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Levine’s Water Law Talk from SRFC

Below – is a copy of my presentation at the Salmonid Restoration Federation Conference

Bits and pieces of this presentation may be useful to some.

COAST ACTION GROUP – P.O. BOX 215 – POINT ARENA, CA 95468 – (707) 542-4408
Presented by Alan Levine

California Water Law Can Help Salmon – A Short “How To” Guide

This is an appeal to create interest in, or make the case, that action (activity) is needed on to protect salmon from the position of protection – as much as from the position of restoration. In fact without folks out there addressing projects and miss-use, there would be little to drive the restoration side of the issue.

Who is it that comments on projects, works on Water Board appointments, comments and works on TMDL policy, Basin Planning Policy, Waivers of Waste Discharge,  chases down Timber Harvest Plans, deals with legislation (knocking down bad stuff, launching good stuff), etc, etc.???

Without a piece of litigation that got a Consent Decree for scheduling TMDLs and work on State TMDL Policy and maintaining Listings for Impaired waterbodies much of the horse power behind current Restoration Funding Would not be there.

Restoration vs. Protection  – You can not assume that salmon can be recovered through restoration – alone. Recovery of salmon depends on capability of employing a combination of all tools available. Why restore it if you can’t protect it? There is necessity to work all angles within restoration and protection Utilities to be successful in the goal of recovery of salmon. This means that salmon resource-based concerned parties must be well versed in the application of all regulatory regimes that will support and aid in goal attainment.

Regulatory Utilities/Tools – ALL THINGS THAT NEED TO BE FOLLOWED AND WORKED ON –  AND – that can help aid salmon recovery include: California Water Code (pollution and flow law), Basin Plan for the North Coast (Water Quality Objectives, pollution standards, TMDL Action Plans, anti-degradation language), Fish & Game Code, Forest Practice Act, and other aspects of Cal Resources Code including the California Environmental Quality Act.

“Well versed” means that the regulatory framework must be understood and used to secure compliance with the law and whatever protections and/or restorative processes supported by law.

This work includes:  developing relationships with agency staff, requesting notice on projects of interest, and participating in project environmental review and policy development processes: Water –  Regional and State Water Board rulemaking, TMDL Action Plans, permitting process – including  Water Rights Adjudication – Appeals – Complaints , and Basin Plan Amendments – ON THE TABLE RIPARIAN PROTECTION – SEDIMENT.

Water quality issues fall into other agency regulatory mandates: Fish & Game Code (1600 permitting process and pollution sanctions, Coho Recovery Guidelines), Forest Practices ( Board of Forestry rule making – anti-pollution regs, Threatened and Impaired Rules).

Clean Water Regulations can help protect salmon and support recovery and restoration.

Pollution and lack of sufficient flows are both aspects (often related) that effect the biologic function of streams, fishery loss.  The failure of most north coast rivers and streams to meet Water Quality Standards has resulted in their listing on the State’s CWA 303 (d) List of Impaired Waters.

Flows – Surface water flows and use fall under the jurisdiction of the SWRCB – Division of water Rights. Tools: Water Rights Complaints for unlawful/wasteful use, Protest Water Rights applications – applications fall under CEQA review. Petition SWRCB. TMDL flow objectives.

Ongoing Actions: TU/Peregrine Audubon Petition to SWRCB, Flow issues in TMDLs – Should the Riparian Protection Basin Plan Amendment include flow issues? Do flow issues affect instream pollutant issues (temperature, algae, hydrophytes)?

Water Quality –  Failure to meet Water Quality Standards (WQS =  WQ Objectives + Beneficial Uses noted in the Basin Plan) mandates impaired listing and a TMDL (with Action Plan if promulgated by the State).

TMDLs – Pollutant, point and non-point source, assessment and planning device for impaired waterbody – includes problem statement, pollutant source assessment, and allocation of pollutant loads that will achieve attainment of WQS – including targets for pollutant reduction and land use management to attain WQS. EPA TMDLs have no Action Plans.  Regional Board TMDLs are Water Quality Control Plans under state Water Code and must be adopted into the Basin Plan with an Action Plan that complies with Section 13242 Cal Water Code – including a description of actions to be taken, timelines for implementation, and monitoring to assure compliance.

TMDL Status: Garcia – Default land use rules with option to develop “voluntary plans” – Garcia is recovering rapidly, Scott – relies heavily on voluntary actions, no default land use prescriptions with back up from WDRs,  Shasta – same as Scott with flow objectives. Basin Plan Amendment for Sediment and Riparian/Wetland protection to be a backup for TMDLs.

Basin Plan –  What is it?  Is enforceable law. Includes: Beneficial Uses, Water Quality Objectives – numeric or narrative description, and Implementation Plans – including: Prohibitions , Anti-deg language, adopted TMDL/Action Plans,  and other Basin Plan Amendments. Ongoing Actions: Sediment and Riparian and Wetland Protection Amendments (which may include new WQ Objectives), TMDLs/Action Plan for Klamath and Russian River/Laguna de Santa Rosa. Approved TMDLs/Action Plans – Garcia, Shasta, and Scott Rivers

Violation of the Basin Plan = violation of state law and should be reported to Regional Board.

Regional Board enforcement and Implementation Responsibility – Waste Discharge Requirements and Conditional Waivers for Waste Discharge Requirements, 401 certifications (of Federal 404 permits), Timber Harvest Plan review,  CEQA project review, ACLs, Cleanup and Abatement Orders, Grants.

What You Can Do – Things to Be On Top Of:

• Maintain Listings – Initiate Listings – Impaired Water Bodies

• Report Basin Plan Violations

• Comment on Projects – TMDL Development – Action Plans,  Development Projects – Diversions (also a project) – THPs

• Request City and County Compliance with State Water Code/NPS Program via TMDL development, Grading Ordinance,  County and City Stormwater Plans.

• Report violation of Diversion/Water Rights License.

• Participate in Policy Development – CESA Coho protections, FPRs, Basin Plan Amendments.

Books by Solano Press: Forest Practice Act and Related Laws,  California Water, Wetlands, Streams and Other Waters, Guide to the California Environmental Quality Act (CEQA),
(800) 931-9373  www.solano.com

Sites for more info:

KRIS Coho (good science bibliography) –   http://krisweb.com
EPA TMDL sites – www.epa.gov/OWOW
EPA Region 9 – TMDLs and other programs – www.epa.gov/region9
State Water Resources Control Board – www.swrcb.ca.gov
Regional Water Quality Control Board, North Coast – www.swrcb.ca.gov/rwqcb1
Department of Water Resources (DWR)- Water Data Library (WDL) – http://wdl.water.ca.gov/
“Riparian Setbacks: Technical Information for Decision Makers” http://www.crwp.org/pdf_files/riparian_setback_paper_jan_2006.pdf
“Riparian Buffer Width, Vegetative Cover, and Nitrogen Removal Effectiveness: A Review of Current Science and Regulations”, http://www.epa.gov/ada/download/reports/600R05118/600R05118.pdf

Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468

Phone: Week Days 707 542-4408
Weekends  707 882-2484