How To Improve A Mercury Cleanup Plan

Transcription

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

21 a comprehensive approach or can be used individually as stand-alone efforts. 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. Cleanup or actions to stop the spread of pollution performed by government agencies such as the water boards can enhance water remediation programs. The Regional Boards do have authority, albeit subject to limitations, to remediate certain pollution sources when the responsible party is recalcitrant or unknown. They are, however, reluctant to do so because under current Good Samaritan laws, once they get involved they are then permanently considered a responsible party and potentially subject to a heavy burden of liability for even limited actions. Good Samaritan laws, therefore, can have a chilling effect on state action. There are two categories of Good Samaritans. The first includes non-governmental agencies and is governed by federal law. Thus any changes to the law would have to be done at that level. The second category consists of government agencies and is under state jurisdiction. While current state law provides the Department of Toxic Substances Control with a limited degree of liability protection when they enter and take action at a hazardous site, the water boards do not have the same explicit protections. 20 While it would be unwise to eradicate liability needed to protect environmental and environmental justice interests, workshop participants did recommend working with the California Legislature to define and provide reasonable limits to liability for the water boards within the State s water code. RECOMMENDATION 1(c): Identify situations where tertiary treatment by wastewater dischargers would be appropriate and cost effective by addressing multiple contaminants. TMDLs or other remediation tools should require strategies to address or prevent multiple contaminants. Tertiary treatment of wastewater can be very costly, and if viewed in terms of one contaminant, may not provide enough benefit to warrant the expense. However, when viewed as a multi-contaminant remediation and pollution prevention strategy, tertiary treatment and stormwater discharge controls may sometimes be cost effective. Regional Boards should, at minimum, include a cost breakdown that considers the multiple benefits of these options in developing remediation plans. ISSUE #2: Stakeholder processes fail to facilitate meaningful public participation. One of the most common concerns about how TMDLs are developed is the extensive involvement of dischargers and limited participation or input by impacted communities or public interest groups. This imbalance is particularly notable in formal stakeholder processes meant to identify and review technical studies and advise Regional Board staff on regulatory decisions. In recent years the water boards have increasingly employed stakeholder processes in an attempt to bring government, dischargers, and the public together to address various water issues, including TMDL development. 17

22 At first blush, stakeholder processes appear to increase the potential of meaningful public engagement. However, numerous factors, including those described below, contribute to stakeholder processes yielding limited public engagement and disappointing results. Limited capacity of community and public interest groups. The process to develop a TMDL can require large commitments of time and resources from all participants. Impacted communities and public interest groups lack funding, adequate staff, the ability to travel, and technical training to quickly review documents and studies. They are thus unable to compete with the ability of dischargers and government agencies to fully participate and provide input. The problem is exacerbated when, as invariably happens, meetings take place at great distances from impacted communities and are held at times when working community members are unavailable. Environmental justice advocates have long pressed for funding to be made available to community groups in order to enable them to participate more actively. Agencies, including the water boards, rarely have adequate funds for this and dischargers generally prefer to support the stakeholder process itself, providing in-kind assistance such as meeting space (again away from impacted communities) or money to pay professional facilitators instead of ensuring that everyone is at the table. Providing cover for flawed processes. In addition to not being truly inclusive, stakeholder processes can also create a false sense that everyone is heard or that their concerns are met. This puts public participants in a difficult position. If they do not participate at all, there is a fear of discharger dominance over the decisions being made, while their limited participation provides cover for a process that does not in fact include them in a meaningful way. For instance, despite the failure of its stakeholder process, the Central Valley Regional Board s Resolution No. R adopting the Delta methylmercury TMDL states: Stakeholders, including representatives from irrigated agriculture, managed wetlands, wastewater treatment plants, municipal stormwater, environmental advocates, environmental justice advocates, and State and federal agencies, participated in a collaborative stakeholder process with Central Valley Regional Board staff that contributed to the development of the proposed Basin Plan amendments for the Delta Mercury Control Program. 21 The statement is technically correct, but does not reflect the fact that environmental, tribal, and community representatives were greatly outnumbered and were unable to participate fully. It should be noted that environmental advocates did request that this language be stricken during the hearing at which the Board adopted the TMDL, so that their limited participation would not be mistakenly viewed as equitable or supporting the process. Their request was denied and the language is therefore the official, though misleading, record of what occurred. Consensus. The focus of building consensus among stakeholders does not always yield effective water quality plans. Processes that 18

23 Delta Methylmercury TMDL Stakeholder Process The Central Valley Regional Board s effort to advance a methylmercury TMDL for the Delta provides an example of how a stakeholder process can actually reduce the value of or interfere with public participation. When the Board heard criticism of the proposed TMDL at a 2008 hearing from dischargers, environmentalists, and community advocates, they opted to launch a stakeholder process in the hope of building consensus on controversial issues such as fish tissue targets, a 9-year methylmercury study phase, and offsets. While Regional Board staff must be credited with trying to be as inclusive as possible, the stakeholder process broke down on a number of levels: The limited funding available was spent on hiring a professional facilitator instead of stipends for community groups or even travel money for Board staff so that meeting sites could rotate and thus be more accessible. Small groups were created to work through specific issues, instead of the entire group of stakeholders addressing them at regular meetings. The result was an even greater time and resource commitment that further limited NGO and community member input. Options, such as participating by phone, again were well intentioned, but ultimately impractical. Complaints included the inability to hear or inject comments, a feeling of being marginalized when not physically present, and not being able to afford day-long phone calls. Outreach to tribes happened late in the TMDL development process, meaning that tribal needs were not prioritized and their local expertise was not used to inform the years of research that preceded the stakeholder process. Special meetings with other community groups were held in an effort to better facilitate their input. While this did allow staff to develop a clearer understanding of these specific interests, it was felt that separate meetings also served to segregate the community contribution, instead of integrating their views into the overall stakeholder discussion. Public interest representatives voiced concern at the outset that the views of the majority of participants would be weighted more heavily than those who were unable to consistently participate. This proved to be true as the staff report describes minority points of view on issues such as the ultimate cleanup goal (expressed by the amount of mercury found in fish tissue), but provides majority opinions as justification for the choices made in the end. In the opinion of many of those representing impacted communities, the final TMDL does not reflect their input or adequately address their needs. bring divergent groups together in order to find the best way to implement regulatory requirements can be effective. Examples include identifying ways for dischargers to meet load allocations in the most cost effective manner possible or developing effective strategies to reduce community exposure to contaminants while the TMDL is implemented. However, when applied to decisions about what regulations require, consensus is not always appropriate. This is because the focus on consensus ignores the basic goal of restoring beneficial uses that should ultimately drive such decisions. Discharger financial support. While many public interest advocates support holding dischargers accountable for providing financial and other resources for TMDL development, there is concern that such support enables dischargers to influence choices about what studies are conducted and even interfere with how Regional Boards prioritize which TMDLs need to be developed. For 19

24 example, a selenium TMDL for San Francisco Bay currently under development was initiated, with financial support, by local refineries because of concerns with their permit schedule. Members of the environmental community, however, have expressed concern that this moved action on selenium ahead of more serious pollutant problems, such as the Bay s 303(d) listing for dioxin. In the end, some environmental groups who were invited to meetings on selenium chose not to participate, fearing that their very presence would give the appearance of support for the prioritization of this particular TMDL. TABLE #2: Stakeholder processes fail to include meaningful public participation that lead to effective remediation plans. Recommendation #2(a): Develop public participation policy and strategy to promote broader input by groups and individuals working on behalf of the public interest, particularly impacted communities. #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. Specific Actions Ensure equipment works properly when depending on phone access for those who cannot travel to meetings. Hold meetings at accessible times. Expand geographic accessibility. Create models for how to value and weigh community input that avoid marginalizing it. Develop expedient models for stakeholder process. For example, start process with working draft document created by Regional Board for stakeholder input, which can then be crafted into implementable form based on the input received (similar to developing Maximum Contaminant Levels and Public Health Goals for drinking water). Vet compromises openly, requiring transparency about how they were achieved and opposing points of view. Demonstrate that compromises only pertain to implementation options and not the science or goals of a TMDL. Present majority and minority views to both the Regional and State Water Boards when seeking TMDL or other cleanup plan approval, and explain how opposing interests are weighted.* Hold decision makers accountable by requiring explanation as to why particular scientific findings are or are not relied upon in regulatory decisions. Provide clear explanation of decisions and regulatory actions associated with them.** Drafting of TMDLs can only be performed by Board staff. Require that consultants be limited to providing technical and background research and dischargers be limited to providing public comment like other stakeholders. Establish policies that encourage the Regional or State Water Boards to contract with organizations located within the watershed to collect data and do monitoring, including qualified non-profit and/or public interest groups and tribes. Implementation Options State Board develops guidance for staff regarding stakeholder processes, public participation, and transparent decision-making. State Board develops guidance ensuring that staff develop TMDL substantive provisions, as opposed to consultants or dischargers. Water Board establishes requirement that local experts be used as consultants, when available. Legislative action to revise state contracting rules. * This differs from responding to public comment or explaining in a staff report why a specific option was selected in that it focuses on how seriously specific input was considered and holds the Board and its staff accountable. ** Technically, this is already required in the staff report that accompanies a TMDL, though how well it is explained can vary. 20

