THE CLEAN WATER ACT AND WATER QUALITY STANDARDS AT CARNEGIE

THE ENVIRONMENTAL EXTREMISTS

As bad as it is for off-highway vehicle riders in California, Carnegie SVRA has its own unique problems. Even though we settled the lawsuit against Carnegie because the water department has jurisdiction over water issues, we are still under pressure to kowtow to environmental extremists in the regulatory agencies. The California Water Department is treating our park as if it were a threat to clean water in the Delta and it is forcing changes that are detrimental to our sport.

One of their central allegations in the lawsuit was that Carnegie off-highway vehicular recreation was causing excessive sedimentation and heavy metal accumulation in Corral Hollow Creek and that these contaminants find their way into the Sacramento – San Joaquin Delta. Set aside for the moment that there are numerous sources of contamination unrelated to off-highway vehicle recreation (see Big Yellow Taxi), the so-called creek is dry most of the time  and even in years where it does trickle through our park for a week or two, it evaporates and sinks into the flood plain. It does not connect with any other bodies of water.

Nevertheless, our creek is defined as a navigable body of water which subjects it to the dictates of the National Pollutant Discharge Elimination System as authorized by the Clean Water Act.

Water pollution degrades surface waters making them unsafe for drinking, fishing, swimming, and other activities. As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States.

“Signed into law by Richard Nixon in 1972, the Clean Water Act made it illegal to discharge pollutants into “navigable waters” without a permit. In subsequent years, federal regulators interpreted that prohibition to apply to small streams, low-lying wetlands and even dry creek beds which clearly do not meet the definition of “navigable.” The cases before the Supreme Court are challenging the extension of the Act’s authority to these areas, which are often many miles from actual open waterways.”

“The Government’s use of attenuated links between parcels of land and distant waterways to regulate such land as ‘wetlands’ violates the Constitution” said Bader, citing the Supreme Court’s 2000 decision limiting federal powers in United States v. Morrison, a case which he helped litigate.” http://www.uswaternews.com/archives/arcrights/6suprcour3.html

In 2006 the question of what is meant by “waters of the United States” was brought before the Supreme Court. In Rapanos v. United States, the plurality opinion stated that the Clean Water Act confers federal jurisdiction over non-navigable waters only if they exhibit a relatively permanent flow, such as a river, lake, or stream. In addition, a wetland is jurisdictional if there exists a continuous surface water connection between it and a relatively permanent waterbody, such that it is difficult to determine where the waterbody ends and the wetland begins.

“In the Water Quality Act of 1987 (1987 WQA) Congress responded to the stormwater problem by requiring that industrial stormwater dischargers and municipal separate storm sewer systems (often called “MS4″) obtain NPDES permits, by specific deadlines. .” http://en.wikipedia.org/wiki/Clean_Water_Act

“Nonpoint source pollution—that is, pollution from contaminants picked up
and carried into surface water by water running over land—is known to be
one of the leading causes of water quality problems in the United States.
Water that runs over developed areas, including paved surfaces such as
roads and parking lots, before reaching a water body is known as urban
runoff and is an increasingly important category of water pollution. As
urban areas have expanded over the past several decades, the amount of
urban runoff has also increased.”

Taken from the GAO report on water quality done in 2001 assessing the need for managing storm water runoff. See: http://www.gao.gov/new.items/d01679.pdf

In California the NPDES permit program is administered by the regional water boards. California has broad statutory authority to regulate (or not regulate) any and all forms of waste discharge to waters, including non point sources.

My understanding is that because Corral Hollow Creek was subject to an extreme flood over a hundred years ago when some water did escape into the Sacramento-San Joaquin River Delta, it is a navigable waterway subject to the clean water act and the National Pollutant Discharge Elimination System. That very faint nexus is what is allowing a California water agency to interfere with the way our park is being run by requiring. Carnegie to obtain a MS4 permit.

Although non point source pollution is mostly associated with urban pollution, Carnegie is being required to get a small MS4 permit. It is hard to understand the water department’s logic because Carnegie is a park and is not associated with urban pollution given its location in the coast range far from urban development.

