HomeMy WebLinkAbout17 - Newport Beach Waterways as Water Quality-LimitedITEM 17
TO: Members of the Newport Beach City Council
FROM: Dave Kiff, Assistant City Manager
SUBJECT: City's Position on Proposals to List Newport Beach Area Waterways as
Water Quality- Limited
RECOMMENDED Authorize the Mayor to issue a letter to the State Water Resources Control Board
ACTION: regarding several waterways proposed for listing as "water quality limited"
under Section 303(d) of the federal Clean Water Act.
BACKGROUND: The federal Clean Water Act (Section 303[d]) declares that states must adopt water
quality standards that" protect the public health or welfare, enhance the quality
of water and serve the purposes of (the Act)" In California, the State Water
Resources Control Board (State Board) prepares these standards and submits
them to US EPA for approval.
Generally, the State Board looks to the Clean Water Act and the Porter - Cologne
Act (California's water quality law) to get to water quality standards for water
bodies, like bays. First, the State Board - via one of its nine Regional Water
Quality Control Boards (Regional Boards) identifies beneficial uses for the bay.
These uses can be water contact recreation, shellfish harvesting, and more. Then
it considers the economic effects of specific water quality objectives for a bay and
adopts the water quality standards. Water bodies that don't meet the standards
are considered water quality limited and are subject to the development of a plan
called a total maximum daily load or TMDL.
A TMDL is a written, quantitative assessment of water quality problems and
contributing pollutants. A TMDL typically:
• Specifies the amount a pollutant needs to be reduced to meet water quality
standards,
• Allocates pollutant load reductions among pollutant sources in a watershed,
and
• Is the basis for an Action Plan that restores a water body by identifying and
adhering to point source (contaminants from a known, identifiable source)
and non -point source (contaminants from multiple and often unknown
sources) controls.
Once a Regional Board has held hearings on and adopted a TMDL for a water
body, the Board amends its Basin Plan to reflect the new TMDL. A Basin Plan
looks at an entire watershed area and its beneficial uses to ensure that the uses
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and the water quality objectives for the Basin are science -based and will be met
over time.
TMDLs. TMDLs received new emphasis in the early 1990s as citizens
organizations brought legal action against the federal Environmental Protection
Agency (US EPA) to comply with the Clean Water Act by listing waters as water
quality limited and by developing TMDLs. Eighteen suits nationwide, including
one brought by Newport Beach -based Defend the Bay to enforce the Clean Water
Act, have forced development of TMDLs. Defend the Bay's Consent Decree with
the US EPA led to four TMDLs for Newport Bay.
Three TMDLs are in place today and one is under development
• Sediment. Adopted on October 9,1998, the Sediment TMDL requires local
partners (stakeholders in the watershed) to survey the Bay regularly and to
reduce annual sediment coming into the Bay from 250,000 cubic yards to
125,000 cubic yards (a 50% reduction) by 2008. The TMDLs' goal is to reduce
dredging frequency in the Bay to once every 20 to 30 years.
• Nutrients. Approved by US EPA on April 16,1999, the Nutrient TMDL
limits nitrogen and phosphorus inputs to the Bay. The Nutrient TMDL
attempts to reduce the annual loading of nitrogen by 50% — from 1,400
pounds per day today to approximately 850 to 802 pounds per day at San
Diego Creek - by 2012. Phosphorus loading must fall from 86,912 pounds
per year in 2002 to 62,080 pounds by 2007.
• Fecal Coliform. Approved on December 30,1999, the Fecal Coliform TMDL
will attempt to make the Bay meet water contact recreation (RECD standards
(swimming, wading, surfing) by 2013 and shellfish harvesting (SHEL)
standards (where waters support shellfish acceptable for human
consumption) by 2019.
• Toxics. Under development today and planned for implementation later this
year, the Toxics TMDL will address Bay inputs like heavy metals (chromium,
copper, lead, cadmium, zinc) and priority organics (endosulfan, DDT,
Chlordane, PCBs, Toxaphene) and pesticides like diazinon and
chlorpyriphos.
While we were first in the region to have TMDLs, Newport Bay is not the only
water quality limited water body in the area. Almost all urban streams and
rivers in Southern California are subject to TMDL development. As noted, the
first step towards getting a TMDL in place is to "get the water body listed" on the
Section 303(d) list by the State Board. Anyone can propose listing — generally,
each of the nine Regional Boards triennially examine the water bodies within
their jurisdiction and forward recommendations to the State Board.
The pictures and chart that follow show the water bodies that the State Board
will consider from our Region (Region 8). Some have been forwarded directly by
our Regional Board. Local environmental advocacy groups submitted others:
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Listing is typically controversial. The proposed listings for consideration by the
State Board in 2002 are no exception, for example:
Newport Coast Creeks. The Newport Coast Master Association (NCMA)
officially opposes listing any of the creeks in the Newport Coast (including
Buck Gully). NCMA believes that the listing is based on beneficial uses
(water contact recreation) that don't exist in these creeks. OC CoastKeeper
claims otherwise, with photos of children swimming in and drinking from
Buck Gully runoff. They note, too, that these creeks drain into an Area of
Special Biological Significance (ASBS), into which State law generally
prohibits any input of a contaminant.