25 In the end, it s a tough call for public interest advocates. While some continue to try to participate in as meaningful a way as possible, others see the formal stakeholder process as a flawed structure that allows even greater influence by dischargers while limiting environmental and environmental justice voices. Their preference is to boycott these processes and seek other ways to influence water quality decisions. 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. This is a particularly complex issue for which a variety of actions can be suggested, ranging from those focused on improving current processes to others that raise the stature of public interests when decisions are made. Though too numerous and diverse to summarize here, these actions are listed in Table #2 (p. 24). Despite their variety, these recommendations all address the imbalance of who is actually shaping decisions about TMDLs and other cleanup strategies, and how the public s views are weighted by the water boards. 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. California s water boards often hire consultants to conduct scientific studies and monitoring, produce necessary reports and analyses, and provide other essential information related to TMDL development. Due to state contracting procedures, the pool of consultants that water board staff can choose from is limited. This system marginalizes the valuable contribution of watershed groups and tribes who not only have the expertise to conduct such investigations, but can often provide local understanding of pollution impacts that outside contractors do not have. Instead, they are denied the funding that is provided to outside, well-heeled consulting firms to do the on the ground work that informs the TMDL process. Furthermore, they are delegated to submitting their research or expertise through the regular public comment process. Time and again, Regional Board staff or members do not view public comments as equally credible as that of the official consultants and the input is often disregarded or rejected. Local watershed and tribal groups should have an elevated role in collecting essential, locally generated data to inform the development and implementation of remediation plans (TMDLs and others). To achieve this, contracting rules should be changed so that the Regional Boards can engage and fund local groups to replace or supplement private contracting businesses. Staff reports accompanying TMDLs should demonstrate how the data provided by such groups was weighted in final decisions. ISSUE #3: Decisions are overly based on inappropriate factors, such as cost, expedience, and consensus not water quality and community impacts. There are differing perspectives on this issue. For some, the core problem is a mindset among both agencies and dischargers to seek the least onerous avenues to achieve water quality standards, versus aggressive actions to achieve maximum reductions. Another view is that too often the needs of dischargers are viewed as equal 21

26 to or greater than returning waterbodies to health and protecting impacted communities. Consensus building can blunt the search for the most effective remediation options. As a result, cleanup plans are often not stringent enough to alleviate impairments and achieve true beneficial uses. In particular, load allocations and pollution reduction requirements can be anemic and yield a high level of uncertainty as to how even those allocations will be achieved. Regulators must, of course, balance a wide range of social and environmental factors. Consider, for example, that many dischargers are public entities and high cost remediation of pollution can translate into increased cost to ratepayers. While the Clean Water Act does not take into account the costs involved in meeting water quality standards, the California Water Code and current guidance from the State Board does. The Water Code states that activities and factors which may affect the quality of the waters of the state 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. 22 Further on, the Water Code provides each regional board shall establish such water quality objectives in water quality control plans as in its judgment will ensure the reasonable protection of beneficial uses and the prevention of nuisance 23 While in both cases the word reasonable is not defined and is thus subjective, the Code does say that the Regional Boards must consider economics, along with societal issues when establishing water quality objectives. 24 Specifically, there are three triggers for the consideration of cost: 1) the costs of agricultural water quality control programs, 2) when establishing water quality objectives to protect beneficial uses, and 3) when analyzing compliance methods with proposed performance standards and treatment requirements as part of the California Environmental Quality Control Act (CEQA). 25 Considerations of the economic impacts on dischargers are inappropriate if they result in a failure to meet water quality objectives. Equal consideration must be given to external social costs, such as health care costs due to contamination, the cost of alternative water for drinking and cooking, costs of alternative food when waters are not fishable, lost time at school or work, etc. While identifying and quantifying such externalities is difficult, counting government or discharger costs in a social vacuum is poor governance and a case of environmental injustice. Wrangling over each discharger s degree of responsibility is a major impediment in developing effective load allocations and enforcement policies, particularly in the case of legacy pollutants for which the original responsible parties no longer exist or are unknown.* Such debates ignore the reality * An example of this is mercury contamination resulting from historic mining activity. While there are contemporary sources, such as waste and stormwater, air deposition, and industrial discharges, it is generally agreed that the largest source to San Francisco Bay, the Delta, and the myriad tributaries flowing in from southern mines or the Sierras is the result of human activity during the Gold Rush of the mid-19th Century. 22

27 TABLE #3: Decisions are 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 TMDL and implementation plans prioritize public and environmental health. #3(b): Ensure proper prioritization and timely action for 303(d) listed waters by Regional Boards. Specific Actions All pollution sources, no matter how significant, should be addressed. Pollution reduction and prevention requirements should be as stringent as possible, taking into consideration that waters on the 303(d) list have zero assimilative capacity for further contamination. Costs to dischargers, including public entities such as municipal waste and stormwater agencies, should not be considered when developing permit and other pollution control or cleanup requirements. Furthermore, any financial analysis related to remediation programs must include external costs such as health costs to the community, the cost of alternative water for drinking and cooking, costs of alternative food when waters are not fishable, lost time at school or work, etc. Require TMDLs be based on current science so process cannot be stalled by requiring additional research. Adaptive implementation should be built into implementation plans to allow for change based on new data. Enforce existing state policies to ensure timely prioritization and action on the most egregious impairments. Create accountability mechanisms to track resources used by Regional Boards on TMDL development and ensure they set targets based on greatest threats (could be tied to the State Board s performance report). Address all discharges (standards should provide clear parameters for exemptions). This includes a requirement that if air is a pathway, the Air Board must take action. Water Board should enforce timely implementation of TMDLs. Implementation Options State Board develops policy, similar to San Francisco s precautionary principle ordinance, focused on public and environmental health, to guide decision making in remediating water pollution. Policy is integrated in a general set of standards for all TMDLs. Explore legislation to revise the water code so as to require a precautionary approach and/or consideration of external costs to society. Adopt Board policy to implement listed actions (either as a stand-alone policy or integrated into standards). Create agreements between the Water Boards and other state agencies to implement monitoring, remediation, and pollution prevention. Legislation. that a waterbody on the 303(d) list has no assimilative capacity for further contaminant contributions, and all sources must be reduced or eradicated. RECOMMENDATION #3(a): Develop a specific state policy that TMDL and implementation plans prioritize public and environmental health. In response to concerns that non-environmental factors (cost, consensus, politics) take precedence in TMDL development, the State should establish an explicit policy that prioritizes public and environmental health. This policy should be supported by revisions in the water code to clarify that economic considerations focus on societal costs beyond expense of treatment or impacts on dischargers. Furthermore, in cases of scientific uncertainty, decisions should invoke the precautionary principle, resulting in as aggressive cleanup and pollution prevention strategies as possible based on current knowledge. RECOMMENDATION #3(b): Ensure proper prioritization and timely action for 303(d) listed waters by Regional Boards. This recommendation is intended to hold all 23