An MS4 is defined by the EPA as a “conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains): (i) owned or operated by a state, city, town, borough, or county.” The MS4 permits require the discharger to develop and implement a Storm Water Management Plan (SWMP) with the goal of reducing the discharge of pollutants to the maximum extent practicable (MEP).

According to the California Resources Control Board, Small MS4s include systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highways and other thoroughfares, but do not include separate storm sewers in very discrete areas, such as individual buildings. (40 CFR §122.26(b)(16(iii).) This permit refers to MS4s that operate throughout a community as “traditional MS4s” and MS4s that are similar to traditional MS4s but operate at a separate campus or facility as “non-traditional MS4s.” http://www.swrcb.ca.gov/water_issues/programs/stormwater/docs/phsii2012/factsheet.pdf

My first question is why is Carnegie being required to obtain a MS4 permit when it meets none of the definitions for facilities owned by the state subject to the permit. The closest reference to anything being done at Carnegie which would cause it to be subject to a MS4 permit is roads. Roads are described by the EPA as impervious surfaces that can quickly convey polluted runoff during wet weather events to nearby waterways. This hardly describes the trails running through Carnegie.

Unlike the sanitary sewer system that transports wastewater to a treatment facility prior to discharge, the MS4 transports runoff directly to a local waterway, usually without treatment.

The local waterway in this instance is an intermittent creek that does not connect with any larger bodies of water except under extremely rare and extraordinary circumstances. How does anything that the state does here at Carnegie to implement the Storm Water Management Plan (which is required to get an MS4 permit) going to have any effect on water quality in the Sacramento-San Joaquin River Delta?

We are in the grasp of a California administrative agency; in particular the Central Valley Water Regional Board which required Carnegie to obtain a Non-traditional small MS4 permit for storm water management. A Storm Management Plan (SWMP) was created to obtain the MS4 permit. Then a Clean Up and Abatement Order was issued based on Carnegie adopting a revised SWMP (the legislature was devising new regulations). The primary method the water board uses to control stormwater discharges is the use of best management practices (BMPs).

Below are excerpts from Carnegie’s Storm Management Plant:

“The findings from the watershed assessment were used to develop a number of recommendations designed to reduce erosion and sediment issues through innovative best management practices (BMPs) and an active adaptive management framework focused on meeting water quality objectives. This framework includes continual assessment of erosion and sediment generators, implementation of appropriate BMPs, on-going monitoring and evaluation of these actions and plans for long-term maintenance to ensure the success of these actions.

Other components of the OHMVRD storm water management program include the ongoing development and implementation of the Trails Management Plan, the implementation, monitoring and maintenance of projects associated with the OHMVRD Soil Conservation Standard and Guidelines, implementation of annual species surveys and habitat restoration activities related to the Habitat Monitoring System program and use of the OHV-specific BMP manual for selecting, implementing and maintaining appropriate BMPs. ”  http://ohv.parks.ca.gov/pages/25010/files/Carnegie-svra_swmp.pdf

As you can see from this excerpt, the staff at Carnegie has adopted a storm management plan without regard to the needs of its riders or the origin of problems related to water quality. The premise is that off-road vehicular traffic at Carnegie is responsible for diminished water quality, ignoring all  other potential sources. They are at the mercy of the water board.

For example, the California Department of Parks and Recreation allowed Hetch Hetchy to dump tailing from the bore it drilled though the Coast Range into Mitchell Canyon. According to the Storm Management Plan: “A large volume of the blue-grey shaft tailings remain on site and continue to deposit material to Corral Hollow Creek, which then enters the SVRA and has continued to accumulate within the park.” We don’t know what these tailings are composed of but it is certain that they contribute to increased turbidity during storm events. Why isn’t that a concern?

There is also a Superfund site across the street from Carnegie, called Site 300 at the Lawrence Livermore National Laboratory which is still being monitored. There is a shooting range in site 300 above the creek. A paved road that carries commute traffic curves along the side of Corral Hollow Creek. SRI International conducts an explosive testing facility which borders our riding facility. Over  grazing and residential areas in the hills above the creek represent additional threats to water quality.

