TMDL standards in KBRA debated 

By JOEL ASCHBRENNER

H&N Staff Reporter

October 8, 2010

   The issue: The Klamath Basin Restoration Agreement states that participants must comply with “appropriate” total maximum daily load, or TMDL, standards in the water system.

   What opponents say: Current TMDL standards are unattainable and the KBRA will further tie water users to these standards.

   What proponents say: The KBRA only mandates that participants adhere to TMDL standards that they deem are “appropriate.”

   Why voters should care:    Many say TMDL standards in the Upper Klamath Basin are unattainable.

   Failure to comply with these standards can result in action by the Environmental   Protection Agency.

   The debate over how the Klamath Basin Restoration Agreement will affect total maximum daily load, or TMDL, standards comes down to one word: “appropriate.”

   The agreement calls its participants to adhere to “appropriate” standards for TMDLs, pollution limits designated for specific bodies of water.     

   A TMDL for Upper Klamath Lake wa s approved by the Environmental Protection Agency in 2002 and a draft of the proposed TMDL for the Klamath and Lost rivers was released in February. California accepted a TMDL plan for the Klamath River in March.

   KBRA opponents say the agreement will force water users to accept current TMDL standards set forth by the Oregon Department of Environmental Quality, while KBRA supporters say those who signed the agreement simply must adhere to some TMDL standard, not the standards currently in place.  

   “It essentially means we will support efforts to clean up the water in the watershed,” said Klamath County Commissioner John Elliott, a KBRA supporter. “That does not mean we will support every TMDL standard that is offered. The key there is ‘appropriate.’

   “ We are already on record of being opposed to the current TMDL standards from the state.”  

   Advisory measure

   Klamath County voters will be asked Nov. 2 whether the county should stay involved in KBRA and dam removal negotiations and implementation. The vote is advisory and would not legally bind the county.

   The section of the 369-page KBRA document that mentions appropriate TMDL standards has been a contentious issue among vocal leaders on both sides of the issue.

   Elliott and Tom Mallams, president of the Off-Project Water Users Association and a vocal opponent of the KBRA, have argued several times during county meetings the past month about the meaning of the TMDL section of the agreement.  

   Mallams says TMDLs never should have been a part of the KBRA.

   “It’s just enforcing more regulations on us,” he said. “They’re putting all these caveats in (the KBRA) that will further stifle agriculture in the Klamath Basin.”

   Greg Addington, executive director of the Klamath Water Users Association, said original drafts of the agreement mandated participants to meet current TMDL standards, but later the wording was purposefully made more ambiguous so water users could only be held to TMDL standards they deemed “appropriate.”

   “It makes the paragraph mean nothing,” he said. “It doesn’t bind us to anything.”

   Compliance with current TMDL standards is already mandated by the state.

   “Legal obligations are defined by law outside the KBRA; the KBRA does not change your legal obligations,” said Paul Simmons, an attorney for the Klamath Water Users Association.

   Many supporters and opponents of the KBRA agree that current TMDL standards for Klamath County are unattainable, since pollutants such as phosphorous and nitrogen are found naturally in deposits throughout the upper Klamath Basin.

   “The water bubbles out of the ground in the Upper Klamath Basin already out of compliance with current TMDL standards,” Mallams said.

Side Bar

How KBRA section 20.5.4 B reads

   "The Parties commit, subject to Applicable Law, to support the development and implementation of appropriate TMDLs and other water quality improvement programs adopted by the states within the Klamath Basin."