Existing law, the Porter-Cologne Water Quality Control Act, requires each California regional water quality control board to adopt water quality control plans and to establish water quality objectives in those plans, considering certain factors, to ensure the reasonable protection of beneficial uses and the prevention of nuisance.

This bill would require a regional board preparing a water quality control plan for a region having a population in excess of 10 million residents to additionally consider opportunities to convey stormwater to a regional site within the watershed in which the stormwater originated for capture and infiltration and to consider and balance the opportunity for stormwater capture when determining past and probable future beneficial uses of water, as specified.

This bill would make legislative findings and declarations as to the necessity of a special statute for the Los Angeles region.

Existing law, the Stormwater Resource Planning Act, authorizes one or more public agencies to develop a stormwater resource plan that meets certain standards.

This bill would state the intent of the Legislature to enact legislation relating to stormwater runoff in California.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 633 (Portantino) - Water quality objectives: stormwater

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 633 requires the State Water Resources Control Board (SWRCB) to consider opportunities to convey stormwater to a regional site within the watershed in which the stormwater originated for capture and infiltration for the purpose of improving water quality and enhancing local water supply in multiobjective projects in addition to the current factors considered when establishing water quality objectives.

Fiscal Impact:

Approximately $4.05 million to $5.3 million (Waste Discharge Permit Fund) to the SWRCB.

Background:

Existing law. Several state and federal statutes, regulations, and policies regulate various aspects of water. Those relevant to this bill are discussed below:

• The federal Clean Water Act (CWA) prohibits the discharge of any pollutant from a point source (discrete conveyances such as pipes) into navigable waters, without a permit. The National Pollutant Discharge Elimination System (NPDES) permit program (program) controls discharges, and authorizes states to implement and enforce the program as long as the state’s provisions are as stringent as the federal requirements. In California, the SWRCB is responsible for the program.
• The Porter-Cologne Water Quality Control Act (Porter-Cologne) establishes the SWRCB and regional boards to protect California’s water resources and drinking water to protect the environment, public health, and all beneficial uses, and to ensure proper water resource allocation and efficient use.

Municipal Stormwater. Municipal stormwater systems discharge both waste and pollutants. State law controls waste discharges impacting water; federal law regulates discharges of pollutants. Both require a permit to operate such systems. Municipal separate stormwater systems (sometimes called MS4) are owned or operated by a public agency with jurisdiction over waste disposal and designed or used for collecting or conveying stormwater.

Proposed Law: This bill:

Requires the SWRCB to consider opportunities to convey stormwater to a regional site within the watershed in which the stormwater originated for capture and infiltration for the purpose of improving water quality and enhancing local water supply in multiobjective projects in addition to the current factors considered when establishing water quality objectives.

Requires a regional board to consider the opportunity to cost effectively enhance local water supply through stormwater capture when determining past and probable future beneficial uses of water. For the purposes of this section, a regional board may consider all tools available to the regional board.

States that the bill only applies to a water quality control plan prepared for a region having a population in excess of 10 million residents.

Makes findings and declarations regarding the necessity of a special status.

Related Legislation:

SB 541 (Allen, 2017) requires the State Department of Education, SWRCB, and the Division of the State Architect and the Office of Public School Construction within the Department of General Services, to consult and recommend best design practices that include water capture design standards for all new, reconstructed, or altered public schools, including school grounds. This bill is pending hearing in Senate Appropriations Committee.

SB 589 (Hernandez, 2017) requires SWRCB to develop financial capability assessment guidelines for compliance with local government stormwater permit (MS4) requirements and requires a pilot project be conducted to test these guidelines on a permit. This bill is pending hearing in Senate Appropriations Committee.

Staff Comments:

1. Fiscal impact. According to the SWRCB, “due to the vague and ambiguous nature of the bill, the fiscal impact is unknown. For the purposes of this analysis, we assume that the bill’s impact will be limited to a focused effort in only three geographic areas (the upper Los Angeles River, upper San Gabriel River, and Rio Hondo River watersheds) and on only four key pollutants of concern (copper, zinc, lead and bacterial indicators).  A broader effort that considered all the region’s waters and all water quality objectives would require significantly more resources than described below.

The passage of this bill would trigger two distinct activities to determine whether beneficial uses can be changed and water quality objectives relaxed:

• Use Attainability Analyses (UAAs) would determine whether beneficial uses for specific waterbodies can be modified. Re-evaluating the 8 - 10 beneficial uses assigned to each of the waterbodies in those three areas identified above would require a minimum of two full time staff members for three years.
• Depending on the results of the UAAs, re-evaluation of water quality objectives related to pollutants of concern in stormwater for the three areas identified above would require between 3 and 6 full time staff members for three years.