Also, there are countless old abandoned coal mines in the  hills above the creek as well as left over shag from kilns that baked ceramics and bricks from the days of Carnegie Brick and Pottery Works. Abandoned mines and shag piles discharge harmful chemicals such as sulfur dioxide, mercury, arsenic, lead and other heavy metals into the environment that harm fish and habitat. Water running through these abandoned mines have been flushing these toxins into the creek for decades.

The infrastructure, including railroads and whole towns were destroyed in floods and earthquakes and were never cleaned up to current standards. Most recently there was a gravel pit in the canyon and before that they mined for coal, sand, clay and magnesium in the days before Carnegie became a park.  These are just a few of the many industrial sources of contamination that the park admits that it has little or no control over.

The other point I’d like to make is that Carnegie is not a small municipally with impervious surfaces and its own storm sewers. It is a park just like any of the other 279 state parks in California. Why is Carnegie being singled out and treated differently from other state parks which are not characterized as small municipalities and are not required to get MS4 permits? Is it really based on science? Or is there just a little prejudice against off-road riders in these shenanigans?

The SWMP for Carnegie designed by outside consultants to placate the water board’s criteria is full of misconceptions about the impact of off-road recreation on the environment. They have fixated on the trails as being a major source of contamination ignoring more logical explanations for water quality, some of which they have little or no control over.

They are monitoring water coming in and out of Carnegie and water coming out of the hills at various locations. No attempt is made to keep track of days when there is no water flowing through the park (most of the time). They claim that it will tell them the true source of diminished water quality but meanwhile they are acting like it is the riders that have to be regulated.

The environmental consulting firms involved in devising the SWMP are composed of technicians whose expertise is mostly designing restoration projects for government entities, while they also they claim doing some work designing roads for construction sites. They think they know enough about off highway recreation to apply their skills to our park. The roads they design for restoration projects are not appropriate for trails in an OHV park. They are not riders and do not understand our sport.

Their idea of best management practices and soil conservation standards includes cutting artificial roads into the hillsides in a manner that creates more erosion than if they just let us ride traditional single tracks baked into the hillsides. Their idea of maintenance includes blading the trials down to get rid of everything above the bottom of the ruts and create water bars positioned to let the water flow down underneath the trial thus undermining the very soil that they say they are protecting. They are not the appropriate consultants for devising the SWMP because they do not have any expertize designing and maintaining trials in an off highway vehicle park.

The environmental consulting firms ignore the real threats to our creek. As mentioned above there are many potential hazards unrelated to off highway recreation, including a Super Fund Site across the street. They should be looking at the water flowing into Carnegie from the Super Fund Site. They do not recognize these other sources of pollution maybe because they have no control over them and concentrate on regulating where and how we can ride our bikes.

Also, ignored is the fact that the creek does not flow into any larger bodies of water. In the rare occasions where it does trickle through the park for a few days, it is absorbed into the flood plain and evaporates. The water board treats our little dry creek as it it were connected to the San Joaquin River.

Their plan to place paving stones along the surface of fire roads is an environmental catastrophe since impervious surfaces are the number one threat to the environment causing heightened erosion.

Their wet weather closure policy is also totally unrelated to preserving soils during storm events. In 2011 to 2012 there was not enough rain all year to saturate the soil. After a little rain the hills were closed and not opened until conditions were super dusty. Terrain at Carnegie ranges from clay to sandstone to metamorphic rock; each area with different absorption rates and different shear factors.

In the past, before the new standards were imposed, the park was closed on the west side before it was closed on the east side because of differences in the composition of the soils. In 2011 and 2012 when the new standards were imposed uniformly throughout the park, riders were kept from riding when traction was at its best; the wonderful kind of traction that Carnegie is renowned for in the winter months. I understand that the timing of the closures and\or how long they are going to be in effect is still under discussion.

The new water department approved trails are more disruptive of the environment than the old trials that follow the contours of the hills; most of which are baked in and have existed for decades. They are visibly free from erosion. Old time Carnegie riders prefer the more permanent single tracks going up and down the hills over trails scrapped out of the sides of the hills.

Some of the  trials cut into the hillsides are fire roads that may once have been paved and used to transport coal and other products. They have been in existence for years and are a necessary part of Carnegie’s ongoing history. Some argue that these ancient roads represent constructive easements that cannot be abolished.

