Special Protections And Areas Of Special Biological Significance Casqa Powerpoint Presentation Alan Waltner November 2009

“ Special Protections” and the Pending Ocean Plan General Exception for Areas of Special Biological Significance (ASBS) – the Continuing Saga

Presented by Alan Waltner

Law Offices of Alan Waltner

CASQA 2009 November Meeting

Aerial Photographs Copyright (C) 2002-2009 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.Californiacoastline.org

Overview

Description of the ASBSs

The history of the ASBS controversy

Evolution of the discharge prohibition and the meaning of “waste”

The proposed exception policy and associated special conditions

Upcoming developments

Generally from the discharger’s perspective (Monterey, UC, ACCWP)

General theme – failure to consider costs and environmental impacts

What are the Areas of Special Biological Significance?

34 areas of the California coast

Originally designated in 1974-1975 before storm water discharges were broadly regulated

Cover approximately 1/3 of the California coastline

Now accorded “special protection” under Public Resources Code Section 36700(f)

Several key ASBSs are in urban areas and are subject to urban runoff

Hundreds of municipal and industrial storm drains still discharge to ASBSs statewide (over 1600)

All parties agree that they are important – the question is how best to regulate discharges

Pacific Grove ASBS

Copyright (C) 2002-2009 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.Californiacoastline.org

Julia Feiffer Burns ASBS

San Diego – Scripps ASBS

Timeline of the ASBS Controversy

1972 – Original Ocean Plan adopted –

implicit prohibition on point source discharges to ASBSs

“ practicability” standard for nonpoint sources

1974 and 1975 – 34 ASBSs designated

1983 – Ocean Plan revision prohibits nonpoint source “waste” discharges to ASBSs

1987 – Federal Water Quality Act amendments address storm water

2001 – CalTrans decision applies discharge prohibition to storm water

Timeline of the ASBS Controversy (con’t)

2003 – Discharge inventory completed

2004 – SB 512 passes – “Special conditions”

2004 – Exception requests demanded by State Board and Scripps exception issued

2006 – Enforcement threatened against others

2006 – Draft special protections released

2008 – Revised draft special protections released

2009 – Notice of preparation for programmatic EIR to be filed “soon”

Potential Approaches to ASBS Discharges

“One molecule” prohibition on anthropogenic sources

“Practicability” standard (MEP)

“Natural water quality” standard based on a “reference location”

Numeric limitations (Ocean Plan Table B)

“Enhanced” MEP

Approach has shifted and is confusing

Establishment of the ASBSs in the 1970s

ASBSs were established in the original Ocean Plan in 1972, but no ASBSs were designated

The State Board designated the current 34 ASBSs through a series of actions in 1974 and 1975

“ Waste shall be discharged a sufficient distance from areas designated as being of special biological significance to assure maintenance of natural water quality conditions in these areas.” (Implicit discharge prohibition)

Establishment of the ASBSs (continued)

These actions were taken in an era before storm water was being substantially regulated

Not accompanied by economic or environmental analyses

State Board Executive Director issued procedures elaborating that: “waste from nonpoint sources, including but not limited to storm water runoff, silt and urban runoff, will be controlled to the extent practicable.”

The 1983 Ocean Plan Revision

“ Waste shall not be discharged to areas designated as being of special biological significance”

“ Discharges shall be located a sufficient distance from such designated areas to assure maintenance of natural water quality conditions in these areas.”

What constitutes “waste” is undefined

No explicit reference to storm water

Following the 1987 federal WQA Amendments, the State Board began to re-interpret the discharge prohibition as applying to both point and non-point sources, including storm water

What is “Waste”? (Porter Cologne Act)

"Waste" includes sewage and any and all other waste substances, liquid, solid, gaseous, or radioactive, associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation, including waste placed within containers of whatever nature prior to, and for purposes of, disposal.

