1. Information Item- Monterey Coastkeeper v. SWRCB
Impact on North Coast RWQCB Scott and Shasta Ag Waivers
The perspective of the Karuk Tribe

2. Karuk Territory
Territory boundary is approximate

3. Native People Have Lived in the Basin since Time Immemorial
And continue traditional practices today

4. Ag Waivers must comply with:
Anti-Degradation Policy-for both high quality and impaired waters.
Basin Plans-Water Code Section 13269(a)(1) requires that all waivers be consistent with applicable Basin Plans.
Non-Point Source Policy—setting minimum standards for non-point source discharge regulation such as silviculture, agriculture

5. Coastkeeper v. SWRCB focused on compliance with the NPS Policy
1) Coastkeeper failed to exhaust on anti-degradation so court did not consider it. Coastkeeper at ) The Court ruled that the conditions in the Waiver were consistent with the Basin Plan: a) there was inadequate information in the record to refute the Waiver’s tiering of coverage based on use of two pesticides; and b) no alternative to tiered monitoring focusing on high risk discharges was presented, so the Waiver’s monitoring met the Basin Plan requirements. Coastkeeper at

6. NPS Policy requires that Waivers include Five Key Elements
Implementation programs must, at a minimum, address NPS pollution in a manner that achieves and maintains water quality objectives and beneficial uses, including any applicable antidegradation requirements;
High likelihood that program will attain water quality requirements;
Include a specific time schedule, and corresponding quantifyable milestones designed to measure progress towards meeting requirements;
Include sufficient feedback mechanisms to determine if program achieving stated purpose;
Potential consequences for failure to achieve stated purposes.

7. The Monterey Court focused on Number 3-Timeline and milestones
The State Board added Provision 83.5 to the Waiver, requiring dischargers to implement BMPs to reduce or prevent discharges that contribute to WQS exceedances. If BMPs ineffective, they must be improved.
“Conscientious Effort” towards BMP improvement was deemed compliance with WQS.
Provision 83.5 effectively replaced the timelines and milestones of the RWQCB Waiver

8. The Monterey Court ruled that the NPS Plan requires specific timelines and milestones to achieve compliance with WQS.
The Court specifically quoted the NPS Plan: “Management Practice implementation may never be a substitute for meeting water quality requirements.” Monterey at 369
This makes sense as the salmon don’t care whether BMPs are being implemented—Salmon need cold, clean water—compliance with WQS.
Because the Waiver lacked timelines and quantifiable milestones for meeting WQS, there was not the required “High Likelihood” that the program would succeed, and the Court found it to be illegal.

9. Application of Monterey to Scott and Shasta Waivers
The NPS Plan Requires Waivers to Include Specific Timelines and Milestones to Meet WQS in the Rivers.
Timelines and Milestones must be to meet WQS, not to implement BMPs
Regional Board Staff list five milestones within the life of the Waivers: 1) Four meetings to discuss coordination of efforts on the Scott; 2) RCD assistance to landowners to assess, design, and implement measures to reduce loads in the Scott; 3) One educational workshop in the Scott River Valley; 4) RCD identification of potential projects for grant funding; and 5) Review of Shasta monitoring to recommend future management measures.

10. The Scott and Shasta Waivers Do Not Include Specific Time Schedules and Quantifiable Milestones
Neither the waiver, nor the response explain how four meetings, a workshop, and identification of potential future actions constitute specific time schedule and corresponding quantifiable timeline to measure progress towards TMDL compliance, or what timeline to achieve compliance might be reasonable.
All these cited events relate to BMP Implementation, not WQS Compliance
There is no likelihood, let alone a high likelihood, that the Scott and Shasta Waivers will achieve WQS.

11. Scott and Shasta Waivers Basin Plan Failures Unaffected by Monterey
Express North Coast Basin Plan requirements not met in either Waiver
Clearest Example: Basin Plan requires for Shasta: “Within ten years of EPA approval of the TMDL (by January 26, 2017), the discharge of all tailwater return flow shall be in compliance with water quality standards, the TMDLs, and the NPS Policy.” Basin Plan at 4-91.
The Shasta Waiver fails to require compliance with any standards for tailwater flows.

12. Scott and Shasta Anti-Degradation Policy Failures Unaffected by Monterey
Karuk properly submitted comments alerting the RWQCB and SWRCB to failure to comply with Anti-deg requirements

13. Monterey Coastkeeper Represents an Opportunity for the North Coast Regional Board
Inclusion of specific timelines and quantifiable milestones towards meeting water quality standards in the Waivers will mean real (and not paper) progress towards restoring critically endangered salmon
Ensuring that those timelines and milestones are based on the WQS and TMDL requirements incorporated into the Basin Plan will make them water quality based and effective.
Transparent and objective performance standards are consistent with good governance.
The salmon, and our children, deserve nothing less.