D1610 Urgency Change Petition Comments 6.23.10

Aaron Miller
Permitting Section
Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812
scwatucp@waterboards.ca.gov or

Grant Davis: General Manager
Sonoma County Water Agency
P.O. Box 11628
Santa Rosa, CA 95406
Telephone: (707) 526-5370
Fax: (707) 544-6123
E-Mail: rdp@scwa.ca.gov


SWRCB Order WR 2010-0018-DWR 5-24-2010
SUBMITTED BY: Brenda Adelman on behalf of RRWPC

RRWPC has been tracking water quality issues in the lower Russian River (Healdsburg to Jenner) for 30 years. We are neither scientists nor legal experts, but we have studied water quality issues all that time and have accumulated a vast library of reports, studies, presentations, etc. from experts on these issues. We will draw on those documents as background for this Protest.

This Protest is being filed on behalf of Russian River Watershed Protection Committee (RRWPC). We are a nonprofit public benefit organization incorporated in the State of California since 1980. Our supporters number approximately 1200 property and business owners, recreationists, and other concerned citizens in the lower river area from Healdsburg to Jenner. We also have a great deal of support from many others who appreciate our advocacy on behalf of the Russian River.

RRWPC supporters and activists utilize the Russian River for recreation and/or tourism, for fishing, swimming, for artistic expression, spiritual well being, for exercise and personal health of ourselves, family, friends and pets, and for replenishment of health and energy needed to balance out the stresses of modern day life. Due to its proximity to Bay Area urban centers, the beautiful and peaceful lower Russian River is easy to access and allows a natural refuge from everyday cares. Many of our supporters own properties in the lower river for their summer enjoyment, but reside and work in the greater Bay Area and beyond. A large number have submitted separate letters of concern on this issue.

On May 13, 2010, RRWPC submitted extensive comments and attachments regarding the Petition to Permanently Change D1610 (25 pages and 32 attachments). Since many of the key issues in the Petition for a Permanent Change were the same or similar as for this Temporary Order, we hereby reference that entire packet as part of the record for this Temporary Change Order. Besides the main comments, we include the “List of Attachments” (Attachment #1) for those comments, but will not attach the actual documents, since you have them on file in your office.
Furthermore, we just completed comments on SCWA’s EIR Scoping Notice for the Estuary Project, (Attachment #2) where we argue that it is inappropriate to separate that EIR from the EIR on D1610. In that packet we include our response to a recent Sonoma County Gazette column by Dr. William Hearn (Attachment #3) on why the Estuary Project is necessary. We include that packet with these comments. It also includes a ten-page photo report on water quality in the Russian River (Attachment #4) in which you can see what water quality problems exist in the lower Russian in the summer during low flow.

We have several major concerns regarding the issuing of this Order:
• We question the “urgency” designation and subsequent elimination of CEQA review (finding #1)
• Flow decrease as measured at Hacienda from 125 cfs to 70 cfs and relationship (or non-relationship) to opening and closing of the mouth
• Failure to address and/or acknowledge water quality impacts of low flow to lower river/failure to evaluate data collected in prior years
• We challenge the four findings upon which this Order is based (#1 noted above)
o Proposed change made without injury to other users of water
o No unreasonable effect on fish, wildlife, or other instream beneficial uses
o Change is in public interest
• Terms and Conditions: we have concerns and shall comment upon numbers: #1 (second part) and #8.

The “urgency” designation is defined in the Order as being, “the existence of circumstances from which the board may in its judgment conclude that the proposed temporary change is necessary to further the constitutional policy that the water resources of the state be put to beneficial use to the fullest extent of which they are capable and that waste of water be prevented….”

Unfortunately, this definition is so broad that it could apply to almost any water project. What is meant by “put to beneficial use to the fullest extent possible”? Saving steelhead populations may be an urgent matter, but there is no clear evidence that this project will accomplish that goal. There is no clear evidence that keeping flows at 70 cfs or even 85 cfs will allow the mouth to close, since it was open most of last summer when flows were lower than that.
We provide evidence herein (see Photo Project Report) that indicates further degradation of the lower Russian River will probably occur if these low flows continue. Furthermore, this problem is turning into a health and safety issue because pathogen contamination (Attachment #5) at lower river beaches greatly increased last year during low flows (63 cfs average in August). There were numerous reports of people and pets having serious health problems as a result. (Attachment #6) Also, Ludwigia is known to harbor mosquitoes that carry West Nile Virus and we have heard no mention made of that concern. These are beneficial uses that have been virtually ignored by the Biological Opinion and the Temporary and proposed Permanent Orders to lower stream flows.

