Cleaning Up California s Polluted Waters

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1 Cleaning Up California s Polluted Waters An Action Plan to Improve the TMDL Process A Project of Clean Water Fund December 2013

2 Clean Water Fund respectfully acknowledges the contribution of the TMDL working group that we convened to assist in the development of this report and these recommendations. While there was not consensus on all issues or recommendations, each participant provided valuable insight and perspective that lead to a thoughtful dialogue. The panel members, whose experience and expertise with respect to TMDLs contributed to the substance of this report, include: Dan Cloak, Dan Cloak Environmental Consulting Kirsten James, Heal the Bay Trish Mulvey, Friends of the River Staff of San Francisco Baykeeper Sherri Norris, California Indian Environmental Alliance Linda Sheehan, Earth Law Center Fraser Shilling, University of California, Davis Leah Wills, Environmental Justice Coalition for Water This report was developed by: Andria Ventura, Program Manager and Miriam Gordon, California Director Clean Water Action and Clean Water Fund. Clean Water Fund wishes to thank the Rose Foundation for Communities and the Environment for the generous support that made this project possible. We are particularly grateful to Tim Little, the Foundation s Executive Director, for his support of Clean Water Fund s TMDL work over the years. We are also grateful to the California Wellness Foundation and the Marisla Foundation who also provided support for this work.

3 Table of Contents Executive Summary... 1 I. Introduction: A Broken System... 6 Cleaning Up Contaminated Waterways Using Total Maximum Daily Loads (TMDLs)... 6 California s TMDL Process... 6 A History of Failure... 7 A Significant Problem...11 Background and Methodology...12 II. Fundamental Problems with TMDL Processes and Recommendations for Improvement...13 Issue 1: Single Contaminant Approach...13 RECOMMENDATION 1(a) Develop a process to employ a broader systemic approach RECOMMENDATION 1(b) Revise Good Samaritan laws RECOMMENDATION 1(c) Identify situations where tertiary wastewater treatment would be appropriate Issue 2: Stakeholder Processes Fail to Facilitate Meaningful Public Participation...17 RECOMMENDATION 2(a) Develop public participation policy to promote broader input RECOMMENDATION 2(b) Institutionalize the role of local watershed groups and tribal environmental departments Issue 3: Inappropriate Factors in Decision Making RECOMMENDATION 3(a) Develop a policy that TMDLs prioritize public and environmental health RECOMMENDATION 3(b) Ensure proper prioritization and timely action for 303(d) listed waters Issue 4: Undue Influence of Dischargers on water boards RECOMMENDATION 4(a) Reform membership of water boards and create more public input RECOMMENDATION 4(b) Create state guidance for decision-making by Regional Board staff Issue 5: TMDL Approval Process Lengthy and Inefficient RECOMMENDATION 5(a) Allow the State Board some discretion to revise a TMDL RECOMMENDATION 5(b) Allow Regional Boards to adopt a TMDL, subject to a petition for review

4 Table of Contents continued Issue 6 Lack of Focus on Implementation Strategies to Improve Water Quality RECOMMENDATION 6 Prioritize implementation during TMDL development Issue 7 Inadequate Goals and Actions to Revive or Maintain Water Quality RECOMMENDATION 7(a) Establish public task force to revise minimum standards for TMDLs RECOMMENDATION 7(b) Add new beneficial uses for subsistence fishing and tribal cultural uses to ensure that cleanup goals reflect real-world uses of California s waterways Issue 8 Limited Enforcement Tools for Non-Point Sources RECOMMENDATION 8 Create enforcement mechanism(s) for various sources of non-point pollution Issue 9 Inadequate Evaluation of TMDL Effectiveness RECOMMENDATION 9 Establish programs to evaluate effectiveness of remediation plans Issue 10 Failure to Address Emerging Contaminants RECOMMENDATION 10 Expand the water boards authority to act proactively on emerging contaminants Issue 11 Limited Resources to Improve TMDL and Other Remediation Processes RECOMMENDATION 11 Create discharger fee system or reimbursement program Conclusion Notes Appendix 1: Survey Questions Appendix 2: Tables... 41

