Dragon Tails

1. Or, how we learned to stop worrying about permit compliance and love SUSMPs [a fairy tale?] Greg Gearheart, PE Stormwater Program / SWRCB Dragon Tails

2. The Tail End • Our mission is to preserve and enhance the quality of CA’s water resources, and ensure their proper allocation and efficient use for the benefit of present and future generations. • Who are the present and future generations?

3. Millions of Californians • 1980 – 23.7 million • 2005 – 37 million • 2030 – 48 million (projected) • where?

4. What are some examples of water resources we should protect? • Wetlands and streams, including: • Riparian areas • Intermittent, ephemeral and headwater streams • Isolated “wetlands” (e.g., vernal pools) • Watershed functions and values • Protect from what?

5. Paradise Lost – why are they special? • California has lost 95% of our inland wetlands and streams since 1850's due to “development” • They are a critical part of the watershed: • support BUs onsite • maintain the "quality of the water" of watershed • provide critical watershed functions like generating/moving/storing sediment, removing pollutants, retaining flood flows, and supporting habitat connectivity

6. Why do they need special protection? • Highly sensitive ecosystems • Most threatened by landscape activities (urbanitis, development, industry, etc.) • It is much more difficult to regulate landscape activities than it is to control point discharges • It is very difficult to restore them once they are gone

7. What human activities impact wetlands and streams? • Bank hardening (rip rap, concrete, refrigerators, cars, etc.) • Dams and diversions • Development (stream/swale burial, realignment, concrete-lining, etc.) • “Agricultural” activities (vineyard development, dairy waste, cattle, stream crossings, clear-cut erosion, etc.)

9. CWA 401 regulatory actions at Water Boards for 2003 • 1094 401-related Projects Statewide • 26 projects denied certification • 12 project-related enforcement actions • 1880 acres of fill to State waters (includes 1280 acres temp. fill) • 600 acres of permanently filled wetlands/streams/etc. • 1082 acres of compensatory mitigation

10. Water Boards nuts and bolts • Our regulatory actions (e.g., CWA401 Certs, WDRs, enforcement, etc.) require discharges to be protective of our water quality (WQ) standards: • Water quality standard = beneficial uses + objectives • Water Boards may “choose to prevent any degradation” • Statewide General WDRs • for dredge/fill and linear projects

11. CWA - Water Quality Standards • Water Quality Standards are made up of: • Beneficial Uses (designated to specific waterbodies), plus • water quality criteria; and • an antidegradation policy. • Beneficial Uses (BUs) are: • often not directly related to some key water resource uses valued by communities (it might take a suite of them to protect wetlands and streams, for example)

12. REC-1 – Water Contact Recreation REC-2 – Non-Water Contact Recreation SHELL – Shellfish Harvesting SPAWN – Fish Spawning WARM – Warm Freshwater Habitat WILD – Wildlife Habitat WQE – Water Quality Enhancement Beneficial Uses Used to Protect California Wetlands & Streams • AGR – Agricultural Supply • FLD – Flood Peak Attenuation/Flood Water Storage • FRSH – Freshwater Replenishment • GWR – Groundwater Recharge • MAR – Marine Habitat • MUN – Municipal and Domestic Supply • RARE – Preservation of Rare and Endangered Species

13. Beneficial uses (BUs) and wetlands / streams • BUs are: • designated in the Basin Plans to a specific waterbody at a specific location • are not easily translated to some key wetland/stream functions and values • frequently it takes a suite of BUs to cover “wetland functions and values” (often includes gaps and overlaps)

14. Functional Framework:Regulatory Tools • Landscape / watershed tool(s): • Storm water permits • CEQA ? • Waterbody tool(s): • CWA 401 Certifications • Waste Discharge Requirements • Waivers • Laparoscopic techniques

15. CWA – Permits • Section 402 – Point Sources • The National Pollutant Discharge Elimination System (NPDES) – applies to all point sources of pollutants • Stormwater outfalls are considered “point sources” and these regulations apply to: • Industrial Sources (including Construction Activities) • Municipal Sources (large and small communities)

16. CWS - NPDES Permits (cont.) • Traditional “Point Sources” still need attention in sustainable growth context: • Wastewater Treatment Plants • Collection Systems • Factories and mills • E.g., the City of Petaluma building a new sustainable system to handle both domestic wastewater and stormwater

17. CWA – Dredge and Fill Discharges • Section 404/401 – regulate the direct discharges of dredge and fill material to US Waters • US Army Corps issues 404 permit, which triggers the State's “401 Certification” (that the project complies with our standards) • “401 Certifications” are one-time compliance tools that apply to many new developments in California, due in part to our abundance of ephemeral and intermittent streams • CWC jurisdiction covers isolated waters of the State

18. 401 Certification - One-time compliance measurement • CWA 401 certification process give the Water Boards one shot at evaluating compliance with our “standards” • If we get our permitting wrong, the waterbodies and their designated beneficial uses could be lost forever • Could be a de-facto Basin Plan amendment • Interesting question: does this process adequately comply with our Basin Plan amendment requirements?

19. CWA – Total Maximum Daily Loads (TMDLs) • If the beneficial uses are impaired, the State must adopt a TMDL • Result in pollutant Waste Loads Allocations – WLAs – applied to “all” sources in watershed • TMDLs take decades to implement

20. CWA – TMDLs • They are watershed-based, but they are also pollutant (or impairment cause) specific, so they may or may not lead communities towards more sustainable approaches to Water Resource planning • Resulting WLAs are implemented via permits

21. Sustainability and Water Resources • Sustainability has many definitions and applications (some very specialized) • In our communities there are three main test / elements (each of which is undergoing a paradigm shift today).