28 Regional Boards accountable for prioritizing cleanup of impaired waters and making the best decisions regarding which water impairments they will work on. The Clean Water Act requires states to rank TMDLs. California s policy is to rank them as high, medium, or low based on such factors as the severity of the water quality impairment or the beneficial use it interferes with. However, other factors sometimes come to bear, such as the availability of funding for specific projects. While the goal here is to ensure that all Regional Boards prioritize water quality remediation, simply cranking out TMDLs to fulfill legal obligations should also be avoided. Instead, there needs to be a mechanism that ensures that the most severely impaired waters, or the impairments that pose the biggest threat to humans and wildlife are prioritized. To address the issue of timeliness, the State Board must ensure enforcement of deadlines to complete TMDL or other remediation projects and avoid the cycle of delay caused by demands of further study by regulators and/ or dischargers, while ensuring that new science can inform revisions in remediation plans as it becomes available. One suggestion that arose from Clean Water Fund s workshops was having the State Board decide which of California s impaired waterbodies and TMDL projects need to be addressed first in order to ensure that regions focus on their most egregious water quality problems, monitor progress, and allocate resources accordingly. ISSUE #4: Composition of water boards influences TMDLs and implementation plans. The composition of the water boards can have a strong influence on how TMDLs are prioritized, how aggressive their implementation plans are in reducing pollution, and how other related decisions are made. In addition, staff composition influences the outcome of TMDLs since staff exerts a certain amount of discretion in the TMDL development process. Water Board Membership. Under Porter- Cologne, the membership of the State Board and nine Regional Boards is meant to reflect the diverse interests that rely on California s water resources. In the case of the Regional Boards, these interests included irrigated agriculture, water supply, industry, municipal government, county government, recreation, fish and wildlife, and three undesignated seats. Of these three, two must demonstrate expertise in water quality issues, though this is not specifically defined. 26 As a result, Regional Board members bring a varied scope of expertise related to water issues, including water quality, engineering, hydrology, or water storage. 27 Board members are appointed by the Governor, pending subsequent approval by the State Senate. While the law aims at a fair and balanced approach to decision-making, the reality is that the makeup of the Boards is largely dependent on the prevailing political culture regarding environmental regulation and environmental justice. In addition, Porter Cologne designated specific seats to discharger representatives, such as agriculture and business interests. While there are instances when board members recuse themselves from specific decisions, the reality is that the regulated community participates in making regulatory decisions that will affect them. While this should be considered a clear 24

29 conflict of interest, it is seen instead as providing expertise. Porter-Cologne provides for a public seat, but the term is interpreted broadly to include special interests, such as business. In fact, most of the water boards lack actual representatives from the public at large, particularly those living in disadvantaged and impacted communities who lack access to fishable, drinkable, and affordable water. In addition, while expertise of technical aspects of water accessibility and quality are valued on the Boards, parallel knowledge about the actual on the ground impacts of water board decisions on local communities is limited and often totally absent. While legislative efforts to restructure the water boards failed, the Brown Administration took a significant step toward reform by attaching a rider to the 2012 budget removing the affiliation categories for the Regional Boards.* This rule change does not preclude water experts with ties to dischargers from being appointed to the boards, but it takes away the requirement that they be represented and is a positive step toward fairer decision making. Regional Board Staff. Because Regional Board staff are responsible for writing TMDLs and implementation plans, they use their discretion in developing the best program possible.** They determine what information and studies will be relied upon during a TMDL s development, who to involve in the process, when and where meetings are held, and what land uses are considered when establishing loads or other aspects of the TMDL.*** Most Regional Board staff approach their work with expertise and dedication and seek a wide variety of views and sources of information in order to craft the best plans possible. This is a difficult undertaking given the pressures from divergent interests, economic considerations, and direction from the Board itself. As a result, there is inconsistency in the prevailing considerations from one TMDL process to the next. RECOMMENDATION #4(a): Reform water board membership to limit influence of regulated community and promote greater public influence in actual decision making. Though the Administration s recent action to eradicate seats tied to specific affiliations is positive, other reforms are needed to ensure that regulated community participation in TMDL development is limited to stakeholder status, and not as members of the water boards, in order to avoid conflicts of interest and to promote broader public * In 2007, SB 1001 (Perata) was vetoed. The bill would have established both structural and procedural changes to the Regional Boards, including reducing the number of members and doing away with the affiliation categories. A number of bills were introduced in this past legislative season (2012) that would have made procedural changes to the Boards activities, including SB 964 (Wright), SB 965 (Wright), SB 1306 (Blakeslee), AB 2117 (Gorell and Achadjian), AB 2398 (Hueso), AB 2063 (Alejo). However, a budget trailer was also introduced that would decrease membership on the Regional Boards from 9 to 7 members and effectively do away with affiliation categories, such as agriculture, local government, and business. This bill passed both houses and was signed by the Governor. ** Staff refers to both those actually tasked with developing the TMDLs and Regional Board management, such as department heads and a Board s Executive Officer, all of whom may make decisions related to remediation plans and regulatory requirements. *** Sometimes meeting locales are dictated by budgetary restraints on staff travel. Regardless, this has served to restrict the ability of members of the public to participate, and demonstrates the need to identify more economically efficient processes to address water quality impairments and to prevent pollution, as well as facilitating public participation over hiring facilitators for ineffective stakeholder processes. 25

30 TABLE #4: Composition of water boards influences TMDLs and implementation plans. Recommendation #4(a): Reform water board membership to limit influence of regulated community and promote greater public influence in actual decision making. #4(b): Create state guidance regarding how decisions are to be made by Regional Board staff in developing remediation projects. Specific Actions Prohibit membership of regulated constituencies on water boards. Limit regulated community participation in TDML development to stakeholder status, and not as members of Regional or State boards. Include a seat on the Regional Boards for members from communities impacted by water quality impairment, particularly low income communities and communities of color. Provide training on technical issues and adequate compensation. Develop or update guidance on decision-making priorities for Regional Board staff. Implementation Options Legislative action or work with Governor s office to further reform composition of water boards. Develop technical training program for board members, especially those representing community interests. Regional and/or State Water Boards establish guidance. participation on the boards. Water board membership should, however, include actual community members with expertise in real world impacts of water decisions, including those affecting low income communities and communities of color. Training on technical issues should be provided to aid in their full participation and adequate compensation is needed to ensure that recruitment of strong candidates for Regional Board membership is not impeded by limited financial reward for a significant time commitment. RECOMMENDATION #4(b): Create state guidance regarding how decisions are to be made by Regional Board staff when developing remediation requirements. In order to address the concerns of the public that decisions and remediation goals do not prioritize the needs of the watershed or local communities, there must also be clear requirements for providing transparent accounts of what sources of information form the basis of the ultimate remediation plan, why they were chosen, and how varying points of view were weighted. While staff reports accompanying TMDLs are supposed to include background on how decisions are made, an explicit policy is needed to ensure that these decisions are based on science and accurate information, versus political or other influences or biases. State policy should specifically require that staff reports provide scientific, peer reviewed evidence to support any conclusion that reaching a particular beneficial use is not feasible. In the face of uncertainty, the policy should ensure that the most stringent requirements possible are employed to lower contaminant levels. ISSUE #5: The approval process for TMDLs is lengthy and cumbersome. The development of a TMDL and implementation plan can take many years, sometimes up to a decade. However, once it is completed, the approval process can take upwards of two years; that is if the State Board, Office of Administrative Law, and U.S. EPA determine that the proposed plan is acceptable and conforms to state and federal law. 26

