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A Primer on Total Maximum Daily Loads
By Tara L. Mueller and
Sharon E. Duggan
By now most of us are all too familiar with the devastating effects of commercial timber operations on North Coast rivers and streams. Extensive scientific evidence has documented the link between timber harvesting, road and landing construction and related activities, and substantial degradation of water quality. For example, a 2001 University of California report states unequivocally that there is “widespread recognition among environmental scientists that, in the aggregate, timber harvest in coastal California has resulted and continues to result in radical alterations of water, habitat conditions, and perhaps flood risk.” (A Scientific Basis for the Prediction of Cumulative Watershed Effects, Univ. of Calif. Committee on Cumulative Watershed Effects, June 2001, p. 6.) The key question then becomes, “what can be done about this problem?”
Background: The TMDL Process. Just What is a TMDL Anyway?
One of the primary mechanisms for protecting North Coast rivers from the adverse water quality impacts of timber operations is the so-called “total maximum daily load” or “TMDL” process mandated by the federal Clean Water Act. (33 U.S.C. § 1313(d).) This process helps ensure that water quality in rivers, streams, lakes, and other water bodies meet federally required, state-adopted standards. The Clean Water Act requires states to adopt water quality standards to protect each water body in the state. Water quality standards consist of qualitative and quantitative water quality criteria designed to protect designated beneficial uses of the water body, such as cold water fisheries and habitat, recreation, drinking water, and other uses. Water quality criteria can include requirements such as a prohibition on any measurable increase in turbidity, specified temperatures needed to protect cold-water fisheries, etc. The responsibility for adopting water quality standards for water bodies in coastal northern California lies with the North Coast Regional Water Quality Control Board (Regional Board). Once adopted, the water quality standards are incorporated into the North Coast Basin Plan, a comprehensive water quality plan for the entire North Coast region.
The TMDL provisions of the federal Clean Water Act require the Regional Board to designate water bodies that are not currently achieving, or that are not expected to achieve, water quality standards through control of so-called “point source” discharges alone. These water bodies are known as “water quality limited” or “water quality impaired” segments. The Regional Board must revise and update this list of water quality impaired water bodies every two years. The list must include a “priority ranking” of water bodies to be addressed through the TMDL process within the next two years. The list must be reviewed and approved by the State Water Resources Control Board and the U.S. Environmental Protection Agency (EPA).
Once the list of water quality impaired water bodies is approved, the Regional Board must establish, for each listed water body, a TMDL for each pollutant (such as sediment, temperature, dissolved oxygen, etc.) that is preventing, or is expected to prevent, attainment of applicable water quality standards in that water body. Such TMDLs typically are incorporated into the Basin Plan and also must be approved by the State Water Board. A TMDL is a numerical calculation that identifies the maximum quantity of a given pollutant, from all sources (both point and non-point) that can be discharged or “loaded” into the water body on a daily basis, while still permitting that water body to meet the Basin Plan water quality standards for that water body. A TMDL must be established at the level necessary to attain and maintain the applicable water quality standards. If the state fails to establish a TMDL or make any progress towards developing a TMDL after a significant period of time, the EPA must step into the state’s shoes and prepare a TMDL for the state.
Development of a TMDL involves the following steps:
• A determination of how much of a particular pollutant a water body can receive from all sources of pollution (point and non-point) and still meet applicable water quality standards;
• A determination of how much the existing levels of that pollutant must be reduced to meet applicable water quality standards; and
• Allocation of responsibility for reducing pollution among point and non-point source contributors.
Once a TMDL is established, the state Porter Cologne Water Quality Control Act requires the Regional Board to implement the TMDL by adopting a TMDL implementation plan. (Cal. Water Code § 13242.) The implementation plan describes what specific actions will be taken and performance standards must be achieved to ensure that the TMDL is not exceeded. Thus, if properly prepared, implemented and enforced, a TMDL can be a very effective means of forcing dischargers, including timber operators, to cut back on their discharges by specific amounts in order to achieve the load allocations in the TMDL. These load allocations in turn are aimed at achieving measurable, on-the-ground improvements in water quality in a given river, stream or other water body.
Examples of Adopted TMDLs and TMDL Implementation Plans for North Coast Rivers
TMDLs have already been established for sediment and temperature for the South Fork Eel River (Dec. 1999); North Fork Eel River (Dec. 2002); Middle Fork Eel River (Dec. 2003); Upper Main Eel River (Dec. 2004); and Middle Main Eel River (Dec. 2005). (Sediment and temperature TMDLs for the Lower Main Eel are still under development and are expected to be released for public review later this year.) All of these were established by EPA and are available on the Regional Board’s website at: www.waterboards.ca.gov/northcoast/programs/tmdl/Status.html. (The website also has information about other TMDLs that are approved or under development in the North Coast region.) As required by law, the Eel River TMDLs contain specific load allocations, calling for a specific reduction in sediment and temperature loads due to various human activities. For example, the sediment TMDL for the North Fork Eel calls for a 48% reduction in sediment from landslides related to roads and timber harvesting, a 57% reduction in sediment from roads, and a 50% reduction in sediment from tractor harvesting.
