HomeMy WebLinkAbout24 - ASBS Response LetterI
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CITY OF NEWPORT BEACH
MEMORANDUM
TO: Mayor Webb and Members of the City Council
FROM: Dave Kiff, Assistant City Manager
DATE: May 19, 2006
RE: Item # 24— ASBS Response Letter — REVISED
Attached is the staff report for the above - mentioned item. Please note that the
recommended actions are REVISED from the one printed in the earlier agenda. As
always, if you have any questions about this, please do not hesitate to give me a call
(949- 644 - 3002).
Dave
City Hall 9 3300 Newport Boulevard. Post Office Box 1768 • Newport Beach, California 92659 -1768
CITY OF NEWPORT BEACH •
CITY COUNCIL STAFF REPORT
Agenda Item No. 24
May 23, 2006
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
9491644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: Response to the State Water Resources Control Board (SWRCB)
regarding the Newport Beach Marine Life Refuge Area of Special
Biological Significance (ASBS)
REVISED STAFF REPORT AND
REVISED RECOMMENDED ACTIONS
ISSUE:
How should the City respond to an upcoming May 31, 2006 deadline to request an
"exception" to the California Ocean Plan for direct discharges into the Newport Beach •
Marine Life Refuge (MLR) "Area of Special Biological Significance" (ASBS)?
RECOMMENDATION:
1. Direct City staff to submit all relevant data to the State Water Resources Control
Board (SWRCB) relating to the Newport Beach MLR ASBS and the Irvine Coast
MLR ASBS: and
2. Authorize the Mayor to write a letter to the SWRCB stating the City's interest in
working within the SWRCB's Exception Process for the Newport Beach MLR ASBS
provided that the City's participation leads to an outcome within the Exception
Process is reasonable and attainable; and
3. Authorize City staff to work with other communities adjacent to ASBSs regarding
ways to protect ASBSs from adverse discharges even if such discharges do not
meet the so- called "zero- molecule" (of pollutants) rule.
DISCUSSION:
California has 34 Areas of Special Biological Significance (ASBSs) off of our coastline
(see the attachments for a map of all,34,areas). An ASBS is way to designate ocean
waters in manner that achieves special protection in light of critical activities - like •
Action Regarding Newport Beach ASBSs
May 23, 2006
Page 2
• dolphin breeding and birthing - that may happen there. The State Water Resources
Control Board (SWRCB) designates all ASBSs. The California Ocean Plan (adopted in
1972 and revised over time as a plan to manage California's offshore resources) directs
that "wastes shall not be discharged to areas designated as being of special biological
significance" and that any runoff into the ASBS is subject to discharge prohibitions
established by the SWRCB and its nine regional boards (RWQCBs).
Orange County has three ASBSs - two of which are adjacent to or within Newport
Beach's city limits:
• Newport Beach Marine Life Refuge ASBS
• Irvine Coast Marine Life Refuge ASBS, and the
• Heisler Park Ecological Reserve ASBS (in Laguna Beach)
In November 2000, the Santa Ana RWQCB issued a cease and desist order (CDO) to
various parties regarding the Irvine Coast Marine Life Refuge ASBS. The Irvine Coast
MLR ASBS receives drainage water from a portion of the Newport Coast development,
Pacific Coast Highway, Crystal Cove State Park, and the El Morro area.
The CDO directed that the parties "cease and desist" from new waste discharges
(including storm water and non -storm water runoff from developed areas) and from
existing discharges over the coming two years.. The State Board later amended the
• CDO to direct Caltrans to "cease and desist" within five years instead of two. Caltrans'
obligation has been constructed along PCH near the Crystal Cove Promenade
Shopping Center in the Newport Coast.
The ASBS off of Little Corona - the Newport Beach Marine Life Refuge ASBS ( #32) -
extends oceanward from Poppy Avenue to the easterly edge of Cameo Shores. The
ASBS' seaward boundary is 1000' from the beach (see map on the next page). A
SWRCB- commissioned survey shows that drainage into the Newport Beach ASBS
comes from 21 separate conveyances, including three natural watersheds (two of which
are Buck Gully and Morning Canyon) and 18 constructed conveyances, including small
property drains.