Additionally, the Los Angeles Water Board would require contract funds to secure technical consulting and monitoring and laboratory services for three years. After the third year, the Los Angeles Water Board would experience minor and absorbable costs for monitoring and follow up activities.

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SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2017 - 2018 Regular

Bill No: SB 633

SUBJECT: Water quality objectives: stormwater.

ANALYSIS:

Existing law: Existing federal law under the Clean Water Act (CWA):

1. Establishes the structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.
2. Makes it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained.
3. Provides that the National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. (Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.)
4. Authorizes states to implement and enforce the NPDES permit program as long as the state’s provisions are as stringent as the federal requirements.
   1. In California, the State Water Resources Control Board (SWRCB) is the delegate agency responsible for the NPDES permit program.

Existing state law, under the Porter-Cologne Water Quality Control Act (Porter-Cologne):

1. Establishes the SWRCB and regional water quality control boards (regional boards) to preserve, enhance, and restore the quality of California’s water resources and drinking water for the protection of the environment, public health, and all beneficial uses, and to ensure proper water resource allocation and efficient use, for the benefit of present and future generations.
2. Requires SWRCB formulate and adopt state policy for water quality control and each regional board formulate and adopt water quality control plans (aka basin plans) for all areas within the region that ensure the reasonable protection of beneficial uses and the prevention of nuisance as specified.

This bill: Requires a regional board preparing a water quality control plan for a region having a population in excess of 10 million residents to additionally consider opportunities to convey stormwater to a regional site within the watershed in which the stormwater originated for capture and infiltration and to consider and balance the opportunity for stormwater capture when determining past and probable future beneficial uses of water, as specified.

Background

Municipal Stormwater. Municipal stormwater systems discharge both waste and pollutants. State law controls waste discharges impacting water. Federal law regulates discharges of pollutant[s]. Both state and later-enacted federal law require a permit to operate such systems.

The systems at issue here are municipal separate stormwater systems, sometimes referred to by the acronym MS4. A municipal separate storm sewer is a system owned or operated by a public agency with jurisdiction over disposal of waste and designed or used for collecting or conveying stormwater.

California’s Porter-Cologne, enacted in 1969, established SWRCB, along with nine regional water quality control boards, and gave those agencies primary responsibility for the coordination and control of water quality. SWRCB establishes statewide policy. The regional boards formulate and adopt water quality control plans and issue permits governing the discharge of waste.

Porter-Cologne requires any person discharging, or proposing to discharge, waste that could affect the quality of state waters to file a report with the appropriate regional board. The regional board then prescribes requirements as to the nature of the discharge, implementing any applicable water quality control plans. The Operators must follow all requirements set by the regional board.

CWA was enacted in 1972, and also established a permitting system. CWA is a comprehensive water quality statute designed to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. CWA prohibits pollutant discharges unless they comply with: (1) a permit; (2) established effluent limitations or standards; or (3) established national standards of performance.

CWA allows any state to adopt and enforce its own water quality standards and limitations, so long as those standards and limitations are not less stringent than those in effect under CWA.

CWA created NPDES, authorizing US EPA to issue a permit for any pollutant discharge that will satisfy all requirements established by CWA or the US EPA Administrator. The federal system notwithstanding, a state may administer its own permitting system if authorized by the US EPA. If the US EPA concludes a state has adequate authority to administer its proposed program, it must grant approval and suspend its own issuance of permits.

For a state to acquire permitting authority, the governor must give US EPA a description of the program proposed to be established and the attorney general must affirm that the laws of the state provide adequate authority to carry out the described program.

US EPA may withdraw approval of a state’s program and also retains some supervisory authority: States must inform US EPA of all permit applications received and of any action related to the consideration of a submitted application. California was the first state authorized to issue its own pollutant discharge permits. Shortly after the CWA’s enactment, the Legislature amended Porter-Cologne, to authorize state issuance of permits, specifying that state and regional boards issue waste discharge requirements ensuring compliance with all applicable provisions of CWA together with any more stringent effluent standards or limitations necessary to implement water quality control plans, or for the protection of beneficial uses, or to prevent nuisance. To align the state and federal permitting systems, the legislation provided that the term “waste discharge requirements” under the Act was equivalent to the term “permits” under the CWA. Accordingly, California’s permitting system now regulates discharges under both state and federal law.