The new prepped trails are not steep and have many blind corners, which makes them dangerous because they encourage riders to go too fast for conditions. In addition, the new trails need constant maintenance, which means scraping down the parts that are not eroded to fill in the eroded portions. The big earth moving equipment that are required to do this work just adds to overall erosion.

The trails that they cut into the hills are not challenging for long time Carnegie riders. We are not all beginners or casual off-road riders. Our sport requires a lot of dedication in both time and resources. There are few off-road riders who shy away from a challenge. Most of he rangers do not ride. They feel that they are being pressured by the water board and cannot afford to acknowledge this fact.

When they are finished fencing off all of the unauthorized single track tails (some of which were there for decades without eroding), the steep gnarly trails; most experienced riders will stop riding at Carnegie. If you believe in global warming, then you will believe that this will have adverse effects on the climate because they will have to travel much further to find the extreme terrain that they once rode at Carnegie. Most riders only use a gallon or so in their bikes and so the increased fuel used to haul their off-road vehicles could really make a difference.

I grew up racing and participating in observed trials competition. I am now in my sixties and just ride for fun, but I still prefer a challenging ride at a fast pace; an activity that is getting harder and harder to find at Carnegie. It is dangerous to go fast on the approved finely groomed two-way trails because of all the blind corners and because everybody is restricted to these “approved trails” unlike before where riders were more dispersed.

The gnarly, steep trails that were once used for cross-country racing are no longer available at Carnegie. The latest cross-country race in 2011 was on groomed trails and was just an outright speed contest according to competitors who raced the event. This turn of events makes racing much less a test of skill and coordination and more a test of pure speed. In addition, the sustained high speeds add to the danger of getting hurt should anything go wrong.

Observed trials competitions have not been held at Carnegie for years because under the new rules they are illegal. The only place where we can ride our trials bikes now is in a small segregated area near the motocross track that has a few stadium type sections. They are rarely used by trials riders who prefer creating their own sections and their own gnarly loop. California regulations are destroying the sport of observed trials which is a shame because trials competition exposes riders to obstacles that  teach essential  off-road skills at lower speeds than other forms of off-road racing.

I remember when I first came to Carnegie when it was a private park in the nineteen-seventies and eighties, I watched riders going up and down the hills in the front to the park and never imagined that I would be able to join them. Later as my technique improved I learned to ride those very same the hills. It was more fun than any non-rider could possibly imagine. Some of them stopped to admire the skill of riders playing in the hills and others registered their disapproval perhaps because it looked so scary.

Then as a result of the disapproval voiced to the parks department from some non-riders, our hill climbs got shut down in the mid-nineteen nineties. Most of those trails going up and down the hills were baked hard and not susceptible to erosion. Although hill-climbing competitions are still being promoted at Carnegie, the unofficial hill-climbs that riders once rode all over the park are now being fenced off and rehabilitated. Instead of managing these trails for riders, the staff is just making this activity illegal. They claim that they are being forced to close the trails by the terms of the stipulated judgment which puts them at the mercy of the water board.

It is also important to note that some of the best professional hill-climbers and off-road champions learned to ride at Carnegie. These athletes have ridden at Carnegie since they were on mini bikes and are inspiration to up and coming riders.

Pete Krunich, Jr. won the the overall Great American Hill-Climb Championship series several years in a row. He won the infamous Great American  Hill Climb in Billings Montana and the Widownmaker in Croydon Utah on numerous occasions, winning the big cash prizes and standing on the top of the podium. He also has a stack of gold watches to memorize his wins. He grew up riding in the hills at Carnegie with his dad, Pete Krunich senior, who is a champion in his own right.

Another champion who grew up riding at Carnegie is Kacy Martinez, sponsored by RPM/ KTM Racing Team since 2009. In 2007 she raced the GNCC series where she placed 2nd  in the women’s class.  In 2009 was awarded the AMA Racing Female Rider of the Year Award. She won the Western National Hare Scramble series Championship in the Professional Women’s class from 2009 through 2011 and the WORCS Women Pro Champion in 2010 and 2011. In 2011 she was an X Games Bronze Medalist.