5 Executive Summary California is home to some of the world s most beautiful and diverse aquatic ecosystems. The San Francisco Bay provides a backdrop of unparalleled aesthetic beauty and biologic diversity in an urban environment. Mono Lake presents an eerily unique landscape, while the bounteous waters of the San Joaquin Delta enrich the economy of the nation s third largest state. The tributaries flowing out of the Sierras have supported salmon runs and native cultures since time immemorial. The State s varied aqueous environment is a source of pride to many Californians. Yet these same waters hide a dark reality: severe pollution that threatens public health, the natural environment, and even the cultural heritage of the State s residents. Currently, more than 1,883 California waterbody/pollutant combinations violate the Federal Water Pollution Control Act s (Clean Water Act) established water quality standards. (See FWATRPO.html). These include mercury and dioxin compounds in San Francisco Bay, pesticides and organochlorine throughout the Central Valley, mercury in the tributaries flowing from historical mining districts, ammonia and copper in several Santa Ana region waterways, algae and sediment in the Klamath River, and a statewide trash problem. The California Office of Environmental Health Hazard Assessment has established human fish consumption guidelines for over 50 waterbodies to protect the public from contamination from mercury and PCBs. 1 The primary tool currently used to address severely polluted waterways is the Total Maximum Daily Load (TMDL). This is a framework for reducing pollutants in individual waterbodies to levels that will allow the water to be identified, designated for beneficial uses, such as human consumption, fishing, swimming, and as a habitat for wildlife. The State s Water Boards estimate that it will take over 400 TMDLs, developed over 13 years, to address California s polluted waters. The length of time to implement those plans will vary greatly, with some, such as a mercury cleanup plan for San Francisco Bay, expected to take over a century. This daunting prospect is further complicated by the fact that new water/pollutant combinations continue to be identified. New contaminants such as flame retardants, antibacterials, 1

6 and pharmaceutical products are also being detected and proven to be adversely affecting the quality of California s waters. In the 40 years since the Clean Water Act was established, none of California s polluted waters have been fully cleaned up to support the diverse needs of nature and humans. The established processes for cleaning up contaminated waterways or addressing pollution at the source are not working. Progress has been made in the regulation of specific contaminant sources. Waste and stormwater agencies, for instance, have ratcheted down on discharges of specific pollutants from specific sources. However, other pollutant discharges continue without regulation. Despite considerable efforts over the last decade, minimizing pollutants from non-point sources, such as runoff from polluted land sources, to a safe level is a particular challenge under current regulatory frameworks.* Despite the millions of dollars that have been spent on the development and implementation of TMDLs or other cleanup strategies, California is failing to clean up contaminated waterways adequately and there is tremendous uncertainty about whether many of the remediation plans that are in place will be effective. While some efforts relating to specific waterbodies have met with success, the State is not making headway on its water quality problems: many existing contamination problems are not being addressed even as problems with new contaminants are emerging. As California s water resources become more strained, it is time for a reevaluation of how the State addresses water quality. This * In addition to land runoff, U.S.EPA cites precipitation, atmospheric deposition, drainage, seepage, and hydrolic modification as non-point sources. See 2

7 report is not intended to provide a complete analysis of the problems associated with water quality regulation in California. Rather, it has a more specific focus. This call to action is a reaction to the remarkably consistent criticisms expressed by public interest advocates about processes to develop TMDLs and their implementation plans. TMDLs can vary in their clarity, their goals, and the aggressiveness of the load allocations and contaminant reduction requirements depending on who writes the implementation plan, the problem the TMDL addresses, and the particular Regional Water Quality Control Board (Regional Board) overseeing its development, implementation, and enforcement. Too often public interest groups are frustrated with the resultant plans, viewing weak cleanup requirements as a result of a process that favors dischargers and improperly undervalues the benefits of cleanup against the costs. Furthermore, the uncertainty as to the ultimate ability of TMDLs to return waterbodies to beneficial uses and the lack of accountability for their success results in a significant level of public distrust of the process. The primary goal of this report is to recommend changes to the TDML development process that promote a fundamental level of quality, regardless of the contaminant or the agency responsible for the waterbody. In addition, the report seeks to promote procedural changes to ensure that the most environmentally and health protective actions will be taken to address water impairments. It is based on a series of surveys, roundtable discussions, substantive written feedback, and dialogue with public interest veterans of TMDL processes who participated in a TMDL work group in The work group identified eleven fundamental issues related to poor outcomes in TMDLs. For each issue, one or more solutions were recommended. The issues and solutions recommended are summarized as follows: 1. The single contaminant per waterbody approach limits positive results. RECOMMENDATION 1(a) Develop a process at the state/regional level to identify other remediation models and to employ a broader systemic approach to address water quality impairments. RECOMMENDATION 1(b) Revise Good Samaritan laws to provide State and Regional Water Boards with (limited) protection from liability to allow them to better evaluate pollution sources and to take action that stops further water pollution. RECOMMENDATION 1(c) Identify situations where tertiary treatment by wastewater dischargers would be appropriate and cost effective by addressing multiple contaminants. 3