The Regional Board has not yet adopted watershed-specific implementation and monitoring plans for the EPA’s Eel River TMDLs and so the load allocations for these segments are not currently being effectively implemented or enforced. However, watershed-specific implementation and monitoring plans for EPA-adopted TMDLs will likely be included in the North Coast-wide TMDL implementation work plan and monitoring strategy, discussed further below, which will be considered by the Regional Board for approval in the coming months. In the meantime, citizens can have an impact on implementation and enforcement of the Eel River TMDLs through various mechanisms, also described in more detail below.
The Eel River TMDLs established by the EPA contrast with the TMDLs the Regional Board recently adopted for the Shasta and Scott Rivers (in January 2007 and September 2006, respectively), both of which include a watershed-specific implementation plan and work plan in addition to the required TMDL load allocations. For example, the Scott River TMDL for sediment (available on the Regional Board’s website) calls for a 31-76% reduction in specified road-related sources of sediment, a 52% reduction in landslides attributable to timber harvesting, and a 63-69% reduction in sources of sediment in or around streams that are attributable to timber harvesting. The Scott River temperature TMDL also contains specific allocations.
In an effort to achieve these sediment load reductions, the adopted Scott River TMDL implementation plan and work plan provide, among other things, that the Regional Board require parties responsible for roads to develop and submit, “on an as-needed, site specific basis,” an Erosion Control Plan and a Monitoring Plan, and to implement such plans through permitting and enforcement actions mandated by the Regional Board. The Scott River TMDL further requires Regional Board staff to prepare a compliance and trend monitoring plan in order to determine the effectiveness of the TMDL. In addition, the Executive Officer of the Board may call for monitoring of specific activities that will likely result in sediment waste discharges or elevated temperatures in the Scott River. The Shasta River TMDLs for temperature and dissolved oxygen contain similar provisions. However, it is not clear whether these monitoring provisions alone will be sufficient to ensure compliance with the sediment load allocations for the Scott and Shasta River watersheds, in the absence of specific mandatory standards with which dischargers must comply.
For example, the adopted TMDL implementation and work plan for the Scott River, and the work plan proposed for the Shasta River, do not go far enough in setting enforceable standards to ensure implementation of the TMDL load allocations. In most respects the plans simply call for voluntary actions, in that the Regional Board “encourages” parties responsible for activities to take action, and provides that parties “should” employ practices and activities. While it may be worthwhile to encourage voluntary action, the Regional Board has an affirmative duty to ensure TMDL implementation. Without quantifiable and enforceable targets to reduce sediment discharges, it is questionable whether the Scott and Shasta River TMDL implementation and work plans will be effective in achieving this result.
With respect to private land timber harvesting specifically, the Scott and Shasta River TMDL implementation and work plans rely largely upon the Regional Board’s participation in existing permitting and review processes as the framework in which to ensure compliance with the TMDLs. However, the timber harvest plan (THP) review process to date has not been adequate to protect these rivers, or other waterways, from degradation. In the absence of dedicated funding for Regional Board staff to fully participate in and maintain the Regional Board’s independent statutory authority in the THP review process, it is likely that this process will not be effective in achieving TMDLs. The implementation and work plans also require the Regional Board to use existing water quality permitting and enforcement tools to regulate discharges from timber harvesting in the Scott and Shasta River watersheds. This includes issuance of specific (individual) waste discharge requirements, and application of the existing general waste discharge requirements and categorical waiver of waste discharge requirements for discharges from timber harvesting on private lands in the North Coast region.
Other TMDL Implementation Mechanisms
In November of 2004, the Regional Board adopted an important resolution which requires the Executive Officer of the Board, in reliance on the information provided in TMDLs, to (among other things) use the Board’s various permitting and enforcement tools to “more effectively and efficaciously pursue compliance with sediment-related standards by all dischargers of sediment waste.” (Regional Board Res. No. R1-2004-0087, available on the Regional Board’s website at www.waterboards.ca.gov/northcoast/programs/basinplan/tipfsiw.html.) The resolution also directs the Executive Officer to “continue ongoing energetic efforts to implement the Regional Board’s previous direction to address cumulative impact issues arising from timber harvest activities,” using a variety of permitting and enforcement tools.
