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HomeMy WebLinkAbout24 - ASBS Response LetterI E • CITY OF NEWPORT BEACH MEMORANDUM TO: Mayor Webb and Members of the City Council FROM: Dave Kiff, Assistant City Manager DATE: May 19, 2006 RE: Item # 24— ASBS Response Letter — REVISED Attached is the staff report for the above - mentioned item. Please note that the recommended actions are REVISED from the one printed in the earlier agenda. As always, if you have any questions about this, please do not hesitate to give me a call (949- 644 - 3002). Dave City Hall 9 3300 Newport Boulevard. Post Office Box 1768 • Newport Beach, California 92659 -1768 CITY OF NEWPORT BEACH • CITY COUNCIL STAFF REPORT Agenda Item No. 24 May 23, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 9491644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Response to the State Water Resources Control Board (SWRCB) regarding the Newport Beach Marine Life Refuge Area of Special Biological Significance (ASBS) REVISED STAFF REPORT AND REVISED RECOMMENDED ACTIONS ISSUE: How should the City respond to an upcoming May 31, 2006 deadline to request an "exception" to the California Ocean Plan for direct discharges into the Newport Beach • Marine Life Refuge (MLR) "Area of Special Biological Significance" (ASBS)? RECOMMENDATION: 1. Direct City staff to submit all relevant data to the State Water Resources Control Board (SWRCB) relating to the Newport Beach MLR ASBS and the Irvine Coast MLR ASBS: and 2. Authorize the Mayor to write a letter to the SWRCB stating the City's interest in working within the SWRCB's Exception Process for the Newport Beach MLR ASBS provided that the City's participation leads to an outcome within the Exception Process is reasonable and attainable; and 3. Authorize City staff to work with other communities adjacent to ASBSs regarding ways to protect ASBSs from adverse discharges even if such discharges do not meet the so- called "zero- molecule" (of pollutants) rule. DISCUSSION: California has 34 Areas of Special Biological Significance (ASBSs) off of our coastline (see the attachments for a map of all,34,areas). An ASBS is way to designate ocean waters in manner that achieves special protection in light of critical activities - like • Action Regarding Newport Beach ASBSs May 23, 2006 Page 2 • dolphin breeding and birthing - that may happen there. The State Water Resources Control Board (SWRCB) designates all ASBSs. The California Ocean Plan (adopted in 1972 and revised over time as a plan to manage California's offshore resources) directs that "wastes shall not be discharged to areas designated as being of special biological significance" and that any runoff into the ASBS is subject to discharge prohibitions established by the SWRCB and its nine regional boards (RWQCBs). Orange County has three ASBSs - two of which are adjacent to or within Newport Beach's city limits: • Newport Beach Marine Life Refuge ASBS • Irvine Coast Marine Life Refuge ASBS, and the • Heisler Park Ecological Reserve ASBS (in Laguna Beach) In November 2000, the Santa Ana RWQCB issued a cease and desist order (CDO) to various parties regarding the Irvine Coast Marine Life Refuge ASBS. The Irvine Coast MLR ASBS receives drainage water from a portion of the Newport Coast development, Pacific Coast Highway, Crystal Cove State Park, and the El Morro area. The CDO directed that the parties "cease and desist" from new waste discharges (including storm water and non -storm water runoff from developed areas) and from existing discharges over the coming two years.. The State Board later amended the • CDO to direct Caltrans to "cease and desist" within five years instead of two. Caltrans' obligation has been constructed along PCH near the Crystal Cove Promenade Shopping Center in the Newport Coast. The ASBS off of Little Corona - the Newport Beach Marine Life Refuge ASBS ( #32) - extends oceanward from Poppy Avenue to the easterly edge of Cameo Shores. The ASBS' seaward boundary is 1000' from the beach (see map on the next page). A SWRCB- commissioned survey shows that drainage into the Newport Beach ASBS comes from 21 separate conveyances, including three natural watersheds (two of which are Buck Gully and Morning Canyon) and 18 constructed conveyances, including small property drains. Following the City's annexation of the Newport Coast community, the City took limited jurisdiction over about 2/3rds of a 2nd ASBS - the Irvine Coast Marine Life Refuge ASBS ( #33). This ASBS is shown on the map on Page 4 of this Staff Report. A SWRCB - commissioned survey shows that drainage into the Irvine Coast ASBS comes from 32 separate conveyances, including 16 natural watersheds (the largest of which are Los Trancos, Muddy Creek, and El Morro Canyon) and 16 constructed conveyances, including small property drains and the drainage off of the Pelican Point residential community. • J. Action Regarding Newport Beach ASBSs May 23, 2006 Page 3 Santa Ana Regional Water Quality Control Board State Water Quality Protection Area Area of Special Biological Significance No. 32 Newport Beach Marine Life Refuge l`F - ,3�,� Tr"��s�� R � , ,% ➢�eWr�Y.,. t,iy°'�6vy.. pay`; j.