Following the City's annexation of the Newport Coast community, the City took limited
jurisdiction over about 2/3rds of a 2nd ASBS - the Irvine Coast Marine Life Refuge ASBS
( #33). This ASBS is shown on the map on Page 4 of this Staff Report. A SWRCB -
commissioned survey shows that drainage into the Irvine Coast ASBS comes from 32
separate conveyances, including 16 natural watersheds (the largest of which are Los
Trancos, Muddy Creek, and El Morro Canyon) and 16 constructed conveyances,
including small property drains and the drainage off of the Pelican Point residential
community.
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Action Regarding Newport Beach ASBSs
May 23, 2006
Page 3
Santa Ana Regional Water Quality Control Board
State Water Quality Protection Area
Area of Special Biological Significance No. 32
Newport Beach Marine Life Refuge
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Action Regarding Newport Beach ASBSs
May 23, 2006
Page 4
Santa Ana Regional Water Quality Control Board
State Water duality Protection Area
Area of Special Biological Significance No. 33
Irvine Coast Marina Life Refuge
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Division of Water Quality
January 2003
Action Regarding Newport Beach ASBSs
May 23, 2006
Page 5
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In October 2004, the City received a letter from the SWRCB that said:
"Your (the City's) discharge of stormwater (dry and wet weather runoff) into the Newport
Beach Marine Life Refuge Area of Special Biological Significance is subject to the
prohibition against waste discharges to an ASBS. "
Note that the letter did not instruct us to do anything regarding the Irvine Coast MLR
ASBS. Instead, California State Parks received a letter for the Irvine Coast MLR ASBS.
The SWRCB letter further told us that exceptions are granted in some cases and that
the City must tell the SWRCB what it intended to do (ask for an exception versus stop
direct discharges immediately) by January 1, 2005. Generally, the Ocean Plan has
been interpreted to prohibit direct discharges of waste into ASBSs. Direct discharges
are those which go down a constructed conveyance (storm drains, property drain pipes)
- not natural watersheds like Buck Gully or Morning Canyon. Natural watersheds are
typically regulated by the National Pollutant Discharge Elimination System (NPDES)
permits instead of the Ocean Plan's directives.
In late 2004, we asked the Council to allow us to ask the SWRCB for an exception to the
"no direct discharges to an ASBS" requirement. Council agreed at the time. Then -
Mayor Steve Bromberg sent the letter (see attachments).
Today, about 18 months later, we have embarked (with the City of Laguna Beach and •
California State Parks) upon a comprehensive plan to analyze and monitor the two local
ASBSs and the Heisler Park Ecological Reserve ASBS. State grant funds - of more
than $1 million - have assisted us in this analysis. In part, the analysis is an attempt to
show to the State that discharges of runoff into the two ASBSs are not causing
measurable adverse impacts to the coastal waters. The analysis and data (prepared by
Weston Solutions, Inc of Carlsbad, CA) is now in draft form and is being reviewed by
staff and by our stakeholder group, which includes a number of recognized experts in
marine protection.
We hope to be able to show the State that the area's resources are best spent on
reducing runoff in these ASBSs (via special irrigation controls and other best
management practices or "BMPs ") and cleaning up what runoff remains. The City
Council's recent discussions about Buck Gully and Morning Canyon (improving
conservation, adding ET controllers, limiting plantings to less- irrigation intensive
species, applying Fuel Modification Zones with California - friendly plant palettes, and
more) will be helpful in reducing - if not eliminating - dry weather flows.
The alternative - a complex and extremely expensive system of linking up private
property drainage pipes, cement step drainages, and City storm drains (and v- ditches)
into a constructed diversion that takes dry weather and storm flows into the wastewater
system - may be impossible to achieve. Indeed, such a system would necessarily •
involve re- designing and reconstructing the area's wastewater system to accommodate
Action Regarding Newport Beach ASBSs
May 23, 2006
Page 6
• both dry weather and storm flows. There may not be pipes nor easements large enough
to hold such storm flows.