8 2. Stakeholder processes fail to facilitate meaningful public participation. RECOMMENDATION 2(a) Develop a public participation policy to promote broader input by groups and individuals working on behalf of the public interest, particularly impacted communities. RECOMMENDATION 2(b) Institutionalize the role of local watershed groups and tribal environmental departments who can collect data and provide local expertise about water and community impacts. 3. Decisions are overly based on inappropriate factors, such as cost, expedience, and consensus not water quality and community impacts. RECOMMENDATION 3(a) Develop a specific state policy that TMDLs and implementation plans prioritize public and environmental health. RECOMMENDATION 3(b) Ensure proper prioritization and timely action for 303(d) listed waters by Regional Boards. 4. Composition of water boards influences TMDLs and implementation plans. RECOMMENDATION 4(a) Reform water board membership to limit influence of the regulated community and promote greater public influence in actual decision-making. RECOMMENDATION 4(b) Create state guidance regarding how decisions are to be made by Regional Board staff when developing remediation requirements. 5. The approval process for TMDLs is lengthy and cumbersome. RECOMMENDATION 5(a) Allow the State Board some discretion to revise TMDLs. RECOMMENDATION 5(b) Allow Regional Boards to adopt a TMDL without State Board approval, subject to petitions for review from the public. 6. There is often inadequate focus on implementation strategies to improve water quality. RECOMMENDATION 6 Encourage early cleanup actions by beginning TMDL development with the crafting of pollution reduction plans. 7. TMDL goals and remediation actions are often inadequate to revive or maintain water quality in a timely manner RECOMMENDATION 7(a) Establish a public task force to revise minimum standards for TMDLs. RECOMMENDATION 7(b) Add new beneficial uses for subsistence fishing and tribal cultural uses to ensure that cleanup goals reflect real-world uses of California s waterways. 8. Enforcement tools for non-point sources are limited. RECOMMENDATION 8 Create enforcement mechanism(s) for various sources of non-point pollution. 4

9 9. Evaluation of TMDL effectiveness is limited or non-existent. RECOMMENDATION 9 Establish programs to evaluate the effectiveness of TMDLs or other remediation programs in achieving short- and long-term goals. 10. The water boards lack proactive programs to address emerging contaminants. RECOMMENDATION 10 Expand the water boards authority to ban products or limit the use of specific toxic substances in order to implement source control of emerging contaminants. 11. Limited resources impact TMDL development and evaluation, as well as pollution prevention. RECOMMENDATION 11 Create a discharger fee system or reimbursement program for TMDL or other remediation programs, promotion of public participation, and pollution prevention efforts. While ultimately any effort to correct the flaws in California s water quality program and optimize its strengths will require cooperative efforts with the State Board, Regional Boards and other interested parties, this report is intended to reflect the experience and point of view of those representing the public interest and the constituencies they represent. It does not purport to provide a balanced set of criticisms from a wide variety of stakeholders engaged in the TMDL process, including dischargers and government agencies. This is specifically because the influence of these other stakeholders is sometimes the source of problems associated with TMDLs and the process by which they are developed. 5

10 I. Introduction: A Broken System Cleaning Up Contaminated Waterways Using Total Maximum Daily Loads (TMDLs) Cleanup standards for contaminated waterways are addressed in sections of the Clean Water Act, first passed in 1972 (CWA ). Section 303(d) of the Act describes the regulatory mechanism for establishing cleanup requirements for impaired waterbodies so that they meet specific water quality standards. The specific amount of pollutant that is allowable in a waterbody is called a Total Maximum Daily Load (TMDL). The responsibility to comply with Clean Water Act water quality standards rests with states, territories, and tribal governments. Water quality standards are risk- or hazardbased requirements establishing allowable pollutant levels in individual waterbodies such as lakes, rivers, wetlands, and bays. The standards are based on recognized designated or beneficial uses associated with each specific waterbody in question.* These uses include such things as providing drinking water, maintaining wildlife habitat, sport fishing, swimming and other types of recreation, and supporting commercial uses. It is up to the state or other responsible entity to identify the beneficial uses for its waters (a waterbody may have multiple beneficial uses), establish water quality criteria to meet those uses, monitor the water quality, and ascertain if the criteria are being met.** If a waterbody or segment of a waterbody does not meet the appropriate standards because of contamination or another cause, it is placed on the federal 303(d) list (named for the applicable section of the Clean Water Act), and a determination is made regarding how to remediate the impairment. In its simplest form, a TMDL is a number. Specifically, it is the amount of a contaminant, such as a chemical, salt, trash, or even an invasive species, that a waterbody can contain and still meet water quality standards based on its societal and environmental uses. Understanding the acceptable level of pollution helps regulators develop contaminant discharge limitations and water remediation plans. The term TMDL can also refer to the plan devised to address the pollution in waters that does not meet water quality standards. For the most part, it is the second definition that is used in this report. California s TMDL Process Each state employs its own process for adopting TMDLs or other remediation plans for their impaired waters. California complies with the requirements of the Clean Water Act through implementation of the state Porter-Cologne Water Quality Act (Porter-Cologne) established in Under Porter-Cologne, nine Regional Boards identify beneficial uses and water quality standards for the waterbodies in their part of the State and develop basin plans to manage those waters. They also identify impaired waterways suitable for listing on the 303(d) list, and develop plans to correct the waters * Designated uses is the term found in the Clean Water Act, and some of them, such as fishability, are specified and required to be applied to various waters as minimum requirements. [See Section 101 a(2)]. Beneficial uses is the term used by the State of California. ** Water quality criteria take the form of either numeric pollutant concentration limits or narrative pollutant requirements. 6

