Transcript An Economic Impact Evaluation of Proposed Storm Water

Executive Briefing on
Basin Plan Litigation
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Overview of Issues
 Review of Basin Plan study
 Recommendations
September 2008
Why are we here?
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Basin Plan standards are outdated and scientifically
flawed. Last comprehensive update in 1994 – 48
additions to the plan in the last 14 years.
Group has offered to assist in a comprehensive Basin
Plan update/ has had no success with water boards.
Water Boards and EPA continue to adopt TMDLs,
based on inadequate science.
NPDES and TMDL numeric requirements are
expensive, technically difficult and threaten other critical
services.
Not clear that implementation benefits justify the costs.
Basin Plan Report
Summary
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NAS recommends that water quality standards be
reviewed prior to starting the TMDL program.
Cities, County, Sanitation Districts and private sector
felt it was necessary to review Basin Plan prior to roll
out of TMDLs. Study started in 2002 and report
finalized in 2003.
Comprehensive review (36 boxes of Regional Board,
State Board, and EPA records) provides solid
foundation for litigation
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Cities
LA County DPW
LACSD
CICWQ
LA Chamber of
Commerce
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BIA
Building & Construction Trades
Council
Contractors associations
Gateway Cities COG
Gateway Chambers Alliance
CPR
Reasons for Study
The Basin Plan:
• Formulated by the Los Angeles
Regional Water Quality Control
Board and approved by the State
Board.
• Sets compliance requirements for
ground and surface water quality.
• Affects local government, industry,
transportation, water supply, and
wastewater throughout Los
Angeles and Ventura Counties.
Porter-Cologne
Section 13000
“…activities and factors…shall be regulated
to attain the highest water quality which
is reasonable, considering all demands
being made and to be made on those
waters and the total values involved,
beneficial and detrimental, economic and
social, tangible and intangible.”
Porter-Cologne
Section 13240
“Each regional board shall formulate and adopt
water quality control plans for all areas within the
region. Such plans shall conform to the policies
set forth in Chapter 1, beginning with Section
13000, of this division and any state policy for
water quality control. During the process of
formulating such plans, the regional boards shall
consult with and consider the recommendations
of affected state and local agencies.”
P-C Section 13241
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Regional Boards must consider the following in setting
objectives:
Past, present, and probable future beneficial uses
 Environmental characteristics of the watershed, including
“quality of water available thereto”
 Water quality conditions that could reasonably be achieved
through coordinated control of all factors which affect water
quality
 Economic considerations
 Need for developing housing
 Need to develop and use recycled water
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P-C Section 13242
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Basin Plans must include a program of
implementation, including
A
description of the nature of actions which are
necessary to achieve the objectives, including
recommendations for appropriate action by any
entity, public or private
 Time schedule for those actions
 Description of required monitoring
Reasons for Study
Key Research Question:
Have the waterboards complied with
important legal requirements and
was the Basin Plan appropriately
applied to storm water (i.e. the
scientific foundation)?
Findings
A. Failure to Consider the Economic Impacts
of applying the Standards to Stormwater,
Failure to Identify Implementation
Measures for Stormwater, and to Satisfy
Other Statutory Requirements.
B. Many Inadequate or Incomplete Water
Quality Objectives.
C. Many Unreasonable Beneficial Use
Designations.
Findings
A. Failure To Consider Statutory Factors-Example (1)
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The 1975 Basin Plan detailed the costs for wastewater
and industrial treatment plant upgrades.
• Storm water compliance
costs were never considered
because the standards were
explicitly never intended to
apply to storm water and
urban runoff.
• The same water quality standards are now being
applied to storm water and urban runoff without the
required economic, reasonableness and other
assessments.
Findings
A. Failure To Consider Statutory Factors-Example (2)
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Post-1975, the Basin Plan and its supporting
administrative record generally lack the legally
required:
(1)
Description of actions required to meet
Plan objectives.
(2)
Specific actions that particular entities
must accomplish.
(3)
A time schedule for completing the
required actions.
