From: Ray Kinney

Sent: Thu Mar 17 15:05:35 2011

To: ToxicsRuleMaking

Cc: kennyr@casco.net

Subject: Toxics rules comments

Importance: Normal

Tickling Elephants: mid coast Oregon toxic NPS pollutant reduction

Can we develop an advanced form of TMDL on the Mid Coast of Oregon that not only incorporates Forest Practices Act BMP improvements, but, that also starts effectively dealing with the other elephant in the room… the blatant toxics parameter issues that are degrading water quality and are another limiting factor for salmon recovery?

The state has a lot of pressure currently to seriously look at toxics as a fish issue, especially on the low-calcium mid coast high risk watersheds for metals that we continue to allow to be added to these sensitive coho habitats. The Oregon Fish Consumption Rate change, Persistent Priority Pollutants list, the Toxics Reduction Strategy, the NEA suit, the EPA disapproval of most of Oregon’s human health standards, and resultant lower criteria all point out the need for an evolved TMDL process that lines out how we will deal with NPS toxic pollution reduction. We have a distinct opportunity to guide the whole nation toward improving water quality reality and aquatic health. Our great grandchildren are watching.

If we are not able to deal adequately with these two elephants, they will soon trash the whole room. Law suits should not have to be the only way to make great progress. I’ve devoted many years to collaborative dialogue, consensus building, and conservation planning. These methods are good, but they appear to be falling dangerously short of effectiveness because of the shortcomings of the current TMDL paradigm.

Somehow, NPS toxic pollutant mitigation needs to be enabled by our process, or we are going to be too late for recovery. Tier 1 Antidegradation provisions could be the enabling tool. If toxics reduction is ever going to be more than ‘lip service’, we need to press these key issues, with the TMDL development or another timely and rapidly effective additional process. Any additional process will likely take too long, causing the mid coast watersheds to remain more a part of the problem than a good part of the solution to salmon and aquatic health recovery.

Sediment and temperature can’t do it alone if blatant NPS toxic metals yearly inputs continue and remain ignored, and sanctioned by the state. We don’t need to wait for copious amounts of ‘new data’ just because ‘TMDLS are only based on existing data’. A huge body of scientific literature by hundreds of researchers, support the development need of TMDL/toxic reduction intent already. Low-calcium, hardness-dependent toxicology is well established as a major environmental risk factor by a large number of researchers. The elephants are getting restless. How are we going to deal with them? Are we going to do it with local resource management experience, common sense, and intelligence, or with obstructive political stonewalling and continued aquatic health decline? Is it fiscally irresponsible to fund many millions in restoration effort on the mid coast yet stick our heads in the sand to avoid seeing the elephant of toxic degradation limiting recovery? Continuing to throw many tons of lead sinkers, boat anchors, and degrading lead-based railroad bridge coatings into our salmon streams to dissolve on fish gill and gut is crazy. Degrading toxic bridge paints are a well understood acute pollutant source for waters all over the nation. We should not be stalled by necessarily having to do endless gathering of additional ‘new data’, because ‘existing data does not exist’ on these seven bridges as pollutant sources. These bridges have now been acquired by the public sector (Port of Coos Bay) and should be subject to our oversight for timely toxics reduction. Can we afford another mistake on a par with stream clearance of wood? Can we wait for decades longer, while the salmon, lamprey, and river mussels, etc. continue to decline? The science is overwhelming, funding for pointedly investigative monitoring of suspected toxics problems is politically frowned on. Many millions are spent on habitat restoration. For the cost of only a culvert replacement or two a significant problem quantification study could be adequately done to clarify just what the national infrastructure already knows, that this pollutant source, in a low-calcium salmon watershed is a toxics parameter problem. Every such bridge in the national infrastructure does not have to wait for many years for quantification studies to be done, because they are deemed to be a given problem. Simple, low cost analysis of a sample of the huge quantity of paint flakes falling into the freshwater salmon habitat should be adequate to establish needed action. If there is any delay in mitigation it should be only due to funding prioritization (the real cost/benefits of which need careful attention) and not due to the scapegoat of ‘lack of existing data’. We desperately need funds allocation for emergency water quality ecotoxicologic assessment of suspected high risk pollutant sources as a tool, but it should not be necessary to spend this essential money extravagantly on one problem site as a stall to prevent timely mitigation. It is fiscally irresponsible not to look at such problem pollutant sites, given the extremely high costs of loss of ecosystem services involved in aquatic degradation, but science together with careful common sense must rule our prioritization over ‘head in the sand politics as usual’.