11 impairments and return them to a state that supports their beneficial uses. The Regional Boards usually satisfy this requirement by developing TMDLs for specific pollutants in an impaired waterbody and a corresponding implementation plan, which when adopted, is amended into the Basin Plan for the watershed. Consequently, TMDLs formally become Basin Plan Amendments or BPAs. TMDL development can take several years and involve input from a wide variety of stakeholders, including members of the public, dischargers, and other government agencies. Once Regional Board staff have completed watershed studies and developed the TMDL (including the implementation plan), the members of the Regional Board review it, receive public comment, direct staff to make any changes they deem necessary, and ultimately adopt it. It then goes to the State Water Resources Control Board (State Board) for approval. The State Board has the option of approving the TMDL or remanding it back to the Regional Board for revision. It cannot revise the TMDL unless it comes back a second time and is still deemed inadequate. Once the State Board approves a TMDL, it is sent to the Office of Administrative Law, and ultimately to the U.S. Environmental Protection Agency (U.S. EPA) for final authorization. Once authorized, the TMDL goes into effect. According to the U.S. EPA, 1,334 federally approved TMDLs have been completed in California since Forty-eight (48) of these TMDLs were not developed by the Regional Boards, but by the U.S. EPA. Note that the Clean Water Act requires the development of a TMDL, but it is Porter-Cologne that requires the development of explicit plans to achieve the TMDL goals. 3 Consequently, the Regional Boards typically go through the formal process of adopting EPA s TMDLs and developing implementation plans to support them. The public has the opportunity to influence TMDL development, though the degree to which different segments of society such as impacted communities and dischargers can engage varies as described in the Issues section of this report. Regional Boards must seek public input during the studies and actual writing of a TMDL and remediation plan, though the form and extent of that input may vary. In addition, public notices go out when either a Regional Board or the State Board is going to consider a particular TMDL, inviting both written and oral comment. Comment may also be submitted to the U.S. EPA if a stakeholder feels the need to support or oppose a plan that has gotten that far. A History of Failure The process of developing TMDLs in California is flawed and often yields poor results. The mercury TMDL for San Francisco Bay provides just one example. In 2005, the State Board adopted Resolution remanding the TMDL and remediation plan back to the San Francisco Bay Regional Board, which had produced it. The State Board questioned whether the mercury TMDL would achieve adequate pollution reductions to lead to meaningful change in the watershed and whether targets for mercury reduction were clear and would 7

12 achieve compliance with regulatory water quality standards. The State Board gave specific instructions to the Regional Board for revision of the TMDL plan, including, but not limited to requiring that the Board modify wasteload allocations to ensure that point source dischargers would incorporate the most effective treatment and pollution prevention practices practical for their discharges, create methylmercury monitoring requirements, identify all sources of mercury that may affect the Bay, and specify mercury reduction targets for the protection of wildlife. Resolution also referenced the U.S. EPA s objection that it was unclear whether the TMDL would attain numeric water quality objectives in portions of the Bay. 4 The State Board s action was considered a major upset by dischargers and the various water boards who had been closely watching the development of this TMDL, not only because it addressed a major environmental problem, but because they believed it could potentially become a model for public participation in TMDL development. Environmental and environmental justice advocates disagreed that the Bay s mercury TMDL process was a positive model, claiming that it marginalized their concerns. The advocates felt that the TMDL did not reflect their input. Instead, they viewed the plan as vague and unlikely to lead to real water quality improvements in a reasonable time frame, if at all. Specifically, public advocates criticized 8