In summary, we believe that the money spent on a diversion system - into the millions of
dollars - should be used to clean up flows from Buck Gully, Morning Canyon, the San
Diego Creek, and the Santa Ana River to the Maximum Extent Practicable ( "MEP ").
As noted, in late 2004, we thought that asking for an exception from the Ocean Plan's
prohibitions (called the "Exception Process ") should be an acceptable path to follow.
We still believe that this is the case, but with some important caveats and as a result of
recent conversations we have had with SWRCB staff.
Other area stakeholders have suggested to us that some SWRCB staff members and
other environmental advocates (advocates with whom we have agreed on many other
issues) have pressed the SWRCB to apply a "Zero - Molecule (of pollutants) Rule" - the
Rule generally says that it is possible (and therefore required) to achieve a discharge of
pristine water into each ASBS such that each discharge has zero molecules of
pollutants - in both dry weather and storm environments.
The agencies that have asked for (and received) exceptions thus far - the University of
California's Scripps Institution of Oceanography in San Diego and the University of
Southern California's Wrigley Marine Science Center on Catalina Island - will have to
• undergo an expensive monitoring program with the eventual goal of meeting the Ocean
Plan's limits. Therefore, some stakeholders point to the Scripps and USC examples and
say that that Exception Process is short-term, temporary, and expensive. They note that
both Scripps and USC have undergone complex CEQA work, public hearings before the
SWRCB, and significant .monitoring programs (monitoring that is somewhat less
expensive for them, since their services include ocean research and testing).
We have discussed the Zero - Molecule Rule with SWRCB staff, as recently as May 17t ",
2006. SWRCB staff say that they are not seeking a zero - pollution rule and are instead,
asking that, by the end of a full NPDES permit term (typically 5 years), the pollutant
direct discharges shall be consistent with similar discharges from non - urbanized
watersheds. This will not be easy to attain, but it is more attainable than the Zero -
Molecule Rule.
Following our conversations with SWRCB staff, we believe that the most proper course
of action is to continue to work with the SWRCB within the Exception Process. We
recommend this course out of respect this community's interest in protecting water
quality. We view our City as a leader in water quality protection statewide, and hope
that our participation will cause the SWRCB and others to objectively conclude that our
ASBS monitoring and resultant plan will protect the ASBSs to a level that meets
SWRCB standards.
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Action Regarding Newport Beach ASBSs
May 23, 2006
Page 7
That noted, we believe that the costs of fully eliminating all pollutants from direct •
discharges significantly outweigh the water quality benefits of these expenses. As such,
we will continue to assert with others that any attempts to apply a Zero - Molecule Rule
(instead of MEP or, arguably, meeting the baseline standard of a nearby non - urbanized
watershed) isn't practical nor attainable.
Finally we note that other entities (cities, counties, business alliances) — many of whom
who are arguably not as supportive of water quality protection as we are — have formed
coalitions attempting to influence the SWRCB in a way that is more in line with enacting
BMPs and achieving pollution reduction to MEP. If participation with these entities is
warranted, this Agenda Item seeks Council authorization to work with these entities to
ask the SWRCB to look at ASBS protection in a more cost - effective way. It is
unfortunate that decisions like these can come down to resources — but we cannot
recommend getting to zero - molecules of pollution into our ASBSs when so many other
water quality programs would suffer.
In summary, we believe that we have three options before us:
1. Agree to cease and desist all direct discharges into the Newport Beach MLR ASBS.
2. Participate in the Exception Process, provided that the end of the Process leads to an
outcome that reflects practical realities of our finances and our watersheds;
3. Not respond to the SWRCB's May 31, 2006 deadline, instead working with other entities
who are seeking alternatives to these two options. •
Staff recommends the second option.