In 1987, Congress amended the CWA to clarify that a permit is required for any discharge from a municipal storm sewer system serving a population of 100,000 or more. Under those amendments, a permit may be issued either on a system- or jurisdiction-wide basis, must effectively prohibit non-stormwater discharges into the storm sewers, and must require controls to reduce the discharge of pollutants to the maximum extent practicable. The phrase “maximum extent practicable” is not further defined.

US EPA regulations specify the information to be included in a permit application. Among other things, an applicant must set out a proposed management program that includes management practices; control techniques; and system, design, and engineering methods to reduce the discharge of pollutants to the maximum extent practicable. The permit-issuing agency has discretion to determine which practices, whether or not proposed by the applicant, will be imposed as conditions.

Municipal Stormwater Permits. Stormwater is runoff from rain or snow melt that runs off surfaces such as rooftops, paved streets, highways or parking lots and can carry with it pollutants such as: oil, pesticides, herbicides, sediment, trash, bacteria and metals. The runoff can then drain directly into a local stream, lake or bay. Often, the runoff drains into storm drains which eventually drain untreated into a local waterbody.

Municipal or urban areas commonly include large impervious surfaces which contribute to an increase in runoff flow, velocity and volume. As a result streams are hydrologically impacted through streambed and channel scouring, instream sedimentation and loss of aquatic and riparian habitat. In addition to hydrological impacts, large impervious surfaces contribute to greater pollutant loading, resulting in turbid water, nutrient enrichment, bacterial contamination, and increased temperature and trash.

SWRCB and regional water quality control boards (regional boards) are responsible for regulating stormwater discharges under the federal Clean Water Act and the NPDES permit program. To maintain the beneficial uses of receiving waters, municipalities must operate municipal separate storm sewer systems in accordance with a permit issued by the water boards.

The Municipal Storm Water Permitting Program regulates storm water discharges from municipal separate storm sewer systems (MS4s).

Large and small municipal sewer system operators must comply with MS4 permits issued by the SWRCB or applicable regional board. MS4 permits regulate stormwater entering local municipal systems under the following two-phase system:

Under Phase I, which started in 1990, regional boards have NPDES General Permit stormwater permits for medium (serving between 100,000 and 250,000 people) and large (serving 250,000 people) municipalities. Most of these permits are issued to a group of co-permittees encompassing an entire metropolitan area. These permits are reissued as the permits expire. The Phase I MS4 permits require the discharger to develop and implement a Storm Water Management Plan/Program with the goal of reducing the discharge of pollutants to the maximum extent practicable (MEP). MEP is the performance standard specified in Section 402(p) of the Clean Water Act. The management programs specify what best management practices (BMPs) will be used to address certain program areas. The program areas include public education and outreach; illicit discharge detection and elimination; construction and post-construction; and good housekeeping for municipal operations. In general, medium and large municipalities are required to conduct monitoring.

On April 30, 2003 as part of Phase II, SWRCB issued a General Permit for the Discharge of Storm Water from Small MS4s to provide permit coverage for smaller municipalities (population less than 100,000), including non-traditional Small MS4s, which are facilities such as military bases, public campuses, prison and hospital complexes. The Phase II Small MS4 General Permit covers Phase II Permittees statewide. On February 5, 2013 the Phase II Small MS4 General Permit was adopted and became effective on July 1, 2013. They will expire on June 30, 2018.

While early regulatory efforts focused on controlling pollutants and implementing best management practices, current regulatory decisions also emphasize holistic strategies that will result in multiple community benefits while concurrently managing pollution. With the focus on stormwater as a resource, newer low impact development and green infrastructure techniques are now capitalizing on opportunities to capture stormwater runoff and use it for local landscape and agricultural irrigation, and groundwater recharge, with further description as follows. Well-conceived stormwater management actions provide multiple benefits for California communities, including improved water quality, increased water supply, increased space for public recreation, increased tree canopy, enhanced stream and riparian habitat area, as well as many other benefits.

Why Is Stormwater Pollution A Problem? Stormwater pollution is a major environmental and public health issue. It leads to unsanitary living environments, unhealthy surface waters, such as lakes, creeks and rivers, unhealthy ocean and beach conditions, and street and neighborhood flooding during the rainy season. It’s created when trash, cigarette butts, animal waste, pesticides, motor oil and other contaminants left on the ground are washed or thrown directly into storm drains. This toxic soup mixes with millions of gallons of rainwater and flows untreated into local creeks, rivers and the ocean - polluting our waterways, as well as degrading neighborhoods and other natural resources.