�, �,r�,{ 1. �+ � . 1 l if Y � >•1 J. W y iii .I 1a� '.. ll.. 9•_.,(.J , �; H4iii \AAA x'i Sr o - - F F ASBS PnM ASOS 33 t � - 0 0.25 ' os oha t INAO Ref, Map: USGS Newport Beach, CA D. E. Gregorio USGS Laguna Beach, CA C. S. Bianchi Division of water Quality January 2003 13 \J is • i' )"W 32 . � 5 • Action Regarding Newport Beach ASBSs May 23, 2006 Page 4 Santa Ana Regional Water Quality Control Board State Water duality Protection Area Area of Special Biological Significance No. 33 Irvine Coast Marina Life Refuge , K 3 ,s Ref. Map: USGS Laguna Beach, CA \J � R M Syr ^� 4 '- d �� t 5s D. E. Gregorio C. S, Bianchi Division of Water Quality January 2003 Action Regarding Newport Beach ASBSs May 23, 2006 Page 5 • In October 2004, the City received a letter from the SWRCB that said: "Your (the City's) discharge of stormwater (dry and wet weather runoff) into the Newport Beach Marine Life Refuge Area of Special Biological Significance is subject to the prohibition against waste discharges to an ASBS. " Note that the letter did not instruct us to do anything regarding the Irvine Coast MLR ASBS. Instead, California State Parks received a letter for the Irvine Coast MLR ASBS. The SWRCB letter further told us that exceptions are granted in some cases and that the City must tell the SWRCB what it intended to do (ask for an exception versus stop direct discharges immediately) by January 1, 2005. Generally, the Ocean Plan has been interpreted to prohibit direct discharges of waste into ASBSs. Direct discharges are those which go down a constructed conveyance (storm drains, property drain pipes) - not natural watersheds like Buck Gully or Morning Canyon. Natural watersheds are typically regulated by the National Pollutant Discharge Elimination System (NPDES) permits instead of the Ocean Plan's directives. In late 2004, we asked the Council to allow us to ask the SWRCB for an exception to the "no direct discharges to an ASBS" requirement. Council agreed at the time. Then - Mayor Steve Bromberg sent the letter (see attachments). Today, about 18 months later, we have embarked (with the City of Laguna Beach and • California State Parks) upon a comprehensive plan to analyze and monitor the two local ASBSs and the Heisler Park Ecological Reserve ASBS. State grant funds - of more than $1 million - have assisted us in this analysis. In part, the analysis is an attempt to show to the State that discharges of runoff into the two ASBSs are not causing measurable adverse impacts to the coastal waters. The analysis and data (prepared by Weston Solutions, Inc of Carlsbad, CA) is now in draft form and is being reviewed by staff and by our stakeholder group, which includes a number of recognized experts in marine protection. We hope to be able to show the State that the area's resources are best spent on reducing runoff in these ASBSs (via special irrigation controls and other best management practices or "BMPs ") and cleaning up what runoff remains. The City Council's recent discussions about Buck Gully and Morning Canyon (improving conservation, adding ET controllers, limiting plantings to less- irrigation intensive species, applying Fuel Modification Zones with California - friendly plant palettes, and more) will be helpful in reducing - if not eliminating - dry weather flows. The alternative - a complex and extremely expensive system of linking up private property drainage pipes, cement step drainages, and City storm drains (and v- ditches) into a constructed diversion that takes dry weather and storm flows into the wastewater system - may be impossible to achieve. Indeed, such a system would necessarily • involve re- designing and reconstructing the area's wastewater system to accommodate Action Regarding Newport Beach ASBSs May 23, 2006 Page 6 • both dry weather and storm flows. There may not be pipes nor easements large enough to hold such storm flows. In summary, we believe that the money spent on a diversion system - into the millions of dollars - should be used to clean up flows from Buck Gully, Morning Canyon, the San Diego Creek, and the Santa Ana River to the Maximum Extent Practicable ( "MEP "). As noted, in late 2004, we thought that asking for an exception from the Ocean Plan's prohibitions (called the "Exception Process ") should be an acceptable path to follow. We still believe that this is the case, but with some important caveats and as a result of recent conversations we have had with SWRCB staff. Other area stakeholders have suggested to us that some SWRCB staff members and other environmental advocates (advocates with whom we have agreed on many other issues) have pressed the SWRCB to apply a "Zero - Molecule (of pollutants) Rule" - the Rule generally says that it is possible (and therefore required) to achieve a discharge of pristine water into each ASBS such that each discharge has zero molecules of pollutants - in both dry weather and storm environments. The agencies that have asked for (and received) exceptions thus far - the University of California's Scripps Institution of Oceanography in San Diego and the University of Southern California's Wrigley Marine Science Center on Catalina Island - will have to • undergo an expensive monitoring program with the eventual goal of meeting the Ocean Plan's limits. Therefore, some stakeholders point to the Scripps and USC examples and say that that Exception Process is short-term, temporary, and expensive. They note that both Scripps and USC have undergone complex CEQA work, public hearings before the SWRCB, and significant .monitoring programs (monitoring that is somewhat less expensive for them, since their services include ocean research and testing). We have discussed the Zero - Molecule Rule with SWRCB staff, as recently as May 17t ", 2006. SWRCB staff say that they are not seeking a zero - pollution rule and are instead, asking that, by the end of a full NPDES permit term (typically 5 years), the pollutant direct discharges shall be consistent with similar discharges from non - urbanized watersheds. This will not be easy to attain, but it is more attainable than the Zero - Molecule Rule. Following our conversations with SWRCB staff, we believe that the most proper course of action is to continue to work with the SWRCB within the Exception Process. We recommend this course out of respect this community's interest in protecting water quality. We view our City as a leader in water quality protection statewide, and hope that our participation will cause the SWRCB and others to objectively conclude that our ASBS monitoring and resultant plan will protect the ASBSs to a level that meets SWRCB standards. • G Action Regarding Newport Beach ASBSs May 23, 2006 Page 7 That noted, we believe that the costs of fully eliminating all pollutants from direct • discharges significantly outweigh the water quality benefits of these expenses. As such, we will continue to assert with others that any attempts to apply a Zero - Molecule Rule (instead of MEP or, arguably, meeting the baseline standard of a nearby non - urbanized watershed) isn't practical nor attainable. Finally we note that other entities (cities, counties, business alliances) — many of whom who are arguably not as supportive of water quality protection as we are — have formed coalitions attempting to influence the SWRCB in a way that is more in line with enacting BMPs and achieving pollution reduction to MEP. If participation with these entities is warranted, this Agenda Item seeks Council authorization to work with these entities to ask the SWRCB to look at ASBS protection in a more cost - effective way. It is unfortunate that decisions like these can come down to resources — but we cannot recommend getting to zero - molecules of pollution into our ASBSs when so many other water quality programs would suffer. In summary, we believe that we have three options before us: 1. Agree to cease and desist all direct discharges into the Newport Beach MLR ASBS. 2. Participate in the Exception Process, provided that the end of the Process leads to an outcome that reflects practical realities of our finances and our watersheds; 3. Not respond to the SWRCB's May 31, 2006 deadline, instead working with other entities who are seeking alternatives to these two options. • Staff recommends the second option. Committee Action: The Coastal /Bay Water Quality Committee discussed this at its November 18 "' meeting and expressed its concerns over meeting the Zero - Molecule Rule, if applied. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: (. \_. Dave <i Assistant City Manager Attachments: Map of ASBSs Statewide December 2004 Letter from Mayor Bromberg Letter of August 18, 2005 from SWRCB • Draft Letter from Mayor Webb to SWRCB • Action Regarding Newport Beach ASBSs May 23, 2006 Page 8 ASBSs Statewide • ry State Water Resources Control Board'' ;C9lUomla Envi ronmental Protection Agency ' 6 Ragk4h 6 d 14 tt Ragl • pia A " .p 4 'gyp,. { -"+a � • k F " RaQlonl 7'., • ry CITY OF NEWPORT BEACH go December 16, 2004 Ms. Celeste Cantu Executive Director State Water Resources Control Board Post Office Box 100 Sacramento, California 95812 -0100 Re: PROHIBITION OF WASTE DISCHARGES INTO THE NEWPORT BEACH MARINE LIFE REFUGE AREA OF SPECIAL BIOLOGICAL SIGNIFICANCE Dear Ms. Cantu: This letter responds to your letter of October 18, 2004 regarding the Newport • Beach Marine Life Refuge ASBS. The City hereby notifies you and the Board that it will seek an exception to the prohibition of wet weather and dry weather stormwater flows into this ASBS. We look forward to working with the State Board on this matter in the coming year. If you have any questions about this letter, please contact Dave Kiff, Assistant City Manager, at 949- 644 -3002. Sincerely, Mayor of Newport Beach • City Hall • 3300 Newport Boulevard • Post Office Box 1768 Newport Beach, California 92658 -8915 • www.city.newport- beach.ca.us State Water Resources Control Board C Lloyd, Ph.D. Agency Secretary August 18, 2005 Division of Water Quality 19014 Stmot -^Saawnento,CaEfomia 95814- (916) 3415455 Mailing Address: P.O. Box 100 • Sacramento, California - 95812 -0100 FAX (916) 341 -5463 - Internet Address: hnp: / /www.waterboards.ca.gov The Honorable Steven Bromberg Mayor of City of Newport Beach City Hall 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Mayor Bromberg: REQUEST FOR EXCEPTION FOR DISCHARGES INTO AREAS OF SPECIAL BIOLOGICAL SIGNIFICANCE Arnold Schwanenegger Governor This letter is to acknowledge the receipt by the State Water Resources Control Board (State • Water Board) of your letter dated December 16, 2004, requesting an exception from the California Ocean Plan (Ocean Plan) waste discharge prohibition for your discharges into the Newport Beach (a.k.a. Robert E. Badham) Area of Special Biological Significance (ASBS). The following specific information needs to be submitted, by May 31, 2006, to support the State Water Board's consideration of an exception to the Ocean Plan for discharges to ASBS: 1. The discharger's name, address, and contact information. 2. Any applicable permit or order numbers, if the discharge is or has been regulated under a National Pollutant Discharge Elimination System (NPDES) Permit or Waste Discharge Requirements. . 3. A signed statement requesting coverage under an exception from the ASBS waste discharge prohibition found in Sections RI.E.1 and RI.H.2 of the Ocean Plan. 4. Documentation that shows that allowing the discharge of storm water runoff to continue will not compromise protection of ocean waters for beneficial uses. Note that one beneficial use is the preservation and enhancement of ASBS, which are defined as "those areas designated by the [State Water Board] as requiring protection of species or biological communities to the extent that alteration of natural water quality is undesirable." This means that any data that you may have on the status and description of marine life in the ASBS, and on the natural background of the ASBS, are relevant and must be submitted. At a minimum, you must submit a quantitative description of marine life near the discharge and at a reference location away from the discharge. 5. An assessment of all available historical data on discharge volume, chemical and physical constituents, toxicity, and indicator bacteria in the runoff and in the ambient marine water of the ASBS. At a minimum, the information must include the measurement of a representative • California Environmehtal Protection Agency 0 Recycled Paper 10 Mayor Steven Bromberg -2- • sample within the last two years or the upcoming storm season (runoff and adjacent marine receiving water) during a storm event for each of the following constituents: a. total Ocean Plan metals b. polynuclear aromatic hydrocarbons (PAHs) c. oil and grease d. ammonia nitrogen e. acute toxicity for a marine species f. critical life stage (chronic) toxicity for three marine species g. indicator bacteria including total coliform, fecal coliform (or E. coli), and enterococcus. The applicable Ocean Plan detection limits and other applicable monitoring requirements must be adhered to in performing this work. If you are responsible for more than ten municipal discharge points, then a representative sample must be (or have been) collected and analyzed for one of every ten discharge points. All samples must be collected during a storm event that is greater than 0.1 inch and at least 72 hours from the previously measurable storm event. Where feasible, the variance in the duration of the event and the total rainfall of the event should not exceed 50 percent from the average or median rainfall event in that area. 6. A characterization of the watershed areas draining to the ASBS in terms of land use, population density, and percentage of impervious surface. If there is land under your • jurisdiction where pesticides or herbicides are applied, provide a listing of such treatments in terms of the chemicals and application rates. 