At what point does an urgent matter turn into a chronic problem? The “urgency” declaration allows skirting of CEQA and NEPA. There is no serious attempt to consider that it is the flooding of a relatively few parcels in Jenner that is driving this process. Dr. Hearn admitted to us that the 125 cfs could probably be maintained if the few Jenner structures subject to flooding at low levels could be raised. Yet studies of the feasibility of doing this have been put off until later.

Even though this project is experimental, we have heard that these urgency declarations will continue for the next seven or eight years until the permanent change to D1610 will be complete. And that’s assuming the project will work. Minimizing flows appears to be an ironic final effort to save species that have been devastated by a lack of sustainable flows in the tributaries. (We realize that some steps have been taken of late to try and remedy the situation, but it may be a case of too little and too late.) We are skeptical that lowering flows to manage the Estuary will work since ocean conditions have also been greatly degraded of late and global warming is likely to raise sea levels and temperatures to further add to the problem. What studies will be conducted to address these issues?
If this project could be accomplished without collateral damage to the lower river, we wouldn’t be as concerned. Later on, we will address what we believe to be an inadequate and ineffective monitoring program contained within this Order (Condition #8). That program has failed to address critical issues over the last eight years of Temporary Urgency Orders (2002, 2004, 2007, 2009). While the justification for declaring an emergency was slightly different in prior years, the ultimate result has been the same. The result is nutrient and other pollution pictured in our Photo Report (Attachment #4), in monitoring that indicates excessive temperatures, in multiple beach postings for excessive pathogen occurrences, and in reports of human and animal illness as a result of having contact with the water. This project is also having a chilling effect on recreation and the economy.

RRWPC fully addressed this issue in our attached scoping comments on the Estuary Project, pages 4-6 (Attachment #2). The following paragraphs are pertinent to this Order:

“Another aspect to this situation is the link between low flows and Estuary closure. Our attachments submitted to SCWA with the Permanent Change Petition to D1610 comments included a chart of the mouth closures (#7). In looking at the chart, it is clear that the trend in the last ten years or so has been for the mouth to remain open most of the time in July and August no matter what the flow. In 2009 there were no closures between June 25th and September 6th, although summer flows averaged as low as 63 cfs in August.

For example, 2002 was a low flow year and the mouth was open most of the time until Oct. 1st, but for two very brief closures in May and June. 2003 was open through September. 2004 was open until October, but for three brief openings in April, May, July/August. 2005 was open all year until mid-September. 2006 was open all year until late October. 2007 was open all summer (May through September) until mid-October. 2008 was closed much of May, but had only two closures for about a week each during June through September. These statistics seem to dispute the NOP claim that frequently the mouth closes in the summer time, at least in the last ten years. We wonder if the barrier beach would be constructed if the first mouth opening comes in September?”

I include document: Russian River Estuary Management Events, 1996-2009 from SCWA, as Attachment #7. River mouth closures are listed here for that period.


RRWPC responded to Dr. William Hearn’s article in the June 3rd edition of the Sonoma County Gazette (Attachment #3) with these words:

His phrase, “not duly impact water quality” has not been defined and no specific regulatory standards are offered. It merely states that the Regional Water Quality Control Board provided oversight on water quality monitoring. Yet, nutrient monitoring conducted last year incorporated excessive detection limits, which resulted in worthless data. Temperature was extremely high, but no concern expressed. We are not aware of whether the Regional Board paid attention to this process.

Our photo project of the lower Russian River all last summer documented extensive amounts and a large variety of algae and invasive Ludwigia. This problem has not been quantified and we are hopeful that the photographs will provide evidence to the State that validates our concern. Dr. Hearn’s article sloughs off the problem by stating that nutrients and pathogens are the result of failing septic systems in the lower river, while providing absolutely no scientific evidence to that effect. Actually, there is a report that will soon be released out of UC Davis indicating (we are told) that a significant amount of pathogens in the Russian River come from the heavily impaired Laguna. It is obvious to all that much of the nutrient pollution does as well. (There is also a report due out soon on water quality from USGS.)