As an example, according to a factsheet posted by SWRCB in 2009:

With nearly 10 million people living in Los Angeles County, each resident’s contribution to stormwater pollution adds up quickly to create a serious public health situation. In a 1997 study conducted by Pelegrin Research Group, an estimate of the number of times per month that Los Angeles County residents engage in polluting activities was established, known as pollution volumetrics. According to an updated 2001 study, it is conservatively estimated that each month in LA County, residents contribute to stormwater pollution by:

• Dropping cigarette butts on the ground nearly 915,000 times
• Dropping litter on the ground or out a car window more than 830,000 times
• Allowing paper or trash to blow into the street more than 800,000 times
• Throwing something in the gutter or down a storm drain nearly 280,000 times
• Emptying a car ashtray into the street more than 40,000 times
• Hosing leaves or dirt off a driveway or sidewalk into the street nearly 420,000 times
• Washing off paint brushes under an outdoor faucet more than 130,000 times
• Spraying the garden or lawn with pesticide more than 210,000 times
• Walking a dog without picking up the droppings more than 82,000 times

Also, in Los Angeles County, approximately 100 million gallons of contaminated water and debris drain through the storm drain system each dry day. That would fill the Rose Bowl 1.2 times. (On rainy days the daily flow can increase to 10 billion gallons per day).

Natural Resource Degradation. Stormwater pollution in Los Angeles County has significant impacts on the region’s water quality, while also posing risks to the health and safety of residents, degrading natural resources, threatening the area’s tourist driven economy and lowering property values in local neighborhoods. The impacts of stormwater pollution include:

Health Impacts. Stormwater pollution increases serious health risks to people swimming or fishing in the Santa Monica or San Pedro Bay, especially within 400 yards of storm drain outlets.

A study conducted by the Santa Monica Bay Restoration Project found that stormwater pollution in the ocean leads to increased risk of viral infections, earaches, sinus problems, fever, flu and skin rashes and viral diseases such as hepatitis for those swimming in the ocean close to storm drain outfalls, especially following a rainstorm when litter and contaminants are flushed into the storm drain system. The Governor’s Clean Beaches Initiative (CBI), funded by portions of four voter-approved bond measures, has already begun the cleanup effort statewide through construction of diversion and treatment facilities. The Erase the Waste campaign provides an educational link to the CBI, focused on Los Angeles County, and helps residents become part of the solution.

The Los Angeles County Department of Health Services recognizes the increased health danger associated with stormwater pollution and has a standing rain advisory that “recommends that beach users avoid contact with ocean water, especially near flowing storm drains, creeks and rivers for a period of 3 days after rainfall ends.”

Heal the Bay’s 2002-2003 Annual Beach Report Card on the health of Los Angeles County’s beaches gave 56% of monitored beaches a failing grade during wet weather, meaning the conditions were hazardous to human health and would have adverse health effects to swimmers who enter the water.

When bacteria levels exceed the State Standards, a warning sign is posted and swimmers are encouraged not to enter the water. Stormwater contaminants are one of the main causes of increased bacteria levels at our local beaches. During 2002, there were 269 warnings posted on Los Angeles County beaches for a total of 1,181 days where the ocean was too polluted for human use.

Research conducted by regional agencies, respected environmental nonprofit organizations and academic institutions have identified stormwater pollution and urban runoff as the leading sources of pollutants to Los Angeles County’s inland rivers, creeks, the ocean and beaches along the area’s coastline. The widespread critical issue has reached a level that has prompted local, state and federal policymakers and regulatory agencies to enact and enforce more stringent stormwater permit regulations, financial penalties and other compliance measures.

Economic Impact. Beach attendance has dropped by 56% since 1983. The recreation and tourism industry is one of the top employers in the nation, and is a particularly valuable part of the Los Angeles coastal economy. Each year, Americans take more than 1.8 billion trips to water destinations, largely for recreation, spending money and creating jobs in the process. Activities related to the county’s $2 billion annual tourism industry depend largely on the access and enjoyment of clean waters. If the perception of our beaches deteriorates, it poses broader implications for the region’s financial growth.