13 the TDML s cleanup goals as inadequate to protect the Bay Area s subsistence fishing population. The ultimate cleanup goal only allowed safe human consumption of Bay-caught fish once a week, thus turning a blind eye to actual fishing practices in the Bay Area, particularly among low income communities and communities of color who consume much greater quantities of fish due to economic and/or cultural reasons. The advocates also criticized the TMDL s 120-year time frame, which they viewed as the result of inadequate mercury reduction requirements. They noted that the centuryplus timeline relied largely on the natural attenuation of the Bay s current mercury loads out to sea, without any assurance that this passive solution would in fact succeed. These fundamental problems manifested other flaws, including: Potentially inadequate load allocations.* Failure to address pollution sources, such as air deposition from local facilities. No clear plan to reduce upstream mine waste (a significant source of mercury). No specific requirement to fund efforts to reduce or mitigate exposure risks to highly impacted communities, or to ensure that all dischargers participate in mitigation programs. No explicit program to identify actions dischargers must take to ensure compliance with load allocations. For instance, much of the mercury reduction burden was shifted to non-point sources, such as municipal stormwater, without assurance that there would be adequate funding, experience, or infrastructure to ensure that they could meet their target reduction goals. Resolution did address many, though not all, of the public advocates concerns. Though the State Board s decision to send the San Francisco Bay mercury TMDL back to the Regional Board for revision was viewed by many as a victory for the environmental and environmental justice communities, it was bittersweet at best, given that the remand delayed final adoption and thus implementation of a mercury cleanup plan by two years and required the use of additional public resources. The controversy over the San Francisco Bay mercury TMDL is not unique. It is typical of the problems public interest groups as well as dischargers and regulators experience in TMDL processes elsewhere in California, and the sometimes weak or, at best, vague cleanup plans that result. For instance, while the Central Valley Regional Board asserted that their *Bay Area oil refineries are an example of dischargers that may have received inadequate load allocations. Scientists estimated the amount of mercury in crude oil entering the refineries to be higher than the majority of other mercury sources throughout the watershed, yet the TMDL s allocations for this source failed to take any of the crude oil mercury into account. Environmentalists petitioned the Regional Board to require the refineries to conduct a mass balance analysis to determine the fate of the mercury entering the refineries, however the Regional Board delayed the requirement of these studies until years later, and then only after a full State Board hearing on the matter. The refineries eventually agreed to do a partial analysis, which they conducted internally without peer review. When environmental groups sponsored their own peer review of the interim report produced by refinery experts, independent scientists found grave flaws with the refineries study designs, methodologies, and conclusions. Without responding to the public criticisms of the report or requiring the refinery to make any changes, the Regional Board rubber stamped the refinery report, leading public-interest groups to suspect that the TMDL fails to hold one of the single-most significant mercury polluters fully accountable. 9

14 What Constitutes Meaningful Public Participation? One of the most interesting strategies to enhance public participation was initiated by the controversial Clean Estuary Partnership (CEP). Viewed by some in the environmental community as an inappropriate partnership between regulators and the regulated, the CEP consisted of San Francisco Regional Board management, the Bay Area Clean Water Agencies (representing municipal wastewater agencies), and the Bay Area Stormwater Management Agencies Association. Though not an official member the Western States Petroleum Association also participated. This group came together to guide the development of TMDLs and other water quality attainment strategies for the San Francisco Bay-Delta and its tributaries. 5 The CEP provided funds, using the Rose Foundation for Communities and the Environment as fiscal sponsor, for environmental and environmental justice advocates to hire a consultant to review and explain technical documents and issues to those advocating for a strong implementation plan. The technical advisor did not make policy decisions on behalf of advocates they did that on their own but he did represent his clients interests during meetings of a TMDL technical advisory group. From the public interest perspective, this was a successful strategy that allowed groups like Clean Water Action, San Francisco Baykeeper, community-based members of the Environmental Justice Coalition for Water, and tribal interests to educate themselves and provide informed input on the San Francisco Bay mercury TMDL and implementation plan. Despite this positive experience few, if any, of the public s recommendations were incorporated. Instead, these groups felt that dischargers needs were given more weight in the decision-making process and that Regional Board staff responses to public comments (required by law) were little more than a bureaucratic exercise used to justify the weak TMDL they had developed. Frustrated by what they perceived as an unresponsive process, the environmental advocates submitteed their concerns to the State Board. While the support of the dischargers and agencies of the CEP was in fact an effective means of promoting meaningful public participation in a technical TMDL process, it appeared to be based on whether CEP members got the result they wanted. The CEP did not continue their support when environmentalists convinced the State Board to remand the TMDL back to the Regional Board for revision in Resolution The revised TMDL, which was based on instructions in Resolution that mirrored many of the environmental community s recommendations, was approved by the State Board in July 2007, and is currently being implemented. Delta methylmercury TMDL resulted from a stakeholder process that included environmental and environmental justice representatives, those communities could not participate to the same degree as dischargers and felt that their interests, such as the need for a more stringent fish tissue target, were disregarded 6 (See Delta Methylmercury TMDL Stakeholder Process, p. 23). Public interest advocates in Southern California were deeply frustrated by the stakeholder process for the Los Angeles River bacteria TMDL and stopped attending meetings because their voices were not being heard. While environmentalists praised a proactive pilot program to reduce mercury methylation and potentially protect humans and wildlife in the Guadalupe River watershed, they were disappointed when the San Francisco Bay Regional Board refused to act on their request to study local human fishing practices and develop an exposure reduction program similar to the one that the State Board required as part of the Bay mercury TMDL. This sent a message that public input carried little weight and the 10