Findings
B. Inadequate Water Quality Objectives-Example (1)
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Sea and fresh water
bacterial standards
ignore natural sources
(e.g., wildlife) and
seasonality (wet v. dry).
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Runoff from pristine, undeveloped areas can and
often does exceed Basin Plan objectives.
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No assessment of the costs of complying with Plan
bacterial objectives as they are applied to stormwater
has been performed.
Findings
B. Misapplied Water Quality Objectives-Example (2)
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California Toxics Rule objectives are being applied to
storm water, even economic impacts were not
evaluated.
EPA said application of CTR
objectives to storm water was
“beyond the scope of the rule”
(2000)
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CTR objectives are being are being used as the basis
for TMDLs, which are proposed to be implement
through NPDES permits as numeric limits, rather
than through Best Management Practices.
Findings
In it’s Responses to Comments on CTR, EPA stated:
“EPA will continue to work with the state to
implement storm water permits that comply
with water quality standards with an emphasis
on pollution prevention and best management
and practices rather than costly end-of-pipe
controls”
Findings
C. Unreasonable Beneficial Use Designations-Example (1)
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All area surface waters, including effluent channels,
were designated for “drinking water” (MUN) uses.
Concrete-lined channels
carrying wastewater and
urban runoff ...
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... are regulated like
mountain streams.
The reasonableness, costs and other impacts of MUN
designations have never been adequately considered.
Findings
C. Unreasonable Beneficial Use Designations-Example (2)
Fenced ...
locked ...
restricted
access
channels ...
... are designated for swimming and
other “recreational” (REC 1 & 2) uses.
… do now have limited high flow suspension
• The reasonableness, costs and other impacts of REC
1& 2 designations have never been adequately
considered.
How does this affect
regulated community?
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MS4 permit specifies that discharges shall not
“cause or contribute to” an exceedance of water
quality standards, even during extreme storms.
TMDLs are being adopted pursuant to consent
decree schedule and the boards propose to
adopt them as strict numeric limits…
• Even though science is inadequate
• Numeric limits cannot be reasonably
achieved
• Compliance measures are unknown
• Costs are likely to be exorbitant
How does this affect
regulated community?
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Example: Santa Monica Bay Bacteria Standards
Regional Board inserted a prohibition on dry and wet
weather flows exceeding bacteria limits into MS4 permit
 Agoura Hills estimates $6.8 million required in order to
comply with Malibu bacteria TMDL
 Compliance may not be possible at any cost
 Environmental groups file lawsuits against LA County and
City of Malibu
 Regional Board issues Notices of Violations to 20 cities –
alleging exceedances of bacteria limits
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How does this affect
regulated community?
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Example: Metals TMDLs
 Atmospheric
deposition and native soils may
contribute to exceedances of limits
 Field studies show limits are far too low
 Water Board estimated costs for compliance (LA
River Metals TMDL) range to $5.7 billion, and are
likely too low
How does this affect
regulated community?
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City NPDES and TMDL programs are set to fail, if
based on a faulty and unreasonable Basin Plan
standards;
EPA and Water Boards have effectively shifted the
costs of studies to Cities through the TMDL process,
instead of completing a comprehensive Basin Plan
update;
Water Boards continue to issue unreasonable
requirements, with no Basin Plan review (December
Board letter now indicates that development/
redevelopment should be no more than 5% effective
impervious - retroactive to the 2001 permit);
13267 letters for indicator bacteria, not pathogens
Recommendations
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Existing and future Basin Plan water quality objectives
must explicitly consider reasonableness, cost and all
required factors.
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Reasonableness, cost and all required factors should
be considered prior to setting NPDES or TMDL
requirements.
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If costs or other impacts are significant, a detailed
rationale is required under State Board guidelines.
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Current water quality objectives affected by natural
conditions should be reassessed to identify
reasonable regulatory goals.
Recommendations
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The reasonableness of applying point-source objectives
to stormwater flows should be carefully analyzed.
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New categories should be created (e.g., flood control
and effluent channels) to reflect actual and intended
uses.
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Use designations should reflect seasonal variability and
level of use.
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Inappropriate MUN, REC and other designations should
be corrected.