which is not a peak feeding period for steelhead (Moyle 1976). Laboratory studies by Sigler et al. (1984) found that steelhead and coho salmon preferred to stay in channels with clear water, and turbidities as little as 25 NTU's caused a reduction in fish growth. In contrast to Sigler's results, young steelhead in Canyon Creek appeared to seek out dredge turbidity plumes to feed upon dislodged invertebrates even though clear flowing water was available nearby." (Stern 1988)

"In the 1997 permit, EPA defined a small suction dredge as those with nozzles less than or equal to four inches. EPA is proposing to redefine the small suction dredge range as less than or equal to six inches. Information provided in EPA’s suction dredge study and the United States Geological Survey (USGS) study support the conclusion that there are local but short term effects on both water quality and macroinvertebrate communities in the mining areas. On the Fortymile River, dredges larger than those proposed under this GP showed that turbidity was reduced to background levels within 250 feet. It is expected that small dredges would have even less impact on the downstream receiving water quality." (U.S. Environmental Protection Agency – 2001.)

(13) Size of the Instream Buffer Area
“Instream buffer areas located in and around the mouths of the tributaries that create
refugia in the mainstem Klamath River are recommended. Two buffer areas are
recommended within the wetted channel of the Klamath River; one upstream and one
downstream of the tributary confluence providing thermal refugia. A third buffer area is recommended in the wetted channel of the tributary stream providing thermal refugia, located upstream of the tributary confluence with the Klamath River. These three buffer areas are assigned different lengths based on the potential impacts of instream activities such as suction dredging within that area. Figure 6.3 shows a generic tributary/river confluence with the different instream buffer areas delineated.

Figure 6.3: Conceptual diagram of proposed buffers in and around the confluence of a tributary providing thermal refugia.

Regional Water Board staff recommend a default buffer where no site-specific
information is available regarding the spatial extent of the refugia

The prohibitions on suction dredge mining within the area of a defined or default buffer is a physical and regulatory taking of private property (mining claim.) As such, the prohibition is an “unconstitutional condition.” The extent of the buffer and the lack of scientific data to support need bring into question the reasonableness of the condition being imposed. In addition, robust analysis balancing the economic, social and cultural impacts of competing values has been done and the environmental justice factors of the disproportionate impact of taking the use of an important natural resource from a distressed community has not been examined.

Siskiyou County came into being as a result of the Gold Rush. Our County Seal features a gold miner, as does the seal of the State of California. Gold mining is a great part of our history and heritage. Along the Klamath River and its tributaries, people still make a modest living gold mining. In the past twenty years, gold mining has also become a popular draw for tourism to the area. Suction dredge mining has become increasingly important to the micro-economies of the Klamath River.

The 1997 California Department of Fish and Game’s Draft Environmental Impact Report, Adoption of Amended Regulations for Suction Dredge Mining (Page V27) observed that suction dredge mining is an activity that requires a substantial investment. The report cited a survey which established that dredgers spend an average of 35 days a year suction dredging. During this time, they spent about $6,250 each on expenses, including groceries, restaurants, motels, camp fees and other living expenses. In addition, they reported spending about $3,000 dollars on gas, oil, equipment maintenance and repairs to suction dredge equipment. In total, the survey results indicated that, in California, more than $20 million may be spent by suction dredgers on living expenses related to suction dredge operations.

Suction dredge mining provides seasonal income to sustain local grocery stores, gas stations and other businesses. Without tourism revenue to support these basic services, continued residence in the small communities along the Klamath River will become difficult.

Thank you for the opportunity to comment.

Marcia H. Armstrong, Supervisor – Fifth District
Siskiyou County
P.O. Box 750
Yreka, CA 96097

Addendum to Comments
Klamath River Total Maximum Daily Loads and Action Plan Addressing Temperature, Dissolved Oxygen, Nutrient, and Microcystin Impairments – Marcia H. Armstrong

Reference Notes: General Comments #2
· California State Water Resources Control Board State Policy for Water Quality Control, “Activities and factors which may affect the quality of the waters shall be regulated to attain the highest water quality which is reasonable, considering all demands being made and to be on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.” http://www.epa.gov/waterscience/standards/wqslibrary/ca/ca_9_72.pdf

· Porter Cologne Water Quality Act § 13000. Legislative findings: “The Legislature further finds and declares that activities and factors which may affect the quality of the waters of the state shall be regulated to attain the highest water quality which is reasonable, considering all demands being made and to be made on those waters and the total values involved, beneficial and detrimental, economic and social, tangible and intangible.”

· Porter Cologne Section 13050 (h) “Water quality objectives” means the limits or levels of water quality constituents or characteristics which are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area.

· Porter C. Section 13241 Water quality objectives Each regional board shall establish such water quality objectives in water quality control plans as in its judgment will ensure the reasonable protection of beneficial uses and the prevention of nuisance; however, it is recognized that it may be possible for the quality of water to be changed to some degree without unreasonably affecting beneficial uses. Factors to be considered by a regional board in establishing water quality objectives shall include, but not necessarily be limited to, all of the following: (a) Past, present, and probable future beneficial uses of water. (b) Environmental characteristics of the hydrographic unit under consideration, including the quality of water available thereto. (c) Water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area. (d) Economic considerations. (e) The need for developing housing within the region. (f) The need to develop and use recycled water.

· Porter C 13050 Definitions: (l)(1) “Pollution” means an alteration of the quality of the waters of the state by waste to a degree which unreasonably affects either of the following: (A) The waters for beneficial uses. (B) Facilities which serve these beneficial uses.”

Reference Notes: General Comments #3

· Under the Section 13050 (l) definitions of Porter Cologne Water Quality Control Act, “Pollution” means an alteration of the quality of the waters of the state by waste to a degree which unreasonably affects either of the following: (A) The waters for beneficial uses. (B) Facilities which serve these beneficial uses.” Under the Section 13050 (d) definitions of Porter Cologne Water Quality Control Act (d) “Waste” includes sewage and any and all other waste substances, liquid, solid, gaseous, or radioactive, associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation, including waste placed within containers of whatever nature prior to, and for purposes of, disposal.

· Klamath River TMDL: 4.1 Introduction The purpose of a TMDL pollutant source analysis is to inventory and describe all sources of pollutants that are impacting the water quality standards of the impaired waterbody. In addition, this chapter describes the processes for delivery of the pollutants and quantifies the pollutant sources within the watershed. The water quality parameters (or pollutants) considered in this Klamath River TMDL source analysis include: Temperature; Dissolved Oxygen (DO); Organic matter – measured as Carbonaceous Biochemical Oxygen Demand (CBOD)1; Total Phosphorus (TP); Total Nitrogen (TN); and Microcystin.

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