-- Water Code Section 13050(d)

The State Board’s 2001 CalTrans Decision

Cease and desist order addressed both stormwater and non-stormwater discharges from highway drainage systems

For the first time clearly stated the State Board’s view that the Ocean Plan prohibits storm water discharges to ASBSs

CalTrans’ statewide NPDES discharge permit does not authorize the discharges

Costs do not need to be considered

CalTrans is directed to pursue an exception

2003 Discharge Inventory Finds 1658 Direct Discharges to ASBSs:

31 wastewater discharge points

391 municipal or industrial storm drains

1012 small storm drains

224 other nonpoint sources

66 seeps or springs

637 intermittent gullies or perennial streams

473 discharges into ASBSs exceed 18 inches in diameter or width and 315 exceed 36 inches

SB 512 (2004)

“In a state water quality protection area, waste discharges shall be prohibited or limited by the imposition of special conditions in accordance with the Porter-Cologne Water Quality Control Act and implementing regulations . . . No other use is restricted.” – Public Resources Code Section 36710(f)

2 options (prohibition or special conditions) are coequal

No elaboration on meaning of special conditions, other than through reference to Porter-Cologne

Porter Cologne Act – Reasonableness, Beneficial Uses, Economic Considerations

13263 – discharge limitations must “take into consideration the beneficial uses to be protected, the water quality objectives reasonably required for that purpose, other waste discharges, and the provisions of Section 13241.”

13241 – water quality objectives must consider beneficial uses, existing water quality, water quality conditions that could reasonably be achieved, and economic considerations

Never has this required analysis been done for the ASBSs

2004 – State Board Letters

Sent to “higher threat” dischargers

Directed dischargers to cease discharging storm water or apply for an Ocean Plan exception

Another round of letters sent in August 2005

Deadline for applications and data submissions was May 31, 2006, then extended to December 31, 207

The Exception Applicants

California Department of Parks and Recreation

California Department of Transportation

Carmel City

Conolly-Pacific Company

Humboldt County

Humboldt State University

Irvine Company

Laguna Beach

Los Angeles County

Malibu City

Marin County

Monterey City

Newport Beach

Pacific Grove City

Pebble Beach Company

Pelican Point Homeowners

San Diego City

San Mateo County

Santa Catalina Island Company

Sea Ranch Association

Stanford University – Hopkins Lab

Trinidad

Trinidad Rancheria

UC Davis – Bodega Lab

USC – Wrigley Lab

US Department of Defense, Air Force

US Department of Defense, Navy (2 applications)

US Department of Interior, Point Reyes National Seashore

US Department of Interior, Redwoods National Park

Scripps exception issued in 2004 established precedent for the contents of the exceptions

The 2004 Scripps Exception Required:

Compliance with Ocean Plan effluent limits

Prevention of the introduction of exotic species

Elimination of dry weather flows

Control of wet weather flows to protect natural water quality

Extensive monitoring to assure that beneficial uses are protected

Establishment of an expert committee to determine if natural water quality is being altered

ASBS Scientific Panel

Panel of experts convened in 2006

Originally tasked to advise on Scripps discharge

Role expanded to a broader review of ASBS issues, including an evaluation of what constitutes “natural water quality”

A 2009 report of the panel recognizes that “truly natural water quality probably does not now exist . . . .”

The 2006 Draft “Special Protections” Proposal

Permissible discharges must not “cause a statistically significant increase in pollutant concentrations in the receiving water adjacent to the storm water runoff as compared to the reference stream.”

Permissible discharges must “be comparable to background levels.”

Appeared to adopt a “one molecule” approach

CASQA’s Comments

The goal of the ASBS program is unclear

The means vs. the ends of the program are unclear – is the prohibition a means or and end?

The definition of the prohibition, particularly the prohibition on “waste” discharge, is unclear

Procedures for setting water quality objectives need to be followed

The Environmentalist Response

ASBSs are seen as “ecogems”

“ The statewide general exception would authorize the discharge of the worst category of pollution – stormwater runoff – into the State’s most fragile ecosystems” – August 2006 NGO comments

Exception is a “de facto” amendment of a water quality objective

Called for an environmental impact report rather than a negative declaration to support the State Board’s action

The Discharger Response – Costs and Feasibility

Los Angeles County estimated that compliance with the discharge prohibition would cost over $1 billion

Property acquisition for needed facilities would be costly in many areas and could take years – condemnation would likely be needed

California Coastal Commission permits would be required for many facilities

The Discharger Response – Legal Issues

Like the environmental organizations, dischargers also demanded an EIR given the environmental impacts that would result from constructing facilities

The Porter Cologne Act’s beneficial use, reasonableness, and economic analyses are required

Regulation through the NPDES program would be the better approach

Note that the currently proposed special protections are similar to the BMP-based approach of the NPDES permits

