Executive Briefing on Basin Plan Litigation

1. Executive Briefing on Basin Plan Litigation • Overview of Issues • Review of Basin Plan study • Recommendations September 2008

2. Why are we here? • Basin Plan standards are outdated and scientifically flawed.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.

3. Basin Plan Report Summary • 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 • BIA • Building & Construction Trades Council • Contractors associations • Gateway Cities COG • Gateway Chambers Alliance • CPR • Cities • LA County DPW • LACSD • CICWQ • LA Chamber of Commerce

4. 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.

5. 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.”

6. 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.”

7. P-C Section 13241 • 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

8. P-C Section 13242 • 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

9. 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)?

10. 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.

11. Findings A.Failure To Consider Statutory Factors-Example (1) •The 1975 Basin Plan detailed the costs for wastewater and industrial treatment plant upgrades. •Storm watercompliance costs were never considered because the standards were explicitly never intended to applyto 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.

12. Findings A.Failure To Consider Statutory Factors-Example (2) • 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.

13. Findings B.Inadequate Water Quality Objectives-Example (1) • Sea and fresh water bacterial standards ignore natural sources (e.g., wildlife) and seasonality (wet v. dry). • Runoff from pristine, undeveloped areas can and often does exceed Basin Plan objectives. • No assessment of the costs of complying with Plan bacterial objectives as they are applied to stormwater has been performed.

14. Findings B.Misapplied Water Quality Objectives-Example (2) • 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) • 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.

15. 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”

16. Findings C.Unreasonable Beneficial Use Designations-Example (1) •All area surface waters, including effluent channels, were designated for “drinking water” (MUN) uses. Concrete-lined channels carrying wastewater and urban runoff ... ... are regulated like mountain streams. • The reasonableness, costs and other impacts of MUN designations have never been adequately considered.

17. 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.

18. How does this affect regulated community? • 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

19. How does this affect regulated community? • 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

20. How does this affect regulated community? • 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

21. How does this affect regulated community? • 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

22. Recommendations • Existing and future Basin Plan water quality objectives must explicitly consider reasonableness, cost and all required factors. • Reasonableness, cost and all required factors should be considered prior to setting NPDES or TMDL requirements. • If costs or other impacts are significant, a detailed rationale is required under State Board guidelines. • Current water quality objectives affected by natural conditions should be reassessed to identify reasonable regulatory goals.

23. Recommendations • The reasonableness of applying point-source objectives to stormwater flows should be carefully analyzed. • New categories should be created (e.g., flood control and effluent channels) to reflect actual and intended uses. • Use designations should reflect seasonal variability and level of use. • Inappropriate MUN, REC and other designations should be corrected.