15 Board would only take actions to protect impacted communities when explicitly required to do so by the State Board. A Significant Problem The State Board estimates that over 400 TMDLs are needed to address 1,883 waterbody/pollutant combinations in California that violate the federal Clean Water Act s water quality standards. Examples of pollution requiring cleanup include dioxin compounds in the San Francisco Bay, pesticides and organochlorine throughout the Central Valley, mercury in the American River and other tributaries flowing from mining districts, ammonia and copper in several Santa Ana region waterways, algae and sediment in the Klamath River, and a statewide trash problem. The State Board estimates that development of cleanup plans for these problems will take 13 years. 7 This timeline is questionable since the Clean Water Act was passed 41 years ago and elimination of pollution discharges into the nation s navigable waters was supposed to have been achieved within 13 years. 8 According to the U.S. EPA, in these 41 years, none of California s impaired waters have achieved water quality standards that lead to the attainment of all their recognized beneficial uses. 9 Nor are we catching up. Every two years new waterbodies or segments are added to the federal 303(d) list. New chemicals enter the marketplace each year and as environmental toxicology research grows, scientists continue to discover new emerging contaminants, such as pharmaceuticals, antibacterial agents, and flame retardants whose impacts on water quality are still being determined. It is reasonable to assume that as technical understanding of these chemicals expands, they will result in new listings of impairments and thus require new TMDLs. Given the complexities of California s current and expected future water quality violations, the quality of the plans developed to address them is of paramount importance. There is no doubt that most Regional Board staff are dedicated to developing and implementing the most effective remediation strategies possible in the face of complex hydrological factors, competing interests, conflicting legal requirements, and outside political and economic pressures. However, despite fundamental specifications outlined in the Clean Water Act, 10 California s Porter- Cologne, 11 and the State Board s own TMDL guidance, 12 there is a general lack of consistency regarding how contaminant problems are prioritized, and the strength of the plans that are developed to address them. TMDLs can vary in their clarity, their goals, and the aggressiveness of the load allocations and contaminant reduction requirements depending on who writes the implementation plan, the problem the TMDL addresses, and the particular Regional Board overseeing its development, implementation, and enforcement. Too often public interest groups are frustrated with the resulting plans, viewing the weak cleanup requirements as a result of a process that favors dischargers and improperly undervalues the benefits of cleanup against the costs. Furthermore, the uncertainty as to the ultimate ability of TMDLs to return waterbodies to beneficial uses, combined with the lack of accountability for their 11

16 success results in a significant level of public distrust of the process and sometimes of the Regional Boards themselves. This report identifies consistent problem areas and recommends improvements to the process by which California remediates its water resources in order to comply with both the Clean Water Act and Porter Cologne. The primary goal is to recommend changes to the development process that promote a fundamental level of quality among TMDLs, regardless of the contaminant or the Regional Board responsible for the waterbody. In addition, the report seeks to promote processes that ensure that the most environmentally and health protective actions will be taken to address water impairments. Background and Methodology This report is intended to reflect the perspectives of impacted communities and organizations whose mission is to provide stewardship of the environment and public health and safety. It is not intended to provide a balanced set of criticisms from a wide variety of stakeholders engaged in the TMDL process, including dischargers and government agencies, because the thesis of this initiative is that the TMDL process in California is inadequate partially as a result of decisions made by, or the influence of these other stakeholders. To prepare this report, Clean Water Fund formally surveyed twelve TMDL process veterans representing local watershed groups, environmental groups, academia, and environmental justice organizations, as well as a technical expert and a representative of both the U.S. EPA and the State Board.* These surveys focused on the interviewee s perception of: (1) the purpose of a TMDL, (2) the effectiveness of the process by which they are developed, (3) the factors that impact that process, and (4) policies and process changes needed to improve not only the TMDL development process, but how California addresses impaired waterways in general. As Clean Water Fund identified others who also had extensive experience with TMDLs in various parts of the State, it added their input and included them in group discussions. The interviewees and these additional contacts together formed the work group that in identified key issues and concerns, as well as a list of recommendations for potential reforms. In 2002, the California legislature enacted SB 469 (Alpert), which required the State Board to prepare guidelines for listing and delisting waters on the 303(d) list, and developing and implementing the State s TMDL program. 13 The Board s guidance document sets out a specific process by which Regional Boards evaluate the waters under their jurisdiction, and eight steps for developing a particular TMDL project. 14 While the goal of the guidance is to ensure a degree of quality, consistency, and accountability, the work group convened by Clean Water Fund identified 11 major problems that can limit the success of the TMDL program. These tended to fall into two categories, which at times overlapped: * See Appendix 1 for copy of survey. 12

