April XX, 2002
Mr. Gerard
Thibeault
Executive Director
California Regional Water Quality Control Board
Santa Ana Region
3737 Main Street, Suite 500
Riverside, California 92501-3339
Re: Triennial
Review of the Water Quality Control Plan for the Santa Ana River Basin Plan
Dear Mr.
Thibeault:
[Insert appropriate introductory sentence describing your
organization’s purpose and membership.] We are concerned about the process by which the
Santa Ana Regional Water Quality Control Board (“the Regional Board”)
undertakes the triennial review of the Basin Plan. The decisions the Regional Board makes and the steps it takes
over the next several years will define whether the subsequent regulatory
structure is effective and fair, or if it will fail to achieve meaningful
improvements in water quality while unfairly overburdening some segments of
society.
We
have reviewed the Regional Board’s Notice of Public Workshop for Triennial
Review of the Santa Ana River Basin Water Quality Control Plan and the related
2002 Triennial Review Description of Issues.
We wish to commend the Regional Board and its staff for including Item
No. 12 in the Description of Issues, which indicates you are planning to invest
significant resources into determining the overall cost impacts and specific
impacts on housing of your water quality regulations, and their appropriateness
for wet weather conditions. In recent
months, the Regional Board has heard serious concerns about the high cost and
inefficiency of the new MS4 permits that are currently being processed by the
Regional Board, so you and the board’s members understand how important it is
to base new water quality requirements on a sound understanding of their
potential effectiveness in improving water quality, their cost, and their fair
application across economic and ethnic segments of society.
Concerns
about phasing of study – We
also note that the agency proposes to commit the vast majority of its Basin
Plan resources (32 out of 54.5 personnel years) to TMDL development and incorporation
of TMDLs into the Basin Plan. As a
result, the level of effort proposed for other key issues, such as review of
bacteriological standards and municipal drinking water standard designations,
is small compared with the emphasis on TMDLs, and is insufficient.
Worse,
the timing of the studies appears to be very wrong. No activities at all will be directed to Item 12 during the first
year of the triennial review; the work on that item does not peak until the
third year, and is not concluded until the last year. We do not understand this timing, since several major portions of
the study that should be based on the conclusions of the Item 12 study will
already be complete, or substantially complete, by the time the findings are
known. These findings must not be an
afterthought done simply to comply with Section 13241 of the Water Code;
rather, they should be the baseline for the entire triennial review. Otherwise, the Regional Board has little
hope of avoiding ineffective and costly “solutions” to “problems” that are
overstated or may not exist. The law
provides latitude in how TMDLs are imposed, and the Regional Board should use
the findings of the studies undertaken under Item 12 to clear up any questions before
completing other aspects of the plan that will impose costs on cities and
counties.
Concerns
about inclusion of additional “water bodies” and designated uses – The work plan before the Regional Board
includes many tasks relating to adding water bodies to the 303(d) list of
impaired waters and assigning beneficial uses to them. This raises several concerns.
The
appropriateness of any designation at all on many, if not all, of the water
bodies mentioned in Item 11 is questionable.
We are concerned that the Regional Board’s TMDL program will be
compromised if it attempts to apply standards intended for creeks, rivers, bays
and beaches to storm drains and small creeks that are not available for
swimming and non-contact recreation (REC 1 and REC 2) and are inappropriate for
municipal drinking water (MUN) designations.
The relatively small number of water bodies mentioned in Item 11 are
significant because they will establish the precedent for how the Regional
Board handles hundreds of water bodies.
It
is neither wise public policy nor a proper allocation of the public resources
of cities and counties throughout the basin to require MUN, REC 1 or REC 2
standards of open storm drains or bodies of water such as ephemeral creeks or
creeks supported primarily by reclaimed water or irrigation return flows. Clearly, the Regional Board must vigilantly
protect water that is currently used in this matter, or may be so used in the
future. But to arbitrarily extend the
MUN, REC 1 and REC 2 designations practically everywhere, including the point
of entry to the storm drain, will undermine public support for the agency’s
important programs.
In
fact, the Water Code clearly states at section 13241 that factors to be
considered in establishing water quality objectives “shall include, but not
necessarily be limited to … [p]ast, present, and probable future … uses.” In light of this definition, one must
question a MUN, REC 1 or REC 2 beneficial use designation for the Delhi Channel
in Santa Ana, which is concrete lined, separated from the public by tall chain
link fences, and, in fact, illegal to swim in.
