This letter was sent July 16, 2015 from the North Coast Regional Water Quality Control Board to the Coyote Valley Band of Pomo in response to a letter sent by Coyote Valley on May 26, 2015. The full text of the letter is posted below, and a signed PDF of the letter is available for download.
North Coast Regional Water Quality Control Board
July 16, 2015
Coyote Valley Band of Pomo Indians
Attn: Michael Hunter
P.O. Box 39
Redwood Valley, CA 95470
Dear Mr. Hunter:
Subject: May 26, 2015, Letter to Regional Water Board regarding the Caltrans Willits Bypass Project
Files: Highway 101 – Willits Bypass Project
WDID No. 1B10019WNME
ECM PIN No.: CW-750104
Thank you for taking the time to send the North Coast Regional Water Quality Control Board (Regional Water Board) your letter dated May 26, 2015. We apologize for the late response, as it appears the letter was delayed in transit. The letter’s envelope included a stamp date of June 5, but did not get processed in San Francisco until June 18, and did not arrive at our office until June 22. The letter expresses concern with the California Department of Transportation’s (Caltrans) treatment of cultural resources on the Willits Bypass Project and the lack of cultural resource protection in the Willits Bypass State Mitigation and Monitoring Plan (MMP). The letter also expresses significant concern with Caltrans’s plan to use herbicide to control Himalayan blackberry on the Willits Bypass Project mitigation lands.
Cultural Resources and MMP
We understand that the Coyote Valley Band of Pomo Indians have found that their archaeological sites have either been damaged or are threatened by Willits Bypass activities and that you are seeking an amendment to the MMP to incorporate protection of these resources. Your letter requests that the MMP be temporarily suspended and subject to public hearings and tribal consultations to address damage to archaeological sites.
Caltrans’s Final Environmental Impact Report (EIR) for the Willits Bypass Project includes mitigation measures for “Unanticipated archaeological discoveries,” “Unanticipated discovery of human remains,” and “Establishment of Environmentally Sensitive Area Action Plan” to address archaeological resources. These mitigation measures are required for all aspects of the project, including the MMP. However, the enforceable mitigation measures for the Regional Water Board are those that relate to water quality and do not include these archaeological mitigation measures. We support the implementation of established archeological resource mitigation measures, but the Regional Water Board does not have authority to require protection of archaeological sites encountered on the mitigation lands. We encourage you to work with Caltrans, The Federal Highway Administration, and/or agencies tasked with oversight of Section 106 of the National Historic Preservation Act, as appropriate, to address these concerns.
Herbicide and Himalayan Blackberry
Although Caltrans has not yet formally submitted a request to use herbicide on The Willits Bypass Project Mitigation lands, the Regional Water Board does expect a request to be submitted in July 2015. Use of herbicide is somewhat routine on habitat restoration projects such as this one, where Himalayan blackberry or other particularly tenacious invasive species require chemical control for effective removal in order to properly establish native plant communities.
Your letter conveyed concern with possible impacts of herbicide on those who gather organic materials for use in food, medicine, and basket weaving. It is Caltrans’s responsibility to manage mitigation land establishment and maintenance activities until success criteria have been met and the lands are transferred to the Mendocino County Resource Conservation District (MCRCD) for long-term stewardship. This is currently projected to take 5-10 years until the MCRCD takes over the long-term stewardship. Our understanding is that Caltrans does not intend to allow public or tribal access to the mitigation lands for resource gathering, recreation, or any other non-mitigation-related activity while the mitigation is being established. However, should Caltrans be permitted to use herbicide and should they provide access to the Coyote Valley Band of Pomo for resource gathering (in a manner that would not impact mitigation), Caltrans would need to communicate herbicide use locations and timing so that activities may be conducted in a way that would not be impacted by herbicide use.
Eradication of invasive plant species and establishment of native plant communities is a key objective of the MMP. Himalayan blackberry grows aggressively, forms monotypic colonies, and precludes establishment of virtually all herb, shrub, and tree species, thereby contributing to a reduction in niches and biodiversity. Himalayan blackberry is considered by the California Invasive Plant Council to be rated “high” in terms of its potential impacts to physical processes, plant and animal communities, and vegetation structure. While Himalayan blackberry will likely always have a presence in Little Lake Valley, its removal on mitigation lands, coupled with native herb, shrub, and tree establishment will improve the riparian ecosystem for the long-term and prevent Himalayan blackberry from returning to its current extent.
The Clean Water Act section 401 water quality certification issued to Caltrans by our agency for the Willits Bypass Project includes a condition that any use of herbicide shall be subject to prior review and acceptance by the Executive Officer. After Caltrans approached the Regional Water Board about the potential use of herbicide to treat approximately 58 acres of Himalayan blackberry scattered in riparian restoration areas, we directed Caltrans that any proposed use must be in compliance with a State Water Resources Control Board Statewide Aquatic Pesticide Weed Control General Permit  that address the use of chemicals to control weeds in waters of the United States. This General Permit restricts the suite of herbicides to formulations pre-authorized for application to open water, requires implementation of pollution prevention best management practices, and requires monitoring to confirm that herbicide use is not impacting receiving waters. The Regional Water Board will review Caltrans’s application for General Permit coverage and compliance to ensure that the herbicide use plan includes measures for erosion control after Himalayan blackberry removal, protocol to restrict herbicide application prior to forecast rain events, and consideration of alternative control methods. We will also review the soil and water fate and transport properties of the specific chemicals proposed. Additionally, we anticipate the application will include a proposal to first manually remove the aboveground biomass and then wait until new shoots surface before applying herbicide. This would require significantly less herbicide than a full foliar application (e.g., “broadcast” spraying).