31 If they do not approve the TMDL, the process takes longer. For instance, if the State Board determines that specific revisions are necessary before it can approve a TMDL, it cannot make the changes. Instead, it must remand it back to the appropriate Regional Board, delaying implementation of a cleanup plan for at least another 1 2 years.* The repercussions of this policy are two-fold; either TMDL implementation is delayed or the State Board chooses to avoid delay by approving a less than optimal remediation plan. The approval process saps resources that would be better used for the development of TMDLs or other water quality plans, implementation, and evaluation of their effectiveness. The length of the approval process also provides the opportunity to stall action, and can be used to the advantage of those responsible for implementing pollution reduction strategies. While oversight by the State Board is necessary to ensure a basic level of quality and effectiveness in meeting water quality requirements, a more efficient process needs to be developed. Because the current approval procedure is dictated by Porter-Cologne, any revisions to it must be made by the Legislature. The State Board, however, should play a role in crafting a better process that balances their oversight responsibility with the need to streamline a cumbersome approval process. Recently, the State Board began piloting a process by which Regional Board staff, instead of state-level staff, present the TMDLs they ve authored for State Board approval. This does not preclude the responsibility of State Board staff to be knowledgeable about particular TMDLs and implementation plans. However, allowing regional staff to provide formal presentations and answer detailed questions for which they are already prepared is more efficient and less resource intensive. While this pilot is a positive step in expediting TMDL approval, more can be done. RECOMMENDATION #5(a): Allow the State Board some discretion to revise TMDLs. Reform of the approval process should include allowing the State Board to revise a TMDL that comes before it so that it is not limited to either approving a flawed TMDL or remanding it back to the Regional Board and slowing progress for several years. RECOMMENDATION #5(b): Allow Regional Boards to adopt a TMDL without State Board approval, subject to petitions for review from the public. Another reform measure is to skip State Board approval of Regional Board adopted TMDLs unless a petition for review by an interested party is made within 30 days. This would allow for quick transfer to the U.S. EPA and faster implementation of non-opposed plans, while still allowing for appeal by both public interest constituents and dischargers when they deem such action necessary. ISSUE #6: There is often inadequate focus on implementation strategies to improve water quality. Despite the long investment of time and resources a problem in itself the focus is often less on developing implementation * Such was the case with the State Board s Resolution described at the beginning of this report. 27

32 TABLE #5: The approval process for TMDLs is lengthy and cumbersome. Recommendation #5(a): Allow the State Board some discretion to revise a TMDL. Specific Actions Allow the State Board to revise a TMDL that comes before it so that it is not limited to either approving a flawed TMDL or remanding it. Implementation Options State Board adopts a policy regarding TMDL approval. Legislative action if necessary. #5(b): Allow Regional Boards to adopt a TMDL subject to a petition for review. Revise approval process so that when a TMDL is adopted by a Regional Board, it is deemed approved by the State Board unless a petition for review is made within 30 days. State Board adopts a policy regarding TMDL approval. plans required by Porter-Cologne that will lead to real water quality improvements, and more on fulfilling the legal requirements of the Clean Water Act to analyze impaired waters and develop the TMDL. Time and resources are largely focused on understanding the dynamics of the watershed and not enough on pollution prevention and cleanup. Furthermore, while TMDLs establish load allocations for non-point sources and wasteload allocations through NPDES permits for point sources, they are not ultimately prescriptive in how those allocations will be achieved. On the surface, leaving decisions about how to comply with load allocations up to dischargers makes sense in that it allows for flexibility and introduction of new technology along the way. However, it also means that after years of study of a watershed and expenditure of resources, the implementation plans that accompany California s TMDLs are often unclear about what exactly will be done to ensure that progress will be made to cleanup the problem. It also does not ensure that dischargers will employ the optimal cleanup strategies available, allowing them instead to meet the lowest level of compliance possible. One way to address this problem is the previously discussed exploration of non-tmdl models for meeting water quality standards either to supplement TMDL implementation or to replace it.* The other is to ensure that TMDL development processes prioritize cleanup and remediation strategies based on the best available technologies up front in order to encourage early implementation and proactive actions. RECOMMENDATION #6: Encourage early cleanup actions by beginning TMDL development with the crafting of pollution reduction plans. TMDL processes should begin by identifying the maximum reduction that can be achieved at present, along with practical strategies to achieve that reduction based on current scientific understanding. While it was suggested that this is in fact the starting point for Regional Board staff, this focus on implementation is not always central to stakeholder processes. Instead, emphasis is on technical studies about the watershed * See Issue and Policy Recommendation #1. 28

33 TABLE #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. Specific Actions In developing an implementation plan, first determine the maximum reduction that can be achieved. Begin with the beneficial use of the waterbody, describe the gap due to contamination, and outline how to remediate the problem based on available science. Engage the Air Board in identifying actions to stop or reduce air pollutant deposition when applicable. Reduce resistance to implementation by demonstrating how reduction requirements make a difference such that dischargers understand why they are being asked to take a specific action. Instead of establishing the waste load allocation as an end result within a given time, have interim waste load allocations that provide early information about effectiveness of remedial measures and allow for flexible response. This is more likely to achieve results than waiting until the end to hold responsible parties accountable. Establish 3 key mile-posts: description of potential effective actions, implementation of actions, and evaluation of health and ecological outcomes. Require that implementation plans include clear, publicly vetted performance guidelines. Consider non-tmdl strategies to reach water quality goals (see Issue 1). Integrate phasing, tiered strategies, innovations like exposure reduction for impacted communities, and pilot testing of new pollution reduction and/or prevention technologies. Implementation Options State Board establishes a policy and guidance for focusing on implementation early in the process. Regional Boards and local stakeholders establish such a process for specific TMDLs in order to establish a successful model. and the contaminant in question. While understanding the geography and chemical makeup of the problem is useful, it can overtake real efforts to address the problem or create ongoing delays due to claims that more data is needed before discharger requirements can be established. TMDL development processes need to be more focused on reducing pollutant discharges and remediating contamination to achieve beneficial uses. Such an approach could work within the traditional TMDL process, and include additional regulatory strategies to restore water quality. ISSUE #7: TMDL goals and remediation actions are often inadequate to revive or maintain water quality in a timely manner. The ultimate cleanup goals and implementation plans of many TMDLs are not aggressive enough and therefore are unlikely to achieve the goal of restoring beneficial uses. This is due in part because of the reluctance of some Regional Boards to hold dischargers fully accountable.* Even when a Regional Board is committed to strong enforcement and cleanup, there are three core problems that can render cleanup goals and implementation plans ineffective. First, there is an emphasis on what is achievable, as opposed to what needs to be achieved. Ironically, that very focus on achievability, which is often based on limited, non-scientifically defensible assumptions, leads to a lack of * See discussion of discharger influence. 29

34 public confidence in the ultimate success of the cleanup plans. Second, the emphasis on achievability can sometimes result in a feeble interpretation of what the water s beneficial uses are and the actual impacts of contaminants. Third, TMDLs and other water quality control programs are focused on addressing pollution after the fact, instead of proactively addressing new sources of contamination and so called emerging contaminants. The recommendations in this section are meant to address the issues of achievability and beneficial uses. Emerging contaminants will be discussed under Issue #10 and as a part of Issue #11. Beneficial Uses. Fish consumption. In defining beneficial uses, the process fails to consider actual fish consumption rates by all segments of the populace. This is a fundamental environmental justice issue. Many 303(d) listings are based on the fact that contaminants, such as mercury or PCBs, contaminate fish and impact both wildlife and humans who consume the fish. While a great deal of study goes into the technical aspects of developing a TMDL, there is typically little or no data collected to accurately establish the actual amount of fish being consumed by anglers within the watershed, particularly those in low income communities and communities of color who subsist on high levels of locally caught fish out of economic need and/or cultural tradition. Consequently, fish tissue targets based on traditional sports fishing averages represent an inaccurate and indefensible assumption of what the beneficial use of a given waterbody is and fail to protect all members of society. Regional Boards are able to rely on these averages because the State recognizes sports fishing as a beneficial use under Porter-Cologne. With the exception of the North Coast Regional Board, California does not recognize subsistence fishing. 28 Tribal cultural uses. The North Coast Regional Board set a positive precedent by officially recognizing tribal cultural uses as legitimate beneficial uses. 29 Unfortunately, other Regional Boards have not taken similar action. The problem is made more complex because tribes have been denied the ability to practice many of their cultural traditions. Consequently, tribes are seeking consideration of current cultural beneficial uses, as well as those that may not be currently practiced so that they may restore these historical traditions for future generations. Overemphasis on achievability. An overemphasis on achievability limits goals and actions and distorts science. In fact, setting cleanup goals and regulations based on what is believed to be achievable contradicts the Clean Water Act. Porter-Cologne confounds the situation, however, by requiring, among the factors to be considered in establishing water quality objectives, water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area. 30 The primary problem is that achievability is often based more on discretion than on valid scientific data. For example, assumptions that true beneficial uses, such as subsistence fishing, are not achievable are generally not proven. Water quality and fish tissue standards are based instead on what is perceived as reachable as opposed to what is actually required to remediate impaired waters. 30