Newport Beach Shoreline. The City's Coastal /Bay Water Quality Committee
officially opposed listing this stretch of ocean beach, arguing that there is no
scientific basis for this listing and that the bacteria problem there occurred
only once during a study period and is, arguably, an aberration. C/B WQC
thinks that the Regional Board's limited TMDL planning resources should be
spent in areas with more significant water quality problems.
Trash TMDLs. Defend the Bay argues that Newport Beach and Newport Bay
are both severely impacted by trash from within the city and within the
watershed. Most watershed cities are unaware of Defend the Bay's proposal
to list the Santa Ana River and Newport Bay as water quality limited due to
trash, but similar Trash TMDLs in Los Angeles County have been vilified by
governments as unattainable.
How a TMDL Works Once It's in Place. Most TMDLs require monitoring of
contaminants and a follow -up plan to reduce the inputs of these contaminants.
For example, a Total or Fecal Coliform TMDL for Buck Gully would likely result
in:
• Routine monitoring of storm drains, ditches, and tributaries to Buck Gully;
• Specific limits on the amount of TC /FC that can enter the Gully at any one
location;
• Runoff prevention and runoff treatment strategies, including:
➢Resident and HOA education
➢ Weather -based 'irrigation controls
➢ Modification of landscaping material
➢ Detention facilities within the Gully or adjacent to it that naturally kill
bacteria biologically
➢ Structural modifications to storm drains, including filters and debris
screens on catch basin inlets
➢ More frequent cleaning of Gully storm drains by the City and by HOAs
• Reporting and follow -up monitoring to ensure that we meet the limit within
the TMDLs.
Alternatives to Listing and to TMDLs. Not every Regional Board likes the TMDL
process. Some environmental advocates and some Boards say that TMDLs take
too long to develop and allow a water body to be polluted for too long as the
TMDL is in its early stages. The San Diego Regional Board took such a
perspective on Aliso Creek two years ago when it directed the County of Orange
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and the City of Laguna Niguel to "clean up and abate" pollution from a
residential storm drain.
These are the kinds of administrative or judicial tools at a Regional Board's
disposal to meet water quality objectives:
• Notices to Comply - for minor violations, Regional Board staff can issue a
notice to comply before leaving the site of an inspected area. Compliance
must occur within 30 days.
• Cease and Desist Order (CDO) - Regional Boards can issue a CDO against an
actual or threatened violation of water quality objectives. CDO must be
adopted by the Regional Board itself. In October 2000, Caltrans and the
Irvine Company received a CDO for discharges into the Irvine Coast ASBS,
resulting in the development of a comprehensive water quality plan for the
Crystal Cove development in eastern Newport Beach.
Crystal Cove /Newport Coast WQ Detention Facility
• Clean -up and Abatement Order (CAO) - Regional Boards can issue a CAO
when waste is discharged or threatened to be discharged. Respondents to
CAOs must clean up the waste OR abate the effects of the discharge. When a
discharge is threatened, CAOs can direct potential dischargers to take other
remedial actions.
• Referral to Attorney General - Upon request of the Regional Board, the
Attorney General may issue a restraining or other order to persons not
complying with Board permits and directives.
State law (SB 709, 2000) requires a "mandatory minimum penalty" for a "serious
violation" of water quality objectives. The minimum penalty amount is $3,000.
Regional Boards can direct the violator to spend this amount on a supplemental
environmental project related to the enforcement. The maximum fine is $25,000
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per day. Typically, any enforcement action also requires dischargers to monitor
water quality in an affected area once a Regional Board issues an order.
Staff Recommendation.
I recommend that the City:
1. Support Defend the Bay's proposal to list Newport Bay and the Santa Ana
River for trash. Doing so accurately reflects a significant trash problem
and will enlist upstream cities in the fight to reduce trash.
2. Support the C/B WQ Committee's recommendation that the State Board
NOT list the Newport Beach Shoreline (1000' downcoast of the Santa Ana
River) for fecal and total coliform, because doing so diverts resources
towards an insignificant problem and away from "bigger targets."
3. Support the listing — after Basin Plan amendment for certain segments of
the creeks that may provide water contact recreation as a beneficial use —
of Buck Gully Creek, Los Trancos Creek, and Muddy Creek given that the
alternative to a TMDL (a CDO or a CAO) is for more difficult to administer
and attain.
THIS AGENDA This Agenda Item authorizes Mayor Ridgeway to issue a letter to the State Water
ITEM: Resources Control Board consistent with the above recommendations.
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