Caltrans had indicated that they are not considering physical removal of the Himalayan blackberry rootstock due to the potential to disturb cultural resources during grubbing. Additionally, it is our understanding that the physical removal of rootstock is generally not as effective as targeted chemical control because rootstock fragments are inevitably left behind and re-sprout to form new plants. Should Caltrans be restricted to only manual and/or mechanical removal methods, the removal process would take significantly more time due to the resilient Himalayan blackberry rootstock. Several years of follow-up would be required after initial removal to ensure that Himalayan blackberry was removed to a degree that would not interfere with the mitigation plantings. According to Caltrans and its current mitigation contractor, prohibiting herbicide use would mean that riparian mitigation activities would be devoted exclusively to Himalayan blackberry removal during the five-year contract term and thus significantly delay native planting and maintenance of planted native vegetation.
MMP and Public Participation
MMPs are typically submitted as part of the 401 Water Quality Certification application, reviewed by the Regional Water Board, and comments are later sent back to the applicant for MMP revision and resubmittal. A summary of projects applying for 401 certification are posted for Public Notice shortly after applications are received, and interested public parties are invited to submit comments on the application. Public comments are then reviewed by Regional Water Board staff and considered during drafting of the 401 certification. The Willits Bypass Project application included a February 2010 draft MMP that was made available for public review and comment. The February 2010 draft MMP noted the possibility that herbicides would be considered (page 7-27), and while the Regional Water Board did receive comments on the MMP, we did not receive any public comments related to the possible use of herbicide. However, an additional opportunity to comment within a 30 day period will be available after Caltrans submits its herbicide use application to the State Water Resources Control Board for coverage under the Statewide Aquatic Pesticide Weed Control General Permit.
Your letter expresses concern that the MMP was written “behind closed doors.” The Regional Water Board did keep interested parties (i.e., Save Our Little Lake Valley) informed of the MMP development process by providing updates and an underline/strikeout draft of the MMP for their review. We did not receive comments in response to these MMP updates.
Your letter says that “Caltrans claims herbicide use is necessary to meet an expedited schedule.” Note that Caltrans current mitigation implementation schedule (MMP Table 7-1) has not been expedited, rather, the current mitigation schedule reflects a delay in implementation, for which Caltrans is already committed to provide additional mitigation. Further delays would most likely result in a Regional Water Board requirement for additional mitigation.
As mentioned above, Caltrans has not yet formally submitted a request to use herbicide, but the Regional Water Board expects this request and associated application for the Statewide General Permit soon. At that time, Regional Water Board staff will review the application consistent with the factors outlined above. Should the Regional Water Board deny a proposal to use herbicide for Himalayan blackberry on the mitigation lands that is protective of water quality, then mitigation implementation would unnecessarily be further delayed and additional mitigation would likely be required from Caltrans to compensate for that delay. Should the Regional Water Board approve the use of herbicides, the approval would only apply to removal of Himalayan blackberry during this current five-year mitigation contract.
If you have any questions, please contact Stephen Bargsten of my staff, at Stephen.Bargsten@waterboards.ca.gov or (707) 576-2653. Thank you.
Matthias St. John
cc: Jane Hicks, U.S. Army Corps Jane.M.Hicks@usace.army.mil
Holly Costa, U.S. Army Corps Holly.N.Costa@usace.army.mil
Sahrye Cohen, U.S. Army Corps Sahrye.E.Cohen@usace.army.mil
Melissa Scianni, U.S. EPA Scianni.Melissa@epa.gov
Jennifer Siu, U.S. EPA Siu.Jennifer@epa.gov
JoAnn Dunn, Ca. Dept. of Fish and Wildlife JoAnn.Dunn@wildlife.ca.gov
Gordon Leppig, Ca. Dept. of Fish and Wildlife Gordon.Leppig@wildlife.ca.gov
Curt Babcock, Ca. Dept. of Fish and Wildlife Curt.Babcock@wildlife.ca.gov
David Melendrez, Ca. Dept. of Transportation David.Melendrez@dot.ca.gov
Mike Bartlett, Ca. Dept. of Transportation Mike.Bartlett@waterboards.ca.gov
Carolyn Brown, Ca. Dept. of Transportation Carolyn.Brown@dot.ca.gov
Chris Collison, Ca. Dept. of Transportation Chris.Collison@dot.ca.gov
John Webb, Ca. Dept. of Transportation John.Webb@dot.ca.gov
Mendocino County Board of Supervisors firstname.lastname@example.org
Priscilla Hunter, Coyote Valley Band of Pomo email@example.com
Madge Strong, Willits City Council MStrong@willitsonline.com
Ellen Drell, Willits Environmental Center firstname.lastname@example.org
 WATER QUALITY ORDER NO. 2013-0002-DWQ,GENERAL PERMIT NO. CAG990005, STATEWIDE GENERAL NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT FOR RESIDUAL AQUATIC PESTICIDE DISCHARGES TO WATERS OF THE UNITED STATES FROM ALGAE AND AQUATIC WEED CONTROL APPLICATIONS, http://www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/2013/wqo2013_0002dwq.pdf