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

Presented by Alan WaltnerLaw Offices of Alan WaltnerCASQA 2009 November Meeting

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

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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

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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

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Pacific Grove ASBS

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Pacific Grove ASBS

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

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Julia Feiffer Burns ASBS

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

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San Diego – Scripps ASBS

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

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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

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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”

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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

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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)

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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.”

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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

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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)

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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

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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

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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

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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

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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

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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

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

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

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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

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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 . . . .”

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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”

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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)

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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

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Proposition 84 Grants

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

• 16 applications recommended for funding

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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

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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

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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

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Contact Information

Alan WaltnerLaw Offices of Alan Waltner779 Dolores StreetSan Francisco, CA 94110

waltnerlaw@gmail.com415-641-4641www.waltnerlaw.com