State Funding for Stormwater Projects. Over the last decade, the Legislature recognized that assistance to local governments to fund stormwater projects was warranted. The state has provided funding through grants to local governments through bond funding and other programs. Funds through loan programs would also have been available, but as most local government do not have designated fees for stormwater to repay loans, no loans have been made. Funds for stormwater projects received specific funds from bonds as follows:

• • 1. Proposition 40 - $15 million
    2. Proposition 84 - $90 million
    3. Proposition 1 - $200 million

Stormwater projects were also eligible funding under other programs:

• Prop 50 IRWM– SWRCB administered $250 million
• Clean Beaches Initiative (from Props 13, 40, 50 and 84) - $148 million
• Areas of Special Biological Significance program grants (from Prop. 84) - $35 million
• Santa Monica Bay Restoration (from Props 50 and 84) -  $38 million

Comments

1. Purpose of Bill. The author states that the 2012 National Pollutant Discharge Elimination System (NPDES) stormwater permits for Los Angeles county cities highly encourage stormwater capture and infiltration within cities as a means of limiting downstream pollution caused by dry weather and stormwater runoff. Such stormwater capture also enhances local water supplies. To comply with the permit, most cities must construct local projects, such as green streets and on-site infiltration, at much higher costs and less efficiency than regional projects that would take advantage of economies of scale.

The flood control system in Los Angeles County is an amalgamation of under-street storm drains, open channels, and river beds, both concrete lined and natural. Most segments of this system are regulated by water quality standards. Pollutants are measured at “receiving waters” and any exceedance of waterbody-pollutant standards constitutes a violation. For this reason, the Los Angeles Regional Water Quality Control Board has not allowed use of the existing flood control system to convey polluted stormwater to sites more economical and conducive to capture and infiltration, resulting in significantly higher per acre infiltration costs driven by the requirement to construct numerous upstream capture and infiltration sites at the local level.

According to the author, the Los Angeles County Department of Public Works has projected the cost of constructing the stormwater capture infrastructure at over $20 billion for the 88 cities in Los Angeles County, and that amount does not include ongoing operations and maintenance. The author feels that this enormous cost is attributed to the numerous small-scale local projects required under the permit. Los Angeles County cities (permittees) seek to use the existing flood control system to convey stormwater to centralized sites that capture and infiltrate stormwater on a far more cost-effective basis.

The author argues that SB 633 would require the Regional Board to consider opportunities to convey stormwater to a regional site within the watershed in which the stormwater is captured for the purpose of improving water quality and enhancing local water supply. The board must consider and balance the opportunity to cost-effectively enhance local water supply through stormwater capture when determining past and probable future beneficial uses of water.

1. The bill presents several conflicts with both the federal and the state water quality laws (CWA and Porter-Cologne). The bill requires that the applicable regional board(s) “consider and balance” stormwater capture opportunities when setting determining past and probable future beneficial uses of water, and that they “may consider all tools available to the regional board”.  In cases where the stormwater conveyances were waters of the United States, CWA would not allow the relaxation of standards below what is necessary to protect beneficial uses or the de-designation of existing uses based solely on the need to convey and reuse stormwater.  Even where the conveyance structure was a water of the State but not a water of the U.S., it could convey pollutants to downstream waters of the U.S. where there was less than full capture of stormwater flows. Additionally, modifications to stormwater standards or beneficial use designations would also apply to any other discharges to the same water bodies.  This would result in an increase in pollution sources, beyond that from the stormwater conveyance itself. 

Therefore, the bill should be amended to explicitly state that the provisions of this bill shall be applied by the water board(s) consistent with both federal and state law as determined to be appropriate.

Additionally, it is not clear what the author means by “a regional board shall consider and balance the opportunity to cost-effectively enhance local water supply…” It appears that the author wants water boards to balance water quality objectives in water quality plans against the cost-effectiveness of achieving the objective through stormwater capture. While considering the benefits of the various mechanisms by which water quality objectives may be achieved is a part of the planning process, it is not appropriate for those mechanisms to be balanced against cost-effectiveness as that mechanism is meant to achieve a specified reduction of pollution /improvement in water quality. While consideration of additional factors may be appropriate, it is not appropriate for the factors to require a balancing against the cost-effectiveness of achieving the required water quality objective. Therefore, an amendment is needed to remove the word “balance”.

Related/Prior Legislation

SB 541 (Allen, 2017) requires the State Department of Education, SWRCB, and the Division of the State Architect and the Office of Public School Construction within the Department of General Services, to consult and recommend best design practices that include water capture design standards for all new, reconstructed, or altered public schools, including school grounds. SB 541 is set to be heard in the Senate Environmental Quality Committee on April 19, 2017.

SB 589 (Hernandez, 2017) requires SWRCB to develop financial capability assessment guidelines for compliance with local government stormwater permit (MS4) requirements and requires a pilot project be conducted to test these guidelines on a permit. SB 589 is set to be heard in the Senate Environmental Quality Committee on April 19, 2017.

SOURCE:

San Gabriel Valley Council of Governments (SGVCOG)

SUPPORT:

None received

OPPOSITION:

None received

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