The resolution further calls upon Regional Board staff to develop a North Coast-wide work plan that establishes priorities for addressing sediment discharges and implementing sediment TMDLs at the watershed level, a public guidance document on control of sediment waste discharges, and a North Coast-wide sediment TMDL monitoring strategy. Regional Board staff expects the Regional Board to consider approval of the sediment discharge and sediment TMDL implementation work plan and public guidance document in the summer of 2007, along with a proposed Basin Plan amendment establishing a basin-wide prohibition on sediment waste discharges in the North Coast region (see www.waterboards.ca.gov/northcoast/programs/basinplan/swdp.html). Staff expects the monitoring strategy to be considered for approval sometime in 2008. If approved, the prohibition on sediment discharges will be particularly helpful in implementing TMDLs, because it can provide a clear basis for the Regional Board to take enforcement actions against dischargers or to require dischargers to obtain individual waste discharge requirements in order to comply with the sediment discharge prohibition and load allocations in an adopted TMDL.
How Citizens Can Participate in TMDL Implementation
In addition to reviewing and commenting on the North Coast-wide TMDL implementation and monitoring plans called for in the Regional Board’s 2004 resolution, there are several ways that local citizens can assist in implementation and enforcement of watershed-specific TMDLs. It is important to note that TMDLs for a specific river segment are not directly and independently enforceable. Instead, the provisions of an applicable TMDL must be incorporated into a Regional Board permit (e.g. general or specific waste discharge requirements), Regional Board enforcement order, THP approved by the California Department of Forestry (CDF), or other state or local government permit or regulatory/enforcement action.
Citizens can review proposed THPs to ensure that the plan will comply with any applicable TMDL and TMDL implementation plan. THPs that may directly or cumulatively affect a TMDL-listed water body (either within or downstream of the timber operation) must contain additional analysis and mitigation measures, as required by section 898 of the Forest Practice Rules. Section 916.9 of the Forest Practice Rules also specifically requires timber operations that may adversely affect a TMDL-listed water body to “[c]omply with the terms of a TMDL that has been adopted to address factors that may be affected by timber operations” (i.e. sediment load increase where sediment is a primary limiting factor, thermal load increase where water temperature is a primary limiting factor, etc.) (14 Cal. Code Regs. § 916.9(a)(1).) CDF must deny a plan that fails to comply with an adopted TMDL which is incorporated into the Basin Plan. (14 Cal. Code Regs. § 898.2(h).) Furthermore, CDF must deny a THP if the Regional Board finds that the timber operation in question will result in a discharge into a water body listed as sediment-impaired and that the discharge causes or contributes to a violation of the Basin Plan (which usually will incorporate any adopted TMDLs and TMDL implementation plans). Pub. Res. Code § 4582.71.
Citizens can also request that the Regional Board issue individual waste discharge requirements for specific discharges that will adversely affect a TMDL-listed water body, or to ensure that dischargers adequately comply with the conditions of existing general waste discharge requirements or waivers of such requirements. When commenting on a THP, proposed waste discharge requirements, or any other state or local government permit, citizens should discuss the relevant provisions of any applicable TMDL and TMDL implementation plan and ask that the appropriate load allocations and other requirements of that TMDL be incorporated into that permit. Until the Regional Board adopts TMDL implementation and monitoring strategies for the Eel River segments, citizens also can monitor discharges themselves and request that the Regional Board take enforcement action or require permits with respect to a particular discharger that is not in compliance with the load allocations in a TMDL.
Citizen participation in TMDL implementation and monitoring is key to ensuring that this important legal tool for forcing the clean-up of North Coast rivers impaired by timber operations is truly effective, and for ensuring that timber operators are held responsible for preventing and remedying the damage they have caused.
For More Information:
For more information on these and other subjects related to timber harvesting, readers should consult the Guide to the California Forest Practice Act and Related Laws, by the authors of this article, Sharon Duggan and Tara Mueller. This is a comprehensive resource for citizen activists, landowners, forestry professionals, agency staff and others, discussing all state and federal laws governing the regulation of timber harvesting on private lands in California. The book covers, among other subjects, the Forest Practice Act and its implementing regulations, the Timberland Productivity Act, regulation of timberland conversions, regulation of registered professional foresters and licensed timber operators, local government regulation of timber harvesting, the California Environmental Quality Act, state and federal water quality and endangered species laws, state streambed alteration agreements, state and federal Wild and Scenic Rivers Acts, pesticide regulation, and how to enforce these laws. The book can be purchased for $79.00 from Solano Press, www.solano.com/catalog.htm, 800-931-9373.