35 Tribal Cultural Uses The North Coast Regional Water Quality Control Board defines Native American Culture (CUL) or tribal cultural uses of water as those that support the cultural and/or traditional rights of indigenous people such as subsistence fishing and shellfish gathering, basket weaving and jewelry material collection, navigation to traditional ceremonial locations, and ceremonial uses. 31 This definition implicitly demonstrates a wide array of benefits tribal communities have traditionally gained from local waters and the fact that those traditions can vary from tribe to tribe. Consequently, any consideration of these benefits must be done on a watershed basis, involving the tribes residing in the area or who reside elsewhere but have historical, cultural ties to the area in question. Identifying tribal cultural uses is complicated because many have not been practiced for a long time due to years of discrimination, enforced movement, denial of access to traditional lands, the legal loss of water rights, and denial of their ability to practice their traditions. The issue is further complicated by the legal status of tribes. Those who are not formally recognized by the federal government have little legal standing to assert water rights and environmental protections, or even access to cultural waters and practices. The Karuk, a federally recognized tribe based along the Klamath River, has been a leader in fighting for recognition of their ancestral rights and environmental protections. The Klamath s salmon runs have always been central to both the Karuk people s dietary health and ceremonial life. However, management of those fisheries is dependent on the management of the entire watershed, which extends beyond the tribe s specific jurisdiction. Since protecting the salmon for the tribe s benefit is not recognized by the California Water Code as a reasonable and beneficial use, upstream influences such as the building of hydroelectric dams has resulted in the crash of salmon populations, increased poverty within the tribe, ill health due to dependence on non-traditional processed foods, and what has been called cultural genocide. 32 These assumptions impact what scientific investigation is conducted, what studies are considered, and how they are interpreted during TMDL development. RECOMMENDATION #7(a): Establish a public task force to revise minimum standards for TMDLs. Workgroup participants identified a varied list of recommendations to ensure greater consistency and higher quality of TMDLs or other remediation projects. These suggestions focused on ensuring that development of cleanup plans include an accurate understanding of how the water is being used by the populace, that assumptions about achievability be based on sound science and not subjective opinions, and collecting comprehensive monitoring data. The list is not intended to be comprehensive, and the workgroup agreed that other stakeholders, such as water board personnel and other government agencies should be brought together to identify other potential improvements to the State s TMDL guidance to ensure compliance by all Regional Boards. Consequently, it is recommended that the State Board establish a task force of interested stakeholders to develop new guidance. 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. In order to accurately identify impaired waters and set appropriate cleanup goals, 31

36 TABLE #7: Inadequate goals and actions to revive or maintain water quality. Recommendation #7(a): Revise minimum standards for TMDLs. #7(b): Adopt new statewide beneficial uses to protect all Californians. Specific Actions Establish a task force of water board personnel and public stakeholders to revise minimum TMDL standards. Such revisions should include, but are not limited to the following: Collect data on local fish consumption rates as part of TMDL development when impairment is based on fishability. Base assumptions on what is achievable to protect and restore beneficial uses on science, not on subjective opinions. If Regional Board staff believes it is not feasible to reach a particular beneficial use, they must provide scientific, peer reviewed evidence why that is the case. Fish tissue targets must reflect actual consumption rates and not what is currently seen as achievable. This should be based on an adaptive management model to allow for readjustment based on new data. Require dischargers to support the development of exposure reduction programs for subsistence fishers while remediation is taking place.* Build an ambient water quality baseline and monitor accordingly in order to identify trending problems and assess progress of restoration efforts. Require toxicity testing and evaluation as part of ambient water monitoring in order to identify sources of water contaminant problems, better assess the state of the water, and capture cumulative impacts. Incorporate data on flow impacts on water quality into TMDL development. Integrate adaptive management into all TMDLs to ascertain if better science and/or additional data validate the current analyses or whether new information is available to update the TMDL. Beneficial uses should be determined independently from economic considerations and technical feasibility. Establish state-wide subsistence fishing and tribal cultural uses as beneficial uses that must be protected and addressed by TMDLs or other remediation plans, including past traditions tribes seek to revive. Implementation Options State Board revises guidance for addressing impaired waters. State Board institutes potential new requirements for TMDL development on an individual bases. State Board adopts both beneficial uses for all of California. Legislative action to revise Porter-Cologne and establish new beneficial uses if necessary. California s list of beneficial uses must reflect the real-world uses of its waterways. To ensure this, the State Board should formally adopt both subsistence fishing (FISH) and tribal cultural (CUL) beneficial uses to be recognized statewide. Furthermore, state policy must explicitly require regional boards to base cleanup goals and other decisions on those beneficial uses so that all Californians and the environment are protected, and that Regional Board staff has sufficient data to track water quality trends in order to revise or adapt TMDL implementation over time. * The State Board s Resolution established a precedent for such programs which were subsequently incorporated into the San Francisco Bay mercury and PCBs TMDLs and the Delta methylmercury TMDL. 32

37 ISSUE #8: Enforcement tools for non-point sources are limited. TMDLs are not self implementing. They depend on other regulatory mechanisms to ensure that pollution sources are controlled and that those controls are enforced. Consequently, much of the emphasis of TMDLs or other water remediation programs centers on point source pollution that can be controlled through National Pollutant Discharge Elimination System (NPDES) permits. Non-point sources have significant impacts on water quality. For instance, according to the State Board, in California, urban storm water is listed as the primary source of impairment for ten percent of all rivers, ten percent of all lakes and reservoirs, and 17 percent of all estuaries. Although these numbers may seem low, urban areas cover just six percent of the land mass of California and so their influence is disproportionately large. (2010 Integrated Report) Regulatory enforcement options for nonpoint sources are limited. In fact, some sources, such as agricultural enterprises, have not been directly regulated through the Clean Water Act. In California, irrigated agriculture is provided with waivers by the Regional Boards, traditionally giving them a free ride to contribute to pollutant loading through runoff to both surface and ground water. Even when non-point sources are given load allocations in a TMDL, there is no clear enforcement mechanism to ensure progress. Dependence on best management practices can be unsatisfactory, especially when those responsible for non-point sources can fulfill their legal obligations by simply implementing such practices, whether they are effective or not. This flaw in the system allows both dischargers and enforcement agencies to escape accountability. RECOMMENDATION #8: Create enforcement mechanism(s) for various sources of nonpoint pollution. It is imperative to create measurable and enforceable requirements to reduce nonpoint source pollution. In some cases this will consist of regulating previously unregulated sources, in particular agricultural runoff, which impacts both surface and groundwater. An enforceable permit structure, such as the NPDES permits for point sources is recommended for non-point sources as well. There are efforts in the State to move in this direction, including the regional municipal stormwater permits in the Bay Area. In addition, the Central Valley and Central Coast Regional Boards are creating requirements for farmers to monitor nitrates and reduce fertilizer applications in a first time effort to reduce water impacts of agriculture. These are positive steps in the right direction, but more will be required, such as developing permits or other mechanisms to measure and regulate all non-point sources. ISSUE #9: Evaluation of TMDL effectiveness is limited or non-existent. The State Board s TMDL guidance recommends eight steps to develop a TMDL, ending with implementation. However, while implementation plans are expected to include methods to monitor and track progress, there is no delineated assessment of progress or revision process required

