Allegations of outside influence on TMDLs sent to water board meeting 

TMDLs are identified pollutant sources in a river, the limits of which are used as a regulatory tool to keep the river from being considered “impaired” for its beneficial uses.

According to the WQCB’s Web site, the regional water board today will be considering approval of the TMDLs for the Klamath River.

Siskiyou County’s supervisors and County Counsel Thomas Guarino have contended at previous meetings of the WQCB that they believe that the TMDLs developed for the Klamath were created through a flawed process.

“Specifically, the County raised concerns that the NCRWQCB Board and staff had interacted behind the scenes with members of the Tribes, Non-Governmental Organizations (NGOs), and others in preparing the draft TMDL and that this influence by individuals and organizations with a predisposition to dam removal had tainted the TMDL process,” reads the beginning of the comments Cook and Bennett will be presenting.

Guarino, who drafted the comments, argues that the e-mails, which were received as part of a Public Records Act request, “validate the County’s concerns.”

Samantha Olson, of the State Water Resources Control Board’s Office of the Chief Counsel, sent the e-mails to Guarino and states in a letter addressed to him, “I do not believe that you will find the correspondence between Settlement Parties and Regional Board Staff relevant for Siskiyou’s comments on the Klamath TMDL.

“As I stated ... the Regional Board is not a party to any settlement agreement and staff participated within the limited scope of discussing PacifiCorp’s implementation of water quality measures in an interim period when certain studies are conducted.” 

Guarino cites a number of e-mails from NCRWQCB Executive Officer Catherine Kuhlman that the county believes reveal inappropriate influence over the TMDL process. The e-mails are to a number of recipients, including the State Water Resources Board, the California Department of Resources, Trout Unlimited, the Pacific Coast Federation of Fisherman’s Association, dam owner PacifiCorp and others.

Guarino quotes one instance in which Kuhlman states, “‘As staff, we have worked extensively with the [United States Environmental Protection Agency], Oregon Department of Environmental Quality, and the California Tribes to develop and refine our science.’”

Guarino comments that the county believes that “[b]oth the Oregon Department of Environmental Quality and the California Tribes are known to have a predisposition toward dam removal.” The WQCB has noted at previous meetings that it has worked on the Klamath TMDL with the Oregon DEQ because the river runs through both states and one identified source of pollutants has been the loading coming across the state line into California.

Other concerns voiced in the comments include a concern that the TMDLs could be connected to PacifiCorp’s 401 certification under the Clean Water Act, a certification required by law before the company can relicense its dams along the Klamath with the Federal Energy Regulatory Committee. 

In an e-mail to Kurt Burkholder  of the Oregon DEQ, Kuhlman states, “‘The water quality agencies, in lieu of 401 certification, are seeking assurance and control over the measures taken by PacifiCorp to reduce pollutant loadings as will be requested in the proposed TMDLs ... PacifiCorp wishes to maintain control, and reduce the role of agencies to less than that of the parties serving on the [interim] committee.

“‘...This makes compliance with the Clean Water Act purely voluntary and funding and decision-making for water quality not transparent.’”

Also alleged in the comments is inappropriate intervention in the process by a WQCB board member who serves as legal counsel for the Yurok Tribe.

Another concern expressed is that the Klamath Basin Restoration Agreement, a restoration plan for the Klamath Basin hinged on the removal of PacifiCorp’s four dams, is expected to act as “‘the functional equivalent to a fully funded TMDL implementation plan,’” as quoted from one of Kuhlman’s e-mails.

Guarino requests that the comments, along with all of the e-mails received from the WQCB, be entered into the record.

“It is respectfully requested that the Regional Board consider these influences on the process and recommend that it be referred back to staff to start over in an open and transparent manner, disclosing all of the information that was discussed and omitted or included at the request of those parties who may have had a set objective for dam removal rather than an objective study of an appropriate TMDL.

“Further, it is the County’s position that it is inappropriate for the Board to adopt a TMDL clearly influenced by other agreements rather than science and regulatory requirements.” 

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted
material  herein is distributed without profit or payment to those who have
expressed  a  prior interest in receiving this information for non-profit
research and  educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml