SAN
JOAQUIN
RIVER
Dissolved Oxygen
Total Maximum Daily Load
Stakeholder Process
SJR Dissolved Oxygen TMDL Steering Committee
DRAFT Meeting Notes - Draft 1 - August 18, 1999
By: Kevin Wolf, kjwolf@dcn.davis.ca.us
Note: Send comments and suggested changes to me by the 14th and I will incorporate them in the notes we deliver to the Steering Committee on the 15th.
Attending: Al Brizard (SCFB), Russ Brown (JSA), Carl Chen (Systech), Doug Cullzins (Stockton), Earle Cummings (DWR), Jay Goold (Western United Dairymen), Phil Govea (Manteca), Mary Hildebrand (SJFB), Joe Karkoski (USEPA), Vance Kennedy (Farm Bureau), Tom King (CVRWQCB), G. Fred Lee (Delta Keeper), Peggy Lehman (DWR), Ronda Lucas (Farm Bureau), Dan Madden (City of Turlock), Paul Marshall (CalFed), Frank Motzkus (City of Tracy), Bob Murdoch (Stockton), Casey Ralston (DWR), Garner Reynolds (Modesto), Jeanette Thomas (Stockton), Alice Tulloch, Walter Ward (Modesto ID), Dennis Westcot (CVRWQCB), Kevin Wolf (facilitation and notes), Wayne Zipser (Farm Bureau)
Next Meetings:
Executive Committee:
September 1, 1999 1:30 - 3:30 pm, 2500 Navy Drive, Stockton
Steering Committee:
September 15, 1999, 9 am - 12:15, 2500 Navy Drive, Stockton
Technical Committee:
September 13, 1999, 9 am - noon, Jones and Stokes, 2600 V Street, , Sacramento
Clarification of TMDL Requirements
After the July Steering Committee meeting, stakeholders left confused over exactly what they were required to produce by December 2002. The core of the confusion rests in the Clean Water Act's requirement that only a "technical" TMDL be produced that allocates load. This seemed to go against an earlier explanation by Regional Board staff that the stakeholders were required to present an implementation plan along with a TMDL. The Clean Water Act requires that an implementation plan be developed immediately after a TMDL is completed. The Porter Cologne Act in California though requires that an implementation plan be included. What takes priority, the federal or state requirements?
A number of stakeholders believe that it is more logical to wait until after the TMDL delineates which entities and areas should reduce their load before developing an implementation plan. Requiring that an implementation plan be presented at the same time as the TMDL forces the development of a "dual track" of implementation and TMDL research. Some of this research might be wasted if it is directed at an area that ultimately does not have to contribute to load reduction. In general though, the Steering Committee understands the value of pursuing a dual track research process on both the TMDL and implementation alternatives. There is concern that funding for implementation research could reduce funds needed for the TMDL and, if this occurred, the stakeholders might not be able to meet the TMDL requirement. At the same time, there is strong evidence that their best chance of developing and implementing their own preferred implementation alternative will be from a dual track process and not by waiting until after the TMDL is final. It may be valuable for the Steering Committee to formalize support for implementation research at the September meeting.
The Technical Committee says it can develop a basic load allocation with the data already available. This will not be final but should provide a rough-cut at the TMDL and will be helpful in directing both the TMDL and implementation research. Some concern was expressed over whether this rough-cut TMDL might not be used to the detriment of certain stakeholders in the meantime. The Technical Committee representatives stated that they would publicly defend against the misuse of any rough cut TMDL.
This last April, the Regional Board passed the Bay Toxic Cleanup Plan, which states that the Steering Committee can develop both a TMDL and an implementation plan. If the Steering Commmittee does not follow through with this, it will be the USEPA's or Regional Board and staff's responsibility. For a stakeholder process to work, the Regional Board outlines the following strategies and tasks:
Steering and Technical Committees be organized
By December 1999, the Steering Committee makes significant progress toward ensuring that the needed research will be completed in a timely basis.
By December 2002, sources of the loading are to be identified and a reduction in load allocated.
By December 2002, an implementation plan be presented to the Regional Board that is supported by research and can theoretically resolve the low dissolved oxygen problem. The implementation plan should include alternatives and a cost analysis.
Included with the implementation plan is a requirement for compliance monitoring to measure the effectiveness of the of load allocation reduction.
Some Steering Committee members would like to have the Regional Board clarify this discrepancy between what they are requiring and what the USEPA/Clean Water Act requires. The Regional Board staff will present more details at the next meeting. At that time, the Steering Committee will consider requesting time at the Regional Board's December meeting to explain the progress made so far and to clarify this and any other issues. Could the new members of the Central Valley RWQCB overturn the requirement that an implementation plan be included with the TMDL? In addition, stakeholders want to know that the Central Valley Regional Board's directives and decisions are aligned with the SWRCB and won't be overturned in the future.
The USEPA is in the process of redoing its TMDL regulations and it is anticipated that they will require concurrent submission of an implementation plan as part of the TMDL. This proposed rule change will not likely be finalized before the end of the year and may take a full year. In addition, it may never be finalized. As soon as the draft rule change is presented in the Federal Register, it will be circulated to the stakeholders via the email listserv.
If the Regional Board only required that a TMDL without an implementation plan be presented at the end of 2002, it could be forced into reducing the load as per the TMDL through lawsuits and possible new federal or state regulations and laws. This could eliminate the chance of the stakeholders developing their own preferred alternative implementation plan from being enacted. For example, the Regional Board can require that animal feeding operations have NPDES permits and could enact permits for non-point source pollution discharge. Some stakeholders including representatives from the farm community oppose both of these implementation steps. It is more likely that these types of actions will not be pursued if the stakeholders have developed their own preferred implementation alternative that would meet the dissolved oxygen objectives.
One of the key questions stakeholders have for the Regional Board and staff is how flexible will they allow the TMDL to be. They understand that as an adaptive management plan, the implementation plan will be flexible, but what occurs to the TMDL if new research shows that one or more of the parties is not responsible for the load reduction, can the TMDL be changed? Right now the TMDL will come up for review and change every 3 (4?) years before the Regional Board. Can changes occur sooner if research provides sufficient evidence sooner that the original TMDL is in error? What will occur if studies show that aeration can solve the low dissolved oxygen problem alone and the implementation plan provides the funding to install and operate the aerators? Will a load reduction still be required?
Right now there are only two dates set by the Regional Board for meeting certain levels of progress. Should we have other interim milestones between December 1999 and December 2002?
Will the Regional Board or USEPA let this stakeholder process go forward and allow additional discharge to occur before the TMDL is completed? One part of the new regulations being considered by the USEPA would allow up to 20% increases in the load before the TMDL is finished. Would the Regional Board go along with this? Which regulatory body has final say over these issues? (Note: If the 20% additional loading is allowed, it is anticipated that the environmental community will file lawsuits to stop it from being implemented.)
The Bay Protection Program was authorized by the Legislature in late 1980's and reauthorized in 1993. The last step of the program was for Regional Boards to prioritize hotspots and develop cleanup plans for the worst of these. Region 5 staff did so. The plans were approved by the Central Valley Regional Board in April 1999 and by the State Board as part of the Statewide Consolidated Cleanup plan in June or July. They have now gone to the Office of Administrative Law for review. If approved, the Cleanup Plans will become a Statewide Water Quality Policy. Now, the Bay Protection Legislation has sunset. However, at present there is no intention of the Bay Protection Water Quality Policy ever sunsetting. Hotspots would be delisted when the problem is corrected.
CalFed's Low Dissolved Oxygen Work Group
Paul Marshall explained that CalFed has developed a special work group to incorporate our low dissolved oxygen work into their efforts. This is mostly being done to ensure that our work is fully integrated with the direction they are going and to ensure that the public participation process guidelines they are pursuing in all their programs is being met.
The first Work Group meeting is August 26, 1999. Paul will send an agenda to the listserv to ensure all are welcome to attend. CalFed is requiring at least one representative from our Executive Committee and one from our Technical Committee attends. Peggy Lehman and Carl Chen stated that they would be there from the Technical Committee. Bob Murdoch from the Steering Committee will attend and Ronda Lucas will try to make it.
The Steering Committee agreed to participate in the Work Group but did not want to pledge to support all that might come out of the process at this time. The September meeting agenda will allocate time for a report from those who attended the CalFed Work Group meeting and further discussion will occur then.
Flow and the TMDL
How will alternative flow options be incorporated into the TMDL and implementation plan? Steering Committee members expressed support for evaluating how different flow regimes could benefit dissolved oxygen levels. Preliminary analysis using Carl Chen's model shows that increased flows benefit DO. One of the ways this likely occurs is because increased flows reduce the amount of residence time the algae have in the stream and thus reduces the amount of algae reproduced.
Chris Foe has told the stakeholders that the Regional Board is not likely to accept anything in the implementation plan that the stakeholders cannot ensure occurs. Thus proposals to increase flows or reduce exports that do not have agreements from the stakeholders affected by such changes, will not likely be accepted and should thus not be included in the TMDL and implementation plan. This could be an issue, which the stakeholders bring before the Board in December for further clarification.
Flow changes are likely to occur within the San Joaquin River system between now and 2002 as a result of the possible listing of steelhead and fall run salmon, FERC relicensing decisions, the current SWRCB Delta hearings, the implementation of South Delta tidal barriers, the barrier at the head of Old River, the Trinity River decision, lawsuits and other factors. The stakeholders want to be able to analyze how these changes (and other scenarios) could impact net flow at Stockton and dissolved oxygen levels.
The Western United Dairymen and the State Farm Bureau
have allocated $500 each to pay for Peggy Lehman's travel cost so that she can join Vance Kennedy in attending a conference in Mid West on tracers and other research that could benefit our TMDL research. Vance has done some good work in setting up a number of important meetings for Peggy and he while on this trip. The stakeholders thanked the Western and the Farm Bureau for their support with this effort. Peggy will report back at a future meeting on what she learned from the trip.
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