Committee Action: The Coastal /Bay Water Quality Committee discussed this at its
November 18 "' meeting and expressed its concerns over meeting the Zero - Molecule
Rule, if applied.
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Submitted by:
(. \_.
Dave <i
Assistant City Manager
Attachments: Map of ASBSs Statewide
December 2004 Letter from Mayor Bromberg
Letter of August 18, 2005 from SWRCB •
Draft Letter from Mayor Webb to SWRCB
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Action Regarding Newport Beach ASBSs
May 23, 2006
Page 8
ASBSs Statewide
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CITY OF NEWPORT BEACH
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December 16, 2004
Ms. Celeste Cantu
Executive Director
State Water Resources Control Board
Post Office Box 100
Sacramento, California 95812 -0100
Re: PROHIBITION OF WASTE DISCHARGES INTO THE NEWPORT BEACH
MARINE LIFE REFUGE AREA OF SPECIAL BIOLOGICAL
SIGNIFICANCE
Dear Ms. Cantu:
This letter responds to your letter of October 18, 2004 regarding the Newport •
Beach Marine Life Refuge ASBS. The City hereby notifies you and the Board
that it will seek an exception to the prohibition of wet weather and dry weather
stormwater flows into this ASBS.
We look forward to working with the State Board on this matter in the coming
year. If you have any questions about this letter, please contact Dave Kiff,
Assistant City Manager, at 949- 644 -3002.
Sincerely,
Mayor of Newport Beach
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City Hall • 3300 Newport Boulevard • Post Office Box 1768
Newport Beach, California 92658 -8915 • www.city.newport- beach.ca.us
State Water Resources Control Board
C Lloyd, Ph.D.
Agency Secretary
August 18, 2005
Division of Water Quality
19014 Stmot -^Saawnento,CaEfomia 95814- (916) 3415455
Mailing Address: P.O. Box 100 • Sacramento, California - 95812 -0100
FAX (916) 341 -5463 - Internet Address: hnp: / /www.waterboards.ca.gov
The Honorable Steven Bromberg
Mayor of City of Newport Beach
City Hall
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
Dear Mayor Bromberg:
REQUEST FOR EXCEPTION FOR DISCHARGES INTO AREAS OF SPECIAL
BIOLOGICAL SIGNIFICANCE
Arnold Schwanenegger
Governor
This letter is to acknowledge the receipt by the State Water Resources Control Board (State
• Water Board) of your letter dated December 16, 2004, requesting an exception from the
California Ocean Plan (Ocean Plan) waste discharge prohibition for your discharges into the
Newport Beach (a.k.a. Robert E. Badham) Area of Special Biological Significance (ASBS). The
following specific information needs to be submitted, by May 31, 2006, to support the State
Water Board's consideration of an exception to the Ocean Plan for discharges to ASBS:
1. The discharger's name, address, and contact information.
2. Any applicable permit or order numbers, if the discharge is or has been regulated under a
National Pollutant Discharge Elimination System (NPDES) Permit or Waste Discharge
Requirements. .
3. A signed statement requesting coverage under an exception from the ASBS waste discharge
prohibition found in Sections RI.E.1 and RI.H.2 of the Ocean Plan.
4. Documentation that shows that allowing the discharge of storm water runoff to continue will
not compromise protection of ocean waters for beneficial uses. Note that one beneficial use
is the preservation and enhancement of ASBS, which are defined as "those areas designated
by the [State Water Board] as requiring protection of species or biological communities to the
extent that alteration of natural water quality is undesirable." This means that any data that
you may have on the status and description of marine life in the ASBS, and on the natural
background of the ASBS, are relevant and must be submitted. At a minimum, you must
submit a quantitative description of marine life near the discharge and at a reference location
away from the discharge.