Currently she is a top female competitor in the WORCS series and in the Geico EnduroCross Series, racing over extreme trials type obstacles. She also competes successfully against the men in local hill-climbs and got a top ten finish in professional women’s motocross at Prairie City last year.

These athletes and athletes like them would never have been able to rise to such heights had they not been able to ride challenging terrain that requires learning skills necessary to excel at our sport.

We need to fight for our right to ride and not give in to the false environmentalism of our enemies. Otherwise where will the next generation of athletes come from? Will they all come from very wealthy families forced to ride on private property because public riding areas no longer gives them access to the type of terrain that leads to expert riding skills; expertise that is needed for the next generation of racers and athletes.

Most non riders and have a distorted view of the environmental hazards of off-road recreation.  We are equated with the evils of strip mining and other industrial operations. People who don’t ride find it hard to acknowledge the athleticism, balance and coordination required to excel at our sport (not to mention the strength and endurance). The steep trails that we like to ride offend their esthetic sensibilities.

Having grown up in places where roads were not paved, I have different perception of threats to our environment. I was an environmentalist before it became hip to think about our effect on the environment as human beings. See: A Call To Action in Dirt Rider Magazine: http://www.dirtrider.com/features/online-exclusives/141_1009_carnegie_ohv_state_park_freedom_day/

Sometimes it seems like we are fighting a loosing battle because we are all alone in our struggle to just be allowed to ride. If it’s not the regional water board interfering with our right to ride, it is groups like PEER and CSPA filing suit against our park and putting park officials on the defensive.

The Division of OHV Recreation say that they are just abiding by the rules and regulations, but sometime is feels like they are  giving in to our enemies. If there are any questions about the environmental impact of any of our trails, they just close down the offending areas for rehabilitation instead of managing them to permit riding while at the same time addressing environmental concerns.

The consulting firms hired to devise the storm water management plan ignores our needs in every aspect of their plan. You would think that they were designing a plan for an amusement park, not an off-road riding area. Amusement park rides require no skill or physical fitness. Perhaps they think that we just sit down and turn the throttle. This is a misunderstanding that permeates the non-riding public.

Off road riding is not illegal (to my knowledge) and is an internationally recognized sport. Fellow riders have banded together with KTM Motorcycles and are trying to raise money to help send a talented and dedicated young man (Travis Coy) to Germany to participate in the International Six Day  Enduro. Unlike athletes from other countries, he gets no support from his government.

How can they close all the extreme terrain that makes Carnegie so unique? They have no sympathy for advanced riders who need trails consummate with their abilities or riders who grew up riding at Carnegie and for whom riding those trails has become second nature.

How would the skiers feel if their black diamond runs were all closed down? How would the kayak paddlers feel if they could not run class five rapids? They think that our problems do not apply to them because they are not a menace to the environment like bikers and four wheelers. They couldn’t be more wrong but they won’t wake up until it is too late.

Unfortunately others have a holier than thou attitude little suspecting that they are will be on the chopping block once “the powers that be” are finished with us. This is especially true of mountain bikers, rock climbers and hikers who use unpaved surfaces which are susceptible to erosion just like our trails.

It is fashionable these days to blame off-road motorcyclists for environmental degradation, thereby, allowing our opponents to ignore the true challenge we face today as a result of an expanding urban population with an ever-increasing and detrimental effect on the environment.

I am not proud of my fellow sportsmen/women. Their failure to band together with the OHV community and fight for our rights will doom them to the same fate they think we deserve. Like the Indian tribes in early America we can be defeated if they take us on tribe by tribe.

Remember as the song says, “This is your land, this is our land…” Don’t let them take it away from us.

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2 Responses to THE CLEAN WATER ACT AND WATER QUALITY STANDARDS AT CARNEGIE

  1. See “Park Scandal a Ruse to Grab Gas Tax Funds from Off Roaders”
    Calwatchdog.com August 6, 2012

    Link:
    http://www.calwatchdog.com/2012/08/06/park-fund-scandal-a-ruse-to-grab-gas-tax-funds-from-off-roaders/

  2. Mark Justice says:

    I agree. These psuedo-enviromentalist need to look at how much work an d effort off road enthusiast put into maintaining there lands where they ride. Staying on the created trails is the best way to keep it real. Fight for our rights to ride hard.

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