7. A description of current treatment processes, pollution controls, and/or best management practices currently used or planned (with a schedule for implementation). 8. An analysis of alternatives to the discharge and their impacts if implemented. 9. Compliance history for drainages into the ASBS, including any spills or upset events that resulted in the discharge of toxic or otherwise prohibited substances, including untreated or partially treated wastewater. 10. Documentation that shows that the public interest will be served by granting the exception. Please send this information to the State Water Board, Division of Water Quality, attention Dominic Gregorio, and to the Executive Officer of the Santa Ana Regional Water Quality Control Board (Santa Ana Water Board). The State Water Board is holding a workshop in Monterey on August 31, 2005 to discuss the ASBS exception process. At that workshop, staff will propose the concept of a general exception as one option for addressing storm water runoff into ASBS. The exception process may be amended following the workshop. However, any exception is likely to include minimizing or eliminating dry weather flows, and reducing pollutants draining to ASBS to maintain natural water quality in the receiving waters. In the meantime, you are requested to plan for and institute best management practices to eliminate or minimize dry weather flows and to reduce pollutants in storm water runoff. • California EnvironmAtal Protection Agency 0 Recycled Paper • Mayor Steven Bromberg -3- If the State Water Board issues an exception, the Santa Ana Water Board may allow your discharges to be�covere&undef theAMunicipaLSeparate Storm Sewer Systems Phase I NPDES Permit, with appropriate provisions required in your storm water management plan. In all cases, the Santa Ana Water Board will enforce the mitigation measures described in the exception if it is granted by the State Water Board. If you have any questions, feel free to contact me at (916) 341 -5458 or smartinson@ waterboards.ca.gov, or Dominic Gregorio, Chief of the Ocean Standards Unit, Division of Water Quality, at (916) 341 -5488 or dereeorio@ waterboards.ca.yov. Sincerely, Original signed by Stan Martinson, Chief Division of Water Quality • cc: Mr. Gerard Thibeault, Executive Officer Santa Ana Regional Water Quality Control Board 3737 Main St. Suite 500 Riverside, CA 92501 Bcc: Celeste Cantu, EXEC Tom Howard, EXEC Sheila Vassey, OCC John Ladd, DWQ Bruce Fujimoto, DWQ Dominic Gregorio, DWQ \tdwgdatatdata\Dam % bmedVYrHER\SecMim wata Section \oceao\ASBS city of Newport Beach.dac • California Environmental Protection Agency rrj Recycled Paper N DRAFT LETTER May 31, 2006 Mr. Dominic Gregorio, Ocean Standards Unit Division of Water Quality State Water Resources Control Board, Division of Water Quality Post Office Box 100 Sacramento, CA 95812 RE: Newport Beach Marine Life Refuge ASBS Dear Mr. Gregorio: This letter is in response to the State Water Resource Control Board's ( SWRCB) request to us of August 2005 to provide monitoring data and other information to the Board regarding the Newport Beach Marine Life Refuge Area of Special Biological Significance ( "Newport Beach MLR ASBS ") before a May 31, 2005 deadline. With this letter, we express the City's intent to continue to participate in the "exception" (to the California Ocean Plan) process. However, I need to stress to you that the City has significant concerns about the • exception process if it leads to an outcome that requires the City to either divert all direct discharges to the Newport Beach MLR ASBS or that would require the remediation of such discharges to a point where — in both dry and wet conditions — they contain zero molecules of pollutants. Either outcome is extremely problematic — the diversion of all discharges may be physically impossible given our geography and infrastructure while the remediation to pristine conditions may be so prohibitively expensive that essential City programs (including our comprehensive Water Quality program for Newport Bay and our ocean shoreline) will have to be scaled back. We believe that protecting the Newport Beach MLR ASBS is very important. We also believe that we can achieve the correct level of protection with programs that are sensible, practical, and implementable. We look forward to working with you and the SWRCB to accomplish these programs. Sincerely, DON WEBB Mayor of Newport Beach 13 •