38 TABLE #8: Enforcement tools for non-point sources are limited. Recommendation #8: Create enforcement mechanism(s) for various sources of non-point pollution. Specific Actions Revise Porter-Cologne to allow Regional Boards to impose and enforce required actions on non-point sources similar to those included in NPDES permits for point sources. Regulate runoff from agricultural lands by developing best practices to reduce fertilizer use and monitoring requirements for nitrate runoff above ground to identify both surface and groundwater impacts. Ensure permits (for both point and non-point) include clear guidelines for plans that dischargers must develop, implement, and evaluate Implementation Options Work at Regional and State Board levels on related regulations. Significant resources are expended on TMDL development, including planning, studies, stakeholder processes, the actual writing of the TMDL and implementation plan, public comment, response to comments, consideration by the Regional and State Boards, and approval by the U.S. EPA. Once adopted however, there is generally little or no evaluation of effectiveness of the plans and no efficient way to amend them when necessary, despite the fact that each adopted TMDL sets a precedent for subsequent plans. The focus appears to be on the number of TMDLs being cranked out in order to meet Clean Water Act requirements, but not on their effectiveness. The State Board is, in fact, working to address this issue. A positive first step has been the recent development of publicly accessible progress reports providing the public with basic information about the problems TMDLs are addressing and progress on meeting the goals established in the implementation plans. The Board needs to follow-up this initial effort with monitoring that will flag remediation failures and require revisions of cleanup plans to ensure success. RECOMMENDATION #9: Establish programs to evaluate effectiveness of TMDLs or other remediation programs in achieving short and long-term goals. Increased focus is needed on the back end of the process, with a built in evaluation plan that incorporates appropriate monitoring to determine the effectiveness of all implementation plans and a regular report back to the State Board that identifies supplemental actions that may be necessary to achieve water quality goals.* While such an evaluation program should be established with each TMDL at the regional level, the State Board once again has the responsibility to ensure a baseline of quality by defining evaluation and reporting requirements and holding the regions accountable. If a cleanup plan is not achieving the necessary goals, the State Board should require that new more effective strategies are put in place and implemented. Interim wasteload allocations and mileposts used to gauge progress should be established either by the State Board or by revising Porter- Cologne. Interim allocations will provide information earlier about the effectiveness * Informed by the aforementioned improved ambient water quality monitoring that identifies trending problems. 34

39 TABLE #9: Evaluation of TMDL effectiveness is limited or non-existent. Recommendation #9: Establish programs by which to evaluate effectiveness of TMDLs or other remediation programs to reach short and long-term goals. Specific Actions Establish monthly or other regular waste load allocation goals under Porter-Cologne, with enforceable fines attached to drive progress. Establish annual reporting, triggers for next actions, and monitoring. Improve ambient water quality monitoring in order to identify trending problems and assess progress of restoration efforts. Integrate adaptive management into implementation plans to allow for new strategies and technology as new information comes to light. Create a TMDL follow-up policy and revision process. This could include a reanalysis of available science every 5 10 years to determine if an allocation scheme is still appropriate or requires updating. Implementation Options Develop stand alone State Board policy for evaluation and reporting on TMDL progress or integrate into revised TMDL standards. of remedial measures and will avoid waiting for long term results that demonstrate their inadequacy. ISSUE #10: The water boards lack proactive programs to address emerging contaminants. Between 80,000 and 100,000 chemicals are currently in commercial use and some of them are being detected in waterways with deleterious effects. It is reasonable to project that this growing awareness of emerging contaminants will lead to further listings of water segments on the 303(d) list and a situation by which California will be unable to keep up with water quality violations. Common sense dictates that preventing pollution at the source will be essential not only to remediate already contaminated waters, but also to stop emerging contaminants from becoming serious enough to lead to future 303(d) listings. Such proactive solutions are more effective than cleanup and can save water agencies and the State millions of dollars in cleanup costs. California s Green Chemistry Initiative provides one opportunity for the water boards to work with the Department of Toxic Substances Control to identify chemicals and products containing them that pose a serious threat to the State s waters. However, since water quality is only one of numerous endpoints that the Green Chemistry Initiative must consider, the water boards will have to put more emphasis on pollution prevention initiatives, including influencing the use of toxic chemicals within watersheds. RECOMMENDATION #10: Expand the water boards authority to ban products or limit the use of specific toxic chemicals. The various water boards, or at minimum the State Board, should be given a level of direct authority to restrict the use of toxic materials within watersheds that are impacting water quality. There is precedent with the California Air Resources Board and there have been cases when water agencies have had to go to the Air Board for help in stopping a particular pollution source. Given these synergies and the current budget realities, it is recommended that the two Boards work together under one regulatory authority to restrict the use of specific environmental toxins. 35

40 TABLE #10: The water boards lack proactive programs to address emerging contaminants. Recommendation #10(a): Identify and regulate the use of chemicals impacting water quality through California s Safer Consumer Products regulations. #10(b): Expand the water boards authority to ban products or limit the use of specific toxic chemicals within an impacted area when the use of such products or substances is found to impact local water. Specific Actions Create a process by which the Regional Boards, coordinated by the State Board, make annual recommendations to Department of Toxic Substances Control staff of chemicals and products containing those chemicals that should undergo review through the Safe Consumer Products regulations. Reform Porter-Cologne to provide this authority to the water boards, or at minimum to the State Board, potentially working in conjunction with the California Air Resources Board. Implementation Options Work with the State Board to develop a priority list of pollution prevention programs. Work with Department of Toxic Substances Control and State Board staff to establish a mechanism by which the water boards make recommendations related to the Safer Consumer Products regulations. Legislative action to enhance the boards authority. ISSUE #11: Limited resources impact TMDL development and evaluation, as well as pollution prevention. Despite calls by a 2001 legislatively mandated report for adequate resources to be made available to the water boards in order for them to perform optimally in developing TMDLs, the reality is that in the current economic environment, budgets will continue to be constrained.* Limited resources impact how TMDLs are prioritized and result in failure to evaluate remediation programs, less public participation, narrow cleanup activities, and less enforcement. In addition, preventative actions, such as focusing on emerging contaminants and pollution prevention are not budgeted for, ensuring greater environmental problems and higher costs in the future. While these are very real impediments, the lack of funds should not be an excuse for a lack of action regarding water quality in California. The goal must be to identify new funding sources and to use current resources more effectively. Many of the recommendations in this report respond to the funding problem, such as taking a more efficient and effective watershed approach to impaired waterbodies and considering statewide programs to address specific contaminants. Tapping into local watershed groups who can be the eyes and ears on the ground and collect necessary data on pollution sources would promote public participation and be a more equitable use of funds. The State Board should also seek money saving efficiencies by making enforcement agreements with other agencies, such as Fish and * AB 982 Public Advisory Group, Report on the Structure and Effectiveness of California s Efforts to Develop Total Maximum Daily Loads (TMDLs) to Restore Impaired Waters and Recommendations for Future Policy Development, 2001, pp. 10, 31. In 1999, the state Legislature passed AB 982 (Ducheny), directing the Water Board to create an advisory board to evaluate California s program to implement Section 303(d) of the Federal Clean Water Act (See Executive Summary). The advisory group consisted of environmentalists, industrial dischargers, municipal government, agriculture, etc. 36

41 TABLE #11: Impacts of limited resources on TMDL effectiveness and pollution prevention. Recommendation Specific Actions Implementation Options #11: Implement a fee structure by which dischargers fund TMDL or other remediation programs as well as pollution prevention. Create a discharger fee system or reimbursement program for entities responsible for both point and non-point pollution. Work with the State Board to define such a discharger supported funding mechanism and parameters for how monies are spent to avoid undue influence. Develop further legislation to support the water boards fee/reimbursement authority if necessary. Game, which has authority over clean water under the Fish and Game Code, Section 5650 and personnel in place within many of the State s watersheds. 34 Perhaps the most important and socially just tool is to implement a robust polluter pay policy, by which dischargers support development and implementation of water remediation and pollution prevention through a regulatory fee structure. While it is not unusual for dischargers to provide either funds, or in-kind resources for TMDL related studies or stakeholder processes, using a fee structure provides more assurance to the public that these parties do not exert undue influence on the resultant implementation plans. RECOMMENDATION #11: Create a discharger fee system or reimbursement program for TMDL or other remediation programs, promotion of public participation, and pollution prevention effforts. The water boards benefitted from the 2011 passage of AB 95, which gives them the authority to use Waste Discharge Permit Fund fees to pay for basin planning activities, including those related to TMDLs.* These monies should be used by the Boards to implement water cleanup efforts and pollution prevention, as well as evaluation and revision of remediation efforts. This includes funding processes to facilitate broad public input on the plans. Furthermore, a fee structure should be established for non-point sources, stormwater agencies, and agricultural facilities being regulated under a regional waiver program. Dischargers have a financial responsibility toward the creation and implementation of programs to address pollutants for which they are at least in part responsible. However, the public interest would not be well-served by expanding discharger influence over the process by having them directly financing TMDL studies and regulatory plans that they help identify or design. Explicit parameters would need to be put in place that would ensure that dischargers could not control the process or how the money is spent. For example, a discharger fee or reimbursement system might be used by the Regional Board to finance the development of remediation programs and facilitate public participation in TMDL decision-making processes. * See section 13260(d)(1)(C). The bill adds adopting, reviewing, and revising water quality control plans and state policies for water quality control to the items defined as recoverable costs. bill_ _chaptered.pdf. 37