Furthermore, the article fails to mention that there is no baseline data for toxins, nutrients, and sedimentary loads. In fact, to our knowledge, there is minimal data being collected. Unregulated chemicals in wastewater discharges are also being virtually ignored. Furthermore, it does not appear that toxins in the Estuary dead zone are being tracked either. While stating that there is no concern about wastewater discharges since they only occur in the winter. However, nutrients and pathogens from discharges reside in the sediments in the summer and get released into the water column when they are disturbed. No alternative plan has been provided should harmful water quality impacts from low flow be discovered in the interval. (CEQA would require the analysis of alternatives.)
RRWPC also addressed this issue at length in our comments on the proposed “Permanent Change to D1610” submitted last May 13th (pages 16-23)

The Temporary Urgent Change Order, the Biological Opinion, the Petition for Permanent changes to D1610, the Scoping for the Estuary Project, and all related documents, fail to address water quality issues in the lower river between Forestville and Duncans Mills, (other than a limited monitoring program with no reporting, evaluative, or follow-up action requirements) yet it is that stretch of the river that will see the greatest diminished flows. These are the nuisances most often noted in the 24 citizen testimonials included in the packet. You only have to look at the pictures in our 2009 Photo Report on water quality in the lower river and the impairment is obvious.
Almost everything in this Order avoids addressing the actual river situation. We have attached an undated letter from Cat Kuhlman to the Tam Doduc, Chair of the State Board (probably written in 2006 as the 303d list was being considered). (Attachment #8) This letter gives the Regional Board’s reasons for supporting the continued listing of the Laguna for nutrients.

She quotes the North Coast Basin Plan as saying, “Waters shall not contain biostimulatory substances in concentrations that promote aquatic growths to the extent that such growths cause nuisance or adversely affect beneficial uses.” While she was speaking to conditions in the Laguna, the Basin Plan applies to the entire Russian River. In fact, it is likely that much of the lower river’s nutrient pollution comes from the Laguna. RRWPC strongly supports studies to determine whether the river should be listed on the 303d list for nutrients.

Ms. Kuhlman refers to the City of Santa Rosa’s argument that there are no numeric standards for nutrients and therefore they should not be held accountable for meeting standards. She makes a reference to Ludwigia removal here in the Laguna. In fact, the program, though temporarily successful, ran out of funding and could not be maintained, and today the Ludwigia is back full force, worse than ever. I include a recent picture of what it looks like now (from Stony Point Bridge looking east just South of Rohnert Park Expressway). (Attachment #9)

In any case, Ms. Kuhlman goes into great analysis as to why the Laguna deserves to continue to be listed for nutrients and ultimately, her view prevailed. The nutrient studies conducted last year by SCWA used inappropriate detection limits and the outcome (as explained to me by a Regional Board staff person) was inappropriate data. Furthermore, there was no analysis of the data, so nothing meaningful could come from it in terms of protection for the area of the river to be subjected to low flows. How can we be assured that this won’t repeat itself this year?

I enclose a letter from Jane Nielson, Ph.D. geologist (Attachment #10 A & B) who worked for USGS for over 22 years. In it she criticizes SCWA for not analyzing the data they collected last summer. She says, “Because no valid statistical analysis was done on those data (i.e., 2009 water quality monitoring data for 2009 Temporary Urgency Order), neither SCWA, County officials, or the public can yet determine whether or not the composition of river waters showed significant variations related to other analyzable events that may have occurred before, during, or after the period of lowered flow regime.”

Basically, Don Seymour replied that analysis of the data was not a requirement in the Order. We request that this situation be corrected and full data analysis be required through this Order. In regards to Ludwigia and nutrients, we ask that the standards described in Ms. Kuhlman’s letter be applied here. There is too much nutrient pollution that can only be exacerbated by low flow.

I’d like to also request in this regard, that you require SCWA to monitor for blue-green algae, specifically anabaena, a neurotoxin, which was identified on Monte Rio Kid’s Beach last October 6th. (John Short email: Attachment #11)
There is another health related issue. We saw many people lounging on the Ludwigia, totally unaware of the potential for being bitten by a mosquito that carries West Nile Virus. I’m not sure what the remedy for that is, other than scaring everyone away from the river entirely, but it emphasizes the importance of doing something about this problem.
The issues we raise here should also serve to challenge the determination in this Order that this change (lowered flows) “….will not provide injury to any other water user”. We also know that Steve Mack, Manager of the Sweetwater Springs Water District has also expressed concern about the possible impacts on District wells. We believe that issue should be addressed as well, along with the issue raised by Rick Ryan of Jenner about the impact to private wells by this project. This is an issue ignored by this Order, which simply makes the declaration that no impacts will occur. We would like to see an analysis of lower river private and quasi-public wells, including their location, size, depth, amount of water used, and potential water quality problems they might have.