If, toxics reduction as a goal is real, let’s start right here and, right now, in mid coast watersheds. We need dialogue, hard work, and resolve to clean up this mess. Didn’t our mothers teach us that if we make big dangerous messes we need to clean them up? If we don’t do it, who will? Don’t we have imperative parental responsibility to teach our children well and hand down better natural resource sustainability?

If we have five pounds of lead to get rid of, we’d be violating federal and state laws if we just threw it over the back fence and it rolled into the creek. The EPA was called and asked about this situation. They said “you can’t do that, you are violating laws; the Clean Water Act antidegradation provisions, and the Endangered Species Act laws”.

NOAA Fisheries said that: we’d be “risking prosecution for an ESA ‘taking’ by violating pollution laws.” I called Oregon Dept. of Environmental Quality and the Dept. of Fish and Wildlife and I asked; if it would be good enough if I cut the lead up into small pieces and then threw them back into the creek. They said, “You could be heavily fined if that was done.”

“If I tie a string to each piece and then throw it back out, would it be OK?” “Of course not,” they replied.

“If I tie a hook to each string and throw it out into the stream, until it breaks, can I avoid all of those laws and fines?”

ODFW said; “Uh oh, I wouldn’t touch that with a ten foot pole!”

Lead, from fishing sinkers lost in low calcium waters becomes bioavailable in many western Oregon streams and is toxic to fish and other aquatic organisms. Alternative sinkers that are not toxic are available. Lead sinkers demonstrably violate the intent of antidegradation provisions of the Clean Water Act. Seven railroad bridges on the Siuslaw have badly degrading coatings that are contributing large amounts of toxic metal pollution to high priority salmon habitat. Salmon, lamprey, river mussels, and other supportive species are declining. The ecotoxicologic effects of NPS metals need to be included in Mid Coast low-calcium watersheds water quality assessment. They need to be included in a new TMDL process development. The low-calcium watersheds on the mid coast are higher risk from toxic metals.

OAR 1340-041-0007 (12) (Statewide Narrative Criteria) “The formation of appreciable bottom or sludge deposits or the formation of any organic or inorganic deposits deleterious to fish or other aquatic life or injurious to public health, recreation, or industry may not be allowed.”

OAR 340-041-0033 (1) (Toxic Substances) “Toxic substances may not be introduced above natural background levels in waters of the state in amounts, concentrations, or combinations that may be harmful, may chemically change to harmful forms in the environment, or may accumulate in sediments or bioaccumulate in aquatic life or wildlife to levels that adversely affect public health, safety, or welfare or aquatic life, wildlife, or other designated beneficial uses.”

The intent of these OAR’s is clear. In late ’08 the Environmental Quality Commission directed the DEQ to move on toxics parameter issues. A new TMDL paradigm is necessary. Any new aquatic life standards need to address toxic pollutant protections.

Blatant, anthropogenic sources of such pollution should not continue to be allowed, or condoned, by the state. Pointedly investigative effort needs to be made to clarify the extent of the pollutant effects and prudent measures for mitigation need to be taken. If we keep our ‘heads in the sand’ to avoid having to address these issues, if we continue to avoid collecting further data because it likely would confirm the magnitude of the problems, if we continue to misinterpret ‘existing data’ to avoid potential 303d listings, we will fall short for salmon and aquatic health recovery. We will remain more of a part of the problem than a part of the solution. Our great grandchildren are watching.

The new fish consumption rate needs to drive the derivation of the criteria, and the human health criteria need to be based solidly on this new rate.

The variance provisions should only be applicable to the critera currently affected.

And, for hardness-dependent metal assessment, all data gathering should include water hardness as CaCO3 mg/l, ANC, DOC and DON (especially in any waters of hardness that dips below 30 mg/l as CaCO3). These metal assessments should also be timed to gather data during buffering challenge events.

This is an opinion paper toward promoting dialogue about prioritization of effort toward aquatic health. A much more in depth presentation of these issues is available by contacting:

Ray Kinney

541 964 3981

kennyr@casco.net

water quality advocate

Siuslaw watershed