42 Conclusion California s water history is made up of technological wonders. The tons of gold and silver carved out of the Sierras, the draining of Owens Valley, the California Water Project, and the building of Hetch Hetchy are all extraordinary feats that drove the very formation of the State, provided water to one of the nation s largest cities, and made a desert into the world s most productive agricultural region. They also created severe environmental problems, including cataclysmic levels of mercury in San Francisco Bay and the waters that flow into it, strained water resources and ecosystem collapses in the Delta, massive amounts of nitrates and pesticides in both surface and groundwater serving millions of Californians, and modern industrial and societal pollution outputs as the State s population continues to swell. The water quality issues that these and other pollution sources have created are complex and costly. Not addressing them will only add to the complexity and ultimately to both the societal and financial cost. For these reasons, traditional TMDL processes are not sufficient by themselves to meet both federal and state water quality standards. The good news is that the State Board appears to be open to new strategies to address water contamination. But such strategies will only succeed if water agencies prioritize the basic needs of the watersheds, insist on remediation that optimizes pollution reduction, and are committed to enforcement of such requirements instead of so called balanced schemes by which dischargers do the minimum to comply with regulations and secure results that are mediocre at best. Furthermore, success will be predicated on meaningful participation by those representing the public interest, including recognition of the information they bring to the table as to the real world impacts of water contamination and the public support needed to ensure a robust and successful water quality program. Emphasis needs to be put on implementation, with a focus on pilot programs and investigation of strategies employed in other parts of the country or world to address similar problems, and the sharing of information by which cleanup strategies can be adapted over time. Finally, it must be recognized that all Californians, whether they are impacted community members, regulators, or dischargers, have a role in returning the state s waters to health. Dischargers need to understand that even when the bulk of a particular problem results from historical sources, they bear the burden of reducing and mitigating their contributions. Regulators need to remember that they are tasked first and foremost with protecting the water. The public needs to do their part to reduce their contributions of water pollutants. Finally, community groups and public interest organizations should facilitate public engagement and educate the public about the significant benefits provided by healthy waterways and ecosystems in California. 38

43 Notes 1 See (j) 4 State Board, Resolution , Remanding an Amendment to the Water Quality Control Plan for the San Francisco Bay Region to Incorporate a Total Maximum Daily Load (TMDL) for Mercury in San Francisco Bay, p.2. board_decisions/adopted_orders/resolutions/2005/rs pdf 5 Quoted from Concur website: 6 Resolution R , Bullet 28, page USCODE-2010-title33-chap (a)(1) Federal Water Pollution Control Amendments of 1972, P.L , 86 Stat. 816 (1972) 11 Porter-Cologne Water Quality Control Act, California Water Code Division 7. Water Quality. An official copy of the current Water Code, including Porter-Cologne and its amendments since original passage, is available at 12 California State Water Resources Control Board, State of California S.B. 469 TMDL Guidance: A Process for Addressing Impaired Waters in California, June California State Water Resources Control Board, State of California S.B. 469 TMDL Guidance: A Process for Addressing Impaired Waters in California, June California State Water Resources Control Board, State of California S.B. 469 TMDL Guidance: A Process for Addressing Impaired Waters in California, June The California Water Boards, 2010 Update to Strategic Plan , June 2010, Appendix 1, page California Health and Safety Code (i) 21 Item 31, 22 California Water Code California Water Code Ibid. 25 California State Water Resources Control Board, State of California SB 469 TMDL Guidance: A Process for Addressing Impaired Waters in California, June 2005, Porter-Cologne, Section Porter-Cologne, Chapter 4, See 29 Ibid. 30 Porter-Cologne Water Quality Control Act, (c) page The Environmental Justice Coalition for Water, Thirsty for Justice: A People s Blueprint for California Water. June 2005, pp California Impaired Waters Guidance, section

44 Appendix 1: Participant Survey TMDL RESEARCH PROJECT SURVEY 1. What do you see as the purpose of a TMDL, particularly in relation to beneficial uses of California s waterbodies? 2. How effective do you think the TMDL process is in California in establishing plans to remediate our impaired waters? 3. If you think the process is not optimally effective, what are the typical problems with the resultant TMDLs and implementation plans? (For example, are the goals established by the TMDLs adequate? Are the load allocations adequate? Do the implementation plans ensure real change in water quality?) 4. What do you think are the major systemic problems in the state s TMDL process that interfere with establishing adequate TMDLs and ensuring proper implementation? 5. What policies do we need to establish in order to correct these problems and what opportunities do you see to make these improvements? 6. Are you interested in being part of a larger, collaborative discussion with other interested parties in identifying and promoting solutions to improve how California addresses impaired waterbodies? To what degree? 7. Who else should be part of this discussion? 40

45 Appendix 2: Tables 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. 41

46 TABLE #2: Stakeholder processes fail to include meaningful public participation that lead to effective remediation plans. Recommendation #2(a): Develop public participation policy and strategy to promote broader input by groups and individuals working on behalf of the public interest, particularly impacted communities. #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. Specific Actions Ensure equipment works properly when depending on phone access for those who cannot travel to meetings. Hold meetings at accessible times. Expand geographic accessibility. Create models for how to value and weigh community input that avoid marginalizing it. Develop expedient models for stakeholder process. For example, start process with working draft document created by Regional Board for stakeholder input, which can then be crafted into implementable form based on the input received (similar to developing Maximum Contaminant Levels and Public Health Goals for drinking water). Vet compromises openly, requiring transparency about how they were achieved and opposing points of view. Demonstrate that compromises only pertain to implementation options and not the science or goals of a TMDL. Present majority and minority views to both the Regional and State Water Boards when seeking TMDL or other cleanup plan approval, and explain how opposing interests are weighted.* Hold decision makers accountable by requiring explanation as to why particular scientific findings are or are not relied upon in regulatory decisions. Provide clear explanation of decisions and regulatory actions associated with them.** Drafting of TMDLs can only be performed by Board staff. Require that consultants be limited to providing technical and background research and dischargers be limited to providing public comment like other stakeholders. Establish policies that encourage the Regional or State Water Boards to contract with organizations located within the watershed to collect data and do monitoring, including qualified non-profit and/or public interest groups and tribes. Implementation Options State Board develops guidance for staff regarding stakeholder processes, public participation, and transparent decision-making. State Board develops guidance ensuring that staff develop TMDL substantive provisions, as opposed to consultants or dischargers. Water Board establishes requirement that local experts be used as consultants, when available. Legislative action to revise state contracting rules. 42

47 TABLE #3: Decisions are 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 TMDL and implementation plans prioritize public and environmental health. #3(b): Ensure proper prioritization and timely action for 303(d) listed waters by Regional Boards. Specific Actions All pollution sources, no matter how significant, should be addressed. Pollution reduction and prevention requirements should be as stringent as possible, taking into consideration that waters on the 303(d) list have zero assimilative capacity for further contamination. Costs to dischargers, including public entities such as municipal waste and stormwater agencies, should not be considered when developing permit and other pollution control or cleanup requirements. Furthermore, any financial analysis related to remediation programs must include external costs such as health costs to the community, the cost of alternative water for drinking and cooking, costs of alternative food when waters are not fishable, lost time at school or work, etc. Require TMDLs be based on current science so process cannot be stalled by requiring additional research. Adaptive implementation should be built into implementation plans to allow for change based on new data. Enforce existing state policies to ensure timely prioritization and action on the most egregious impairments. Create accountability mechanisms to track resources used by Regional Boards on TMDL development and ensure they set targets based on greatest threats (could be tied to the State Board s performance report). Address all discharges (standards should provide clear parameters for exemptions). This includes a requirement that if air is a pathway, the Air Board must take action. Water Board should enforce timely implementation of TMDLs. Implementation Options State Board develops policy, similar to San Francisco s precautionary principle ordinance, focused on public and environmental health, to guide decision making in remediating water pollution. Policy is integrated in a general set of standards for all TMDLs. Explore legislation to revise the water code so as to require a precautionary approach and/or consideration of external costs to society. Adopt Board policy to implement listed actions (either as a stand-alone policy or integrated into standards). Create agreements between the Water Boards and other state agencies to implement monitoring, remediation, and pollution prevention. Legislation. 43