The Regional Board’s credibility will be seriously questioned if it
begins to tell the public, in effect, that it wishes to see public funds
expended so one day there can be beach cabanas by the Delhi Channel. We anticipate that your staff will argue
that such designations are needed because the Delhi Channel flows into a
MUN or REC 1 water body, in a false interpretation of the Tributary Rule. The Tributary Rule was designed for natural
water bodies like lakes, bays and rivers, not storm drains or ephemeral
streams, and its application here is clearly inappropriate. The water exiting from the Delhi Channel
perhaps should be treated before it reaches Upper Newport Bay, but the
appropriate place to do that is the point where it flows out of the storm drain
system, and before it flows into a natural water body.
When
the Regional Board and its staff consider inclusion of the Delhi Channel on the
list of impaired waters and assigning a beneficial use to it, it should
carefully weigh the significant environmental justice issues involved. The Delhi Channel drains some of the poorest
neighborhoods in Orange County. There
is no health or environmental justification for cleaning the channel to MUN,
REC 1 or REC 2 standards throughout its reach, yet these neighborhoods will
carry nearly the entire burden imposed.
Where will the funds come from to clean this off-limits storm
drain? Which already too thin budgets
do you propose to cut? Again, an action
like this will harm the Regional Board’s credibility with the public, and the
ramifications of the action should be carefully considered.
The
Regional Board should also exercise caution when imposing REC 2 standards. A peer-reviewed study of Mission Bay, San
Diego, determined there is no significant difference in bacteria levels in
runoff from developed and undeveloped land.
Monitoring in the upper reaches of San Juan Creek in Orange County has
revealed a similar finding. Together,
the studies show that open, natural land often will not meet REC 2
standards. Is society to pay for
cleaning up water bodies that are apparently clean enough for the natural
environment?
Concerns
about the attainability of objectives
– The Water Code requires the agency to include in the Basin Plan a
“description of the actions necessary to achieve the [agency’s water quality]
objectives, including recommendations for appropriate action by any entity,
public or private.” Cal. Water Code §
13242. How will the agency bring
about drinking water quality and recreational opportunities in the Delhi
Channel? How will the San Diego Creek
meet bacteria standards given the birds and other wildlife present in the wide
riparian corridor of the Creek? How
will the agency bring swimming to creeks that run inches deep in dry weather
and in a roiling, dangerous torrent during storms? These are implementation questions to consider— and answer. There are many others.
There
does not appear to be any task in the priority list to develop the “program of
implementation” required by the Code.
It is through such a program that the agency complies with its due
process obligations by putting the public on notice of what will be required of
the public and private sectors to meet the agency’s objectives, and by giving
the public the opportunity to comment on the agency’s plan. The agency should add a task to its Priority
List for development of a program to implement its objectives.
Summary
and recommendations – In
summary, because the TMDL program is benchmarked to the agency’s water quality
standards, the Regional Board’s principal goal for the triennial review ought
to be a plenary review and revision of its water quality standards for
bacteria, for the MUN and REC designations, and under the Water Code factors including
housing and economics. The water
quality standards must be implementable, and must be accompanied by a “program
of implementation.” Once the standards
are brought into better conformance to reasonable and attainable water quality
priorities, the TMDL program will have an excellent foundation.
In
light of the above, we respectfully request the agency to make some minor
adjustments to its Priority List as follows:
·
Task 4 — Increase the level-of-effort to 4 person-years
(PY), complete the task in the first two years of the review, and use this task
to conduct a plenary review of bacteriological standards and their application
and relevance to storm water not impacted by sewage.
·
Task 12 — Complete Task 12 in the first two years of the
review. Increase the level-of-effort to
10 PY.
·
Task 14 — Increase the level-of-effort to 2 PY,
complete the task in the first two years of the review, and use this task to
review the agency’s policy of designating as a water supply (i.e., the “MUN”
designation), water bodies and storm drains for which use as a water supply is
wholly improbable.
·
Task 11— Reserve consideration of water quality
standards for storm drains and coastal creeks until Task 12 has been completed.
·
New Task — Commit 4 PY to develop a program to implement
water quality standards, including the identification of specific actions the
agency believes are necessary to achieve its objectives during both wet and dry
weather, and taking into account the physical and institutional constraints
associated with the region’s water.
Thank
you for considering our concerns and suggestions.
Sincerely,
[name/title]
cc: Gov. Gray Davis
Mr. Arthur G. Baggett, Jr.,
State Water Resources Control Board