The determination of this Order that there will be no unreasonable effect upon fish, wildlife, and other beneficial instream uses has simply not been substantiated with evidence. Similarly, the finding that there will be no injury to any user of water, also goes unsubstantiated. This latter finding is clearly contradicted in the testimonials provided in these comments.

The Order determines that this action is in the public interest. If you just look at the single factor of saving the fish, one could logically come to that conclusion. Yet of course that is not the case. We have raised many issues here about human and environmental health that will be affected by this flow reduction. We urge you to put in place better monitoring protocols and require better assessment and reporting. There should be a way to trigger higher flows if serious impacts should be determined. Last year the Regional Board was supposedly involved in setting up the monitoring program, yet something must have broken down, because staff I spoke with was not happy with the results of the program, and we have no idea why changes weren’t made when it became known that things weren’t right. Stricter oversight of this program is sorely needed.

RRWPC disagrees with Terms #1 and #8. #1 is about the flow reduction, which is to be decreased to 70 to 85 cfs at Hacienda. Because of all the concerns expressed in these comments, we cannot support the flow reduction ordered until more information is provided about environmental impacts to water quality, human and environmental health and the overall well being of the lower river watershed. Recreation and the economy have not even been discussed. Laura Wilson of Johnson’s Beach (Attachment #12) clearly addresses the pathogen issue in regards to her business. They will suffer a great deal as a result of this project and her concerns have been echoed throughout the community. While it may be important ultimately override some of the concerns in order to provide improved habitat for the fish, to do so without environmental review is very problematic on many levels.

According to Term #8, the Regional Board will give oversight in setting up the Monitoring program. The monitoring emphasis was on the Estuary however; prior programs failed to develop meaningful data for most pollutants affecting the lower river (This may be addressed by USGS studies which have not been made available as yet.). Furthermore, an analysis of the data is essential, as called for by Jane Nielson (Attachments #10 A & B).

I believe the Board ordered monitoring programs in 2002, 2004, 2007, and 2009, but we haven’t seen a summary report resulting from those efforts. Why not require and end of year report that provides meaningful analysis? And then, if you continue to grant this reduced flow, mitigations need to be put in place to address the issues raised. Where is the baseline data for all the issues we have raised? How can we tell if things are getting worse over the coming years if monitoring efforts and baseline data are inadequate?
There are a lot of things wrong in the lower river and very little has been addressed. SCWA will be coming to you every year for the next 7-8 years for the same ruling, probably under the same circumstances, as our river community degrades on all levels year after year. You are obligated to do something about this situation. PLEASE ADDRESS OUR CONCERNS.

#1: RRWPC List of Attachments for comments on SCWA Petition to permanently change D1610 flows, Brenda Adelman, May 13, 2010
#2: RRWPC Scoping Comments on SCWA’s Notice of Preparation of a Draft EIR for Russian River Estuary, Brenda Adelman, June 21, 2010
#3: “Why Change Summer Flows in the Russian River?”, Dr. Bill Hearn, National Marine Fisheries Service, Sonoma County Gazette, June 3, 2010
#4: RRWPC 2009 Russian River Photo Project, Brenda Adelman, June 21, 2010
#5: Russian River Low Flow Enterococcus Results, 2009
#6: Testimonials (24) from various Russian River recreationists, business and property owners, etc. Collected by RRWPC in 2009 in response to low flow.
#7: Russian River Estuary Management Events, 1996-2009, SCWA
#8: “Additional Comments for the 2004-2006 303d List Update”: letter from Cat Kuhlman, Executive Officer of Regional Water Board to Tam Doduc, Chair of SWRCB, undated but probably written in early, 2006
#9: Photo of Ludwigia taken from Stony Point Bridge just south of Rohnert Park Expressway.
#10A: Statistics and Water Quality Factors, Jane Nielson email, March 16, 2010
#10B: Letter from SWIG (Jane Nielson) on same topic to Victoria Whitney of State Board
#11: Algae: email from John Short of Regional Board to Brenda Adelman 10-19-‘09
#12: Letter to State Board from Laura Wilson, owner of Johnson’s Beach & Resort, April 30, 2010