48 TABLE #4: Composition of water boards influences TMDLs and implementation plans. Recommendation #4(a): Reform water board membership to limit influence of regulated community and promote greater public influence in actual decision making. #4(b): Create state guidance regarding how decisions are to be made by Regional Board staff in developing remediation projects. Specific Actions Prohibit membership of regulated constituencies on water boards. Limit regulated community participation in TDML development to stakeholder status, and not as members of Regional or State boards. Include a seat on the Regional Boards for members from communities impacted by water quality impairment, particularly low income communities and communities of color. Provide training on technical issues and adequate compensation. Develop or update guidance on decision-making priorities for Regional Board staff. Implementation Options Legislative action or work with Governor s office to further reform composition of water boards. Develop technical training program for board members, especially those representing community interests. Regional and/or State Water Boards establish guidance. TABLE #5: The approval process for TMDLs is lengthy and cumbersome. Recommendation #5(a): Allow the State Board some discretion to revise a TMDL. Specific Actions Allow the State Board to revise a TMDL that comes before it so that it is not limited to either approving a flawed TMDL or remanding it. Implementation Options State Board adopts a policy regarding TMDL approval. Legislative action if necessary. #5(b): Allow Regional Boards to adopt a TMDL subject to a petition for review. Revise approval process so that when a TMDL is adopted by a Regional Board, it is deemed approved by the State Board unless a petition for review is made within 30 days. State Board adopts a policy regarding TMDL approval. 44

49 TABLE #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. Specific Actions In developing an implementation plan, first determine the maximum reduction that can be achieved. Begin with the beneficial use of the waterbody, describe the gap due to contamination, and outline how to remediate the problem based on available science. Engage the Air Board in identifying actions to stop or reduce air pollutant deposition when applicable. Reduce resistance to implementation by demonstrating how reduction requirements make a difference such that dischargers understand why they are being asked to take a specific action. Instead of establishing the waste load allocation as an end result within a given time, have interim waste load allocations that provide early information about effectiveness of remedial measures and allow for flexible response. This is more likely to achieve results than waiting until the end to hold responsible parties accountable. Establish 3 key mile-posts: description of potential effective actions, implementation of actions, and evaluation of health and ecological outcomes. Require that implementation plans include clear, publicly vetted performance guidelines. Consider non-tmdl strategies to reach water quality goals (see Issue 1). Integrate phasing, tiered strategies, innovations like exposure reduction for impacted communities, and pilot testing of new pollution reduction and/or prevention technologies. Implementation Options State Board establishes a policy and guidance for focusing on implementation early in the process. Regional Boards and local stakeholders establish such a process for specific TMDLs in order to establish a successful model. 45

50 TABLE #7: Inadequate goals and actions to revive or maintain water quality. Recommendation #7(a): Revise minimum standards for TMDLs. #7(b): Adopt new statewide beneficial uses to protect all Californians. Specific Actions Establish a task force of water board personnel and public stakeholders to revise minimum TMDL standards. Such revisions should include, but are not limited to the following: Collect data on local fish consumption rates as part of TMDL development when impairment is based on fishability. Base assumptions on what is achievable to protect and restore beneficial uses on science, not on subjective opinions. If Regional Board staff believes it is not feasible to reach a particular beneficial use, they must provide scientific, peer reviewed evidence why that is the case. Fish tissue targets must reflect actual consumption rates and not what is currently seen as achievable. This should be based on an adaptive management model to allow for readjustment based on new data. Require dischargers to support the development of exposure reduction programs for subsistence fishers while remediation is taking place.* Build an ambient water quality baseline and monitor accordingly in order to identify trending problems and assess progress of restoration efforts. Require toxicity testing and evaluation as part of ambient water monitoring in order to identify sources of water contaminant problems, better assess the state of the water, and capture cumulative impacts. Incorporate data on flow impacts on water quality into TMDL development. Integrate adaptive management into all TMDLs to ascertain if better science and/or additional data validate the current analyses or whether new information is available to update the TMDL. Beneficial uses should be determined independently from economic considerations and technical feasibility. Establish state-wide subsistence fishing and tribal cultural uses as beneficial uses that must be protected and addressed by TMDLs or other remediation plans, including past traditions tribes seek to revive. Implementation Options State Board revises guidance for addressing impaired waters. State Board institutes potential new requirements for TMDL development on an individual bases. State Board adopts both beneficial uses for all of California. Legislative action to revise Porter-Cologne and establish new beneficial uses if State Board takes no action. 46

51 TABLE #8: Enforcement tools for non-point sources are limited. Recommendation #8: Create enforcement mechanism(s) for various sources of non-point pollution. Specific Actions Revise Porter-Cologne to allow Regional Boards to impose and enforce required actions on non-point sources similar to those included in NPDES permits for point sources. Regulate runoff from agricultural lands by developing best practices to reduce fertilizer use and monitoring requirements for nitrate runoff above ground to identify both surface and groundwater impacts. Ensure permits (for both point and non-point) include clear guidelines for plans that dischargers must develop, implement, and evaluate Implementation Options Work at Regional and State Board levels on related regulations. TABLE #9: Evaluation of TMDL effectiveness is limited or non-existent. Recommendation #9: Establish programs by which to evaluate effectiveness of TMDLs or other remediation programs to reach short and long-term goals. Specific Actions Establish monthly or other regular waste load allocation goals under Porter-Cologne, with enforceable fines attached to drive progress. Establish annual reporting, triggers for next actions, and monitoring. Improve ambient water quality monitoring in order to identify trending problems and assess progress of restoration efforts. Integrate adaptive management into implementation plans to allow for new strategies and technology as new information comes to light. Create a TMDL follow-up policy and revision process. This could include a reanalysis of available science every 5 10 years to determine if an allocation scheme is still appropriate or requires updating. Implementation Options Develop stand alone State Board policy for evaluation and reporting on TMDL progress or integrate into revised TMDL standards. 47

52 TABLE #10: The water boards lack proactive programs to address emerging contaminants. Recommendation #10(a): Identify and regulate the use of chemicals impacting water quality through California s Safer Consumer Products regulations. #10(b): Expand the water boards authority to ban products or limit the use of specific toxic chemicals within an impacted area when the use of such products or substances is found to impact local water. Specific Actions Create a process by which the Regional Boards, coordinated by the State Board, make annual recommendations to Department of Toxic Substances Control staff of chemicals and products containing those chemicals that should undergo review through the Safe Consumer Products regulations. Reform Porter-Cologne to provide this authority to the water boards, or at minimum to the State Board, potentially working in conjunction with the California Air Resources Board. Implementation Options Work with the State Board to develop a priority list of pollution prevention programs. Work with Department of Toxic Substances Control and State Board staff to establish a mechanism by which the water boards make recommendations related to the Safer Consumer Products regulations. Legislative action to enhance the boards authority. TABLE #11: Impacts of limited resources on TMDL effectiveness and pollution prevention. Recommendation Specific Actions Implementation Options #11: Implement a fee structure by which dischargers fund TMDL or other remediation programs as well as pollution prevention. Create a discharger fee system or reimbursement program for entities responsible for both point and non-point pollution. Work with the State Board to define such a discharger supported funding mechanism and parameters for how monies are spent to avoid undue influence. Develop further legislation to support the water boards fee/reimbursement authority if necessary. 48