The 2008 Revised Draft “Special Protections”

Discharges composed of storm water runoff “must not alter natural ocean water quality in an ASBS”

Non-storm water discharges must end

Storm water discharges “during a design storm should be controlled so as not to exceed target levels at the end-of-pipe set out as the Table B instantaneous maximum Water Quality Objectives in Chapter II of the Ocean Plan”

No new storm water outfalls, and no new contribution of waste, are allowed, as measured from a January 1, 2005 baseline

The 2008 Revised Draft “Special Protections” (continued)

Required findings --

The exception will not compromise protection of ocean waters for beneficial uses

The public interest will be served

Permit coverage (NPDES or otherwise) still required

Unclear whether special conditions will be integrated into NPDES permits, making them citizen enforceable

The 2008 Revised Draft “Special Protections” (continued)

Discharges are allowable only if they:

Are essential for flood control or slope stability, including roof, landscape, road, and parking lot drainage

Are designed to prevent soil erosion

Occur only during wet weather

Are composed only of storm water runoff

An “and” or and “or” is missing

The purpose of the first two requirements is unclear, and could seriously limit the exception

Definition of “Natural Water Quality”

“ Discharges must be controlled to protect natural water quality in the ocean receiving water of the ASBS, as determined by comparison to reference areas identified via the regional monitoring program(s).” – 2008 Draft at 13.

Southern, Central and Northern California regional monitoring programs established

Effectively delegates standard setting and is open ended

Monitoring Program Requirements

Core discharge monitoring

Runoff flow measurements – for greater than 18 inch municipal/industrial outfalls, required after each storm event

Runoff samples and analysis – annual sampling specified

Ocean receiving water monitoring – choice between:

Prescriptive individual monitoring addressing ocean plan constituents, sediment sampling, quantitative benthic surveys, and bioaccumulation studies

Participation in regional integrated monitoring program of ocean reference areas

Compliance Timetable

Immediate prohibition of dry weather flows

Six months after the effective date, an “action strategy” is to be described in the dischargers’ SWMP and/or SWPPP

Eighteen months to institute non-structural controls

Four years to commence operation of structural controls

Four years to achieve “natural ocean water quality conditions”

Required Contents of Storm Water Management Plans and SWPPPs

Must include a map of surface drainage, prioritizing discharges, showing areas of sheet runoff, and identifying any structural BMPs already employed

Must describe the measures by which all dry weather flows have been eliminated

Must address minimum inspection frequencies (twice annually for outfalls over 18 inches)

Must address pollutants in storm water runoff through the implementation of BMPs to:

Target compliance with Table B maximum Water Quality Objectives

Ensure “natural water quality in the receiving water”

Iterative approach (additional BMPs) applies where alterations of natural water quality are occurring ( one round only )

Key Issues with the 2008 Draft Exception Policy

Still does not address storm water runoff in a comprehensive and logical way

The standards are unclear, particularly the definition of “natural ocean water quality”

The monitoring program lacks a clear purpose and is excessive

The MS4 NPDES program would be a more logical framework for addressing the issue

Costs and benefits still have not been addressed

Proposition 84 Grants

Approximately $32 million available to assist with activities to address ASBS discharges

16 applications recommended for funding

The Pending 2009 Ocean Plan Revision

Proposed amendments are generally non-substantive

Does not respond to the request of environmental organizations and dischargers alike to address the ASBS issue in a comprehensive, programmatic fashion

Does not update the Ocean Plan to conform to the language in SB 512 on the ASBS issue (i.e reference to “special conditions” as an alternative to a discharge prohibition)

Adds maps of the current ASBS boundaries

Updates the list of exceptions already granted, to include the USC Wrigley and UCD Bodega marine labs

Otherwise leaves in place the current language

Upcoming Developments

A revised “special protections” document has been delayed

State Board staff have indicated that they have now shifted from a negative declaration to a programmatic EIR approach

All sides asked for this

It will require some time

Pending applicants still on hold until these processes are completed

Conclusions

Program lacks focus and a rationale

The requirements are inconsistent and confusing and the process has been drawn out

Costs and benefits have never been evaluated

All sides are unhappy

Contact Information Alan Waltner Law Offices of Alan Waltner 779 Dolores Street San Francisco, CA 94110 [email_address] 415-641-4641 www.waltnerlaw.com