22. Sustainability Tests • Resource – protection to enhancement and reuse (“runoff is a resource”) • Technical – complex, technological standard-based to simple, natural, performance-based solutions • Institutional – centralized, subsidized approaches to decentralized, self-supporting approaches • Community – healthy individual, societal cost driven equations to healthy community, community opportunity equations

23. NPDES Stormwater Permits – help or hindrance? • Municipal Separate Storm Sewer Systems (MS4s), in both large and small communities, are required to comply with MS4 requirements • Much of the permit requirements focus on traditional BMPs and general, indirect municipal efforts (like general planning, outreach/education etc.) • In 2002, Standard Urban Storm Water Mitigation Plans (SUSMPs – but they are called “performance standards” in some parts of the State) became mandatory for all MS4 permits

24. SUSMPs & HMMPs & Performance Standards, oh my! • SUSMPs - Standardized Urban Stormwater Mitigation Plans • HMMPs - Hydrograph Modification Management Plans • WQMPs • Performance Standards – specifically for new and redevelop activities in MS4s

25. SUSMP History (brief) • 1996 - NPDES Permit for LA County MS4s first suggested SUSMPs (R4-1996-054) • 1999 - NPDES Permit for LA County Required “improved” SUSMPs (R4-1999-060) • 2000 - SB upheld RB4-99-060 with WQ-2000-11 • Precedent - all new MS4 permits after WQ-2000-11 must comply with general principles of R4-1999-060 SUSMP lang.

26. SUSMPs and Sustainability • SUSMPs and other “performance standards” in MS4 permits require new developments and, in some cases, “significant” redevelopments to apply rigorous measures to mitigate the effects of urbanization. • The technical approaches and science behind some of the issues are still being debated in the State. • Q: Does Low Impact Development = SUSMPs and HMP compliance?

27. Yes, LID = SUSMPs • In theory, a well designed and executed LID project would fully comply with MS4 permit requirements (and probably avoid 404/401 permits, too). • Translators are needed to help communities demonstrate compliance with MS4 requirements

28. LID and SUSMPs (cont.) • Clearly SUSMP=LID works best for new development and significant redevelopment • But strategic LID projects could also be used to retrofit urban landscapes to address other watershed problems • State Board staff are working on developing translator tools for municipal officials who must comply with SUSMPs and wish to use LID-like approaches

30. SUSMPs in the Regions • As expected, most RBs took the liberty to “improve” on the SUSMP language in R4-1999-060 • Some RBs have evolved at least one generation since the original SUSMP approach

31. Los Angeles Region • SUSMP Architects • Multiple generations – new draft coming for Ventura County in June 2006: • Numerical Hydromodification Criteria based on Stream Bank Erosion Potential • Limiting Directly Connected Impervious Area to no more than 5 pecent of Total Construction Project Area

32. LA Region (cont.) • Ventura updates (cont.) • Low Impact Development Technical Document to comply with SUSMPs and Hydromod Criteria • Post Construction BMP Inspection Program • Stream Bank Restoration Planning based on Southern CA Integrated Biological Index

33. S.F. Bay Region:One Permit Approach • Phase I for 4 urbanized counties • Consistent requirements • Consistent deadlines (with a few exceptions) • Detail formerly in Stormwater Management Plans now in the Permit

34. SF Bay Super Permit (cont.) • BMPs, Level of Implementation and Reporting specified for all Performance Standards • Major improvements in Monitoring and TMDL implementation • Only minor changes to New Development Measures, Inspections, Public Information and Municipal Maintenance

35. San Diego Region:Watershed Approach • Tackle priority stormwater problems in each watershed, in addition to Baseline BMPs • Adding HMP requirements similar to S.F. Bay Area approach • Setting minimum inspection # requirement

36. Other Regions &Approaches within CA • Santa Ana Region – like RB4 • Lahontan Region – no SUSMP requirements • North Coast Region – like RB2 (2 year, 24 hour storm event, hydrograph modification management plan, etc.) • Central Coast Region – not sure • Phase II • Caltrans

37. Other States • MD – Recharge / LID credits • PA – Recharge • DE – Recharge / LID • NJ – Recharge / LID • [Handout available]

38. Sustainable Projects Present Real Community Opportunities • If done right, more sustainable projects will deliver: • NPDES compliance • Clean Water Act promises • Low Lifetime Costs to operate, maintain, decommission, etc. • Community buy-in and support through meeting multiple objectives, etc. • Unpredictable community economic opportunities (e.g., tourism and other ancillary benefits to the community)

39. Evidence of Shift • Performance measures that would SHOW we are moving in the right direction. • NPDES permits for MS4s contain LID-type requirements for New Development • Increased judicial support

40. Shift (cont.) • Planning departments and land use agencies are excited about natural systems (we see this now) • Natural Systems (low tech, natural function-based technologies) are embraced as cornerstones of “sustainable development” • A number of disciplines integrated into stormwater management.

41. What can WE do to help implement / enforce the CWA? • Appropriate designation, development and enforcement of appropriate Beneficial Uses would encourage smarter growth. • We also need to develop effective criteria for protecting uses from pollutants and/or habitat disturbance associated with urbanization impacts. • Apply all our tools to encourage avoidance and minimization of impacts through better siting and management practices. • Get out of the way of good practices

42. Greg Gearheart 916-341-5892 ggearheart@waterboards.ca.gov