17 Procedural problems: These relate to how TMDLs are developed and the decision-making processes that influence what they and their implementation plans contain. These problems include limited opportunities for public input and how that input is weighed and incorporated into decisions. Substantive problems: These refer to the variation in the quality of TMDLs and implementation plans that affects the likelihood of success. It should be noted that the project participants have had experiences in TMDL or watershed remediation efforts that were developed in an inclusive, constructive manner and are leading to water quality improvements. These successful processes have helped to inform the recommendations made in this report. In general however, the participants found that decision-making processes, which take many years and consume significant resources, lack meaningful public participation, and do not prioritize the needs of underrepresented communities. In addition, the resultant cleanup plans are of inconsistent quality, vary in the aggressiveness of contaminant reduction requirements, and create tremendous uncertainty as to the likelihood of success. The recommendations in this report are a mixture of specific actions and more general policy changes. They will not solve all the problems identified by the work group, nor do they represent, in all cases, full consensus as to how best to implement them. However if implemented, they will significantly improve TMDL development processes and yield better water quality results. II. Fundamental Problems with TMDL Processes and Recommendations for Improvement The State Board s State of California S.B. 469 TMDL Guidance: A Process for Addressing Impaired Waters in California provides the Regional Boards with general guidance, explaining the purpose of TMDLs, basic criteria for their development, and other related instructions. 15 While this document is a useful overview of TMDL development for the Regional Boards, it does not address the issues identified in this report that stymie the development of effective cleanup plans. This section examines those issues and provides recommendations to resolve them. ISSUE #1: The single contaminant per waterbody approach limits positive results. While both the Clean Water Act and Porter- Cologne allow a TMDL or alternative water quality control plan to address more than one contaminant, many focus on a single chemical or pollutant stressor. Despite the best intentions of the Clean Water Act, the 13

18 single contaminant approach means that Regional Boards and the State may miss opportunities to make progress on multiple problems within a waterbody or to address potential cumulative problems. Furthermore, relying solely on TMDLs to address water impairments limits the toolkit used by the State to address water pollution. Consequently, options or combinations of options other than traditional TMDLs, such as cleanup and abatement orders, permit renewals, Superfund actions, development of statewide cleanup strategies and required best practices, and multi-contaminant cleanup plans are not always adequately considered or implemented to address water quality issues. Another problem is that the TMDL process is slow the mercury TMDLs for San Francisco Bay, the Delta, and the Guadalupe River all took almost a decade from scoping of the problem to adoption. The State has neither the time, resources, nor personnel to address all of its 303(d) listings on a oneby-one basis or to prevent further degradation in this manner. For example, the San Francisco Bay Area Regional Board has over 270 listings in 88 waterbodies on their (d) list. Regional Board staff are currently developing TMDL projects to address more than 160 of these listings. While this is a significant effort, serious contaminant problems such as dioxin are not even scheduled for action. 16 Finally, the one-contaminant-at-a-time approach prevents cumulative impacts of contaminants on public health and/or the environment from being considered when identifying impaired waters or establishing cleanup plans. While individual pollutants, such as a particular pesticide, may not violate water quality standards, it is not uncommon that the specific substance in combination with other toxins does. Without adequate toxicity testing and evaluation through ambient water monitoring, regulators fail to recognize the scale of the overall impairment, or miss the opportunity to combine resources and strategies to address multiple problems. RECOMMENDATION #1(a): Develop a process at the state/regional level to identify other remediation models and to employ a broader systemic approach to address water quality impairments. The Clean Water Act allows for other remediation models to either supplement or replace TMDL processes in order to meet water quality standards in a less resource intensive, and more timely and effective manner. However, the water boards have not generally pursued alternative models. According to the 2006 State s List of Water Quality Limited Segments Being Addressed by Actions Other than TMDLs, contaminants in only eight waterbody segments were being addressed by alternative actions, though the list is not specific as to what those actions were. 17 There needs to be a process at the state and/ or regional level to identify and evaluate other models by which to meet Clean Water Act requirements and revive water quality. Before TMDL scoping meetings, Board staff should investigate and report to the Regional Boards their findings regarding potential alternative remediation strategies that could either replace TMDLs altogether, or be 14

19 TABLE #1: The single contaminant per waterbody approach limits positive results. Recommendation #1(a): At the outset, consider remediation models to supplement or replace the TMDL approach. Specific Actions Prioritize approaches that will lead to best outcomes. Regional Board staff research and report on alternative remediation models as part of the TMDL scoping process. Identify strategies to address a particular problem that are also applicable to other watersheds. Consider whether a regional or statewide approach is appropriate. Consider a waterbody as a whole, identify synergies between impairments, and when appropriate, develop holistic watershed-based action plans. Begin with the expectation that all dischargers will be held responsible for their contributions (such as through the permitting process) without regard to how much of the problem they are causing. Enforce cleanup and abatement orders. Implementation Options Engage the State Board in efforts to identify appropriate statewide actions. State Board develops guidance for Regional Board identification of most efficient and holistic remediation strategies. #1(b): Revise Good Samaritan laws pertaining to California water boards. Provide reasonable, but limited legal protection from liability, similar to that provided to DTSC, when water boards evaluate a potential pollution problem and implement remedial action. Legislative initiative. #1(c): Identify situations where tertiary treatment of multiple contaminants would be viable and cost effective. Require Regional Boards to consider the multiple benefits of added treatment, such as the ability to address multiple contaminants. State and Regional Boards establish requirement. included in Basin Plan Amendments along with TMDLs in order to optimize cleanup efforts. These alternatives include: Employing a holistic approach. In some cases, it may be more valuable to employ a watershed approach to determine which cleanup enforcement mechanisms to use. This involves considering a waterbody as a whole, ascertaining synergies between impairments or cleanup strategies, and identifying strategies to address multiple contaminants in one program. Such an approach would consider the chemical makeup of the impairments, the physical nature of the waterbody (such as water flow), the biological integrity of the watershed, and the full range of human needs related to the water, all leading to a broadbased action plan to meet water quality standards. 18 Employing already established pollution enforcement mechanisms. These would include but are not limited to using Superfund/CERLCA response, cleanup and abatement orders, pollution reduction pilot programs, and acting proactively through NPDES permits to achieve necessary reductions.* * One example is Region 2 s efforts to reduce trash within a specific time period through their permitting process. 15

20 Developing statewide TMDLs or cleanup policies. While the specific nature of a waterbody and/or a contaminant may require a very individual response, there may be opportunities to take statewide action. The advantages of such an approach include a more efficient use of resources, information sharing across watersheds, clear actions and requirements, and greater potential for accurate evaluation of the program s effectiveness and making changes in the program as necessary. In fact, the State Board, in its effort to control non-point source pollution, is in the process of reviewing already adopted TMDLs to identify opportunities for statewide action that would streamline TMDL adoptions. 19 One attempt at this approach is a statewide policy for trash in the form of amendments to the California Ocean Plan and the Enclosed Bays, Estuaries, and Inland Surface Waters Plan. Although not TMDLs per se, the proposed statewide trash amendments, if adopted, will be applied to regions where no regional TMDL or other trash policy exists. The existing TMDLs for trash in Southern California and a Municipal Regional Permit (MRP) for trash in the San Francisco Bay Area will therefore remain in force. Regions not already covered by the TMDLs or MRP will be covered by the trash amendments. The amendments are in the draft phase, and have not been released for public comment. While environmentalists have embraced the concept of amendments to state water control plans for trash, a statewide approach is not always a good idea. For example, because the form mercury takes, and thus its impact on the environment and aquatic life, varies greatly due to the specific environmental conditions in which it is found (temperature, water flow, drought versus rainy conditions, etc.), the traditional geographicspecific approach is more appropriate, with cleanup goals (measured by levels found in fish) that reflect the specific beneficial uses of each impaired waterbody. However, even with such a complex and variable contaminant, there are opportunities to implement broader programs to improve water quality. For instance, the State Board has created a program to establish a statewide TMDL and remediation plan, including best practices, for mercury in reservoirs because of the similarities in their physical conditions.* While the jury is still out on which water quality issues are best suited to a statewide approach, it is imperative that the program be transparent and allow for public input to ensure that the needs of all segments of the population, such as tribes and subsistence fishers, are served. Broadening the approaches to solving water quality impairments can ensure greater consistency and efficiency, as well as move remediation of the State s waters forward despite limited resources. Care must be taken however, to ensure that consideration of alternative cleanup options does not result in avoiding difficult TMDL processes or 303(d) listings. The actions listed in Table #1 aim at considering non-traditional remediation approaches and can be part of * For information about the program, visit 16

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