5. An assessment of all available historical data on discharge volume, chemical and physical
constituents, toxicity, and indicator bacteria in the runoff and in the ambient marine water of
the ASBS. At a minimum, the information must include the measurement of a representative
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California Environmehtal Protection Agency
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Mayor Steven Bromberg -2- •
sample within the last two years or the upcoming storm season (runoff and adjacent marine
receiving water) during a storm event for each of the following constituents:
a. total Ocean Plan metals
b. polynuclear aromatic hydrocarbons (PAHs)
c. oil and grease
d. ammonia nitrogen
e. acute toxicity for a marine species
f. critical life stage (chronic) toxicity for three marine species
g. indicator bacteria including total coliform, fecal coliform (or E. coli), and
enterococcus.
The applicable Ocean Plan detection limits and other applicable monitoring requirements
must be adhered to in performing this work. If you are responsible for more than
ten municipal discharge points, then a representative sample must be (or have been) collected
and analyzed for one of every ten discharge points. All samples must be collected during a
storm event that is greater than 0.1 inch and at least 72 hours from the previously measurable
storm event. Where feasible, the variance in the duration of the event and the total rainfall of
the event should not exceed 50 percent from the average or median rainfall event in that area.
6. A characterization of the watershed areas draining to the ASBS in terms of land use,
population density, and percentage of impervious surface. If there is land under your •
jurisdiction where pesticides or herbicides are applied, provide a listing of such treatments in
terms of the chemicals and application rates.
7. A description of current treatment processes, pollution controls, and/or best management
practices currently used or planned (with a schedule for implementation).
8. An analysis of alternatives to the discharge and their impacts if implemented.
9. Compliance history for drainages into the ASBS, including any spills or upset events that
resulted in the discharge of toxic or otherwise prohibited substances, including untreated or
partially treated wastewater.
10. Documentation that shows that the public interest will be served by granting the exception.
Please send this information to the State Water Board, Division of Water Quality, attention
Dominic Gregorio, and to the Executive Officer of the Santa Ana Regional Water Quality
Control Board (Santa Ana Water Board).
The State Water Board is holding a workshop in Monterey on August 31, 2005 to discuss the
ASBS exception process. At that workshop, staff will propose the concept of a general exception
as one option for addressing storm water runoff into ASBS. The exception process may be
amended following the workshop. However, any exception is likely to include minimizing or
eliminating dry weather flows, and reducing pollutants draining to ASBS to maintain natural
water quality in the receiving waters. In the meantime, you are requested to plan for and institute
best management practices to eliminate or minimize dry weather flows and to reduce pollutants
in storm water runoff.
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California EnvironmAtal Protection Agency
0 Recycled Paper
• Mayor Steven Bromberg -3-
If the State Water Board issues an exception, the Santa Ana Water Board may allow your
discharges to be�covere&undef theAMunicipaLSeparate Storm Sewer Systems Phase I NPDES
Permit, with appropriate provisions required in your storm water management plan.
In all cases, the Santa Ana Water Board will enforce the mitigation measures described in the
exception if it is granted by the State Water Board.
If you have any questions, feel free to contact me at (916) 341 -5458 or
smartinson@ waterboards.ca.gov, or Dominic Gregorio, Chief of the Ocean Standards Unit,
Division of Water Quality, at (916) 341 -5488 or dereeorio@ waterboards.ca.yov.
Sincerely,
Original signed by
Stan Martinson, Chief
Division of Water Quality
• cc: Mr. Gerard Thibeault, Executive Officer
Santa Ana Regional Water Quality Control Board
3737 Main St. Suite 500
Riverside, CA 92501
Bcc: Celeste Cantu, EXEC
Tom Howard, EXEC
Sheila Vassey, OCC
John Ladd, DWQ
Bruce Fujimoto, DWQ
Dominic Gregorio, DWQ
\tdwgdatatdata\Dam % bmedVYrHER\SecMim wata Section \oceao\ASBS city of Newport Beach.dac
• California Environmental Protection Agency
rrj Recycled Paper
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DRAFT LETTER
May 31, 2006
Mr. Dominic Gregorio, Ocean Standards Unit
Division of Water Quality
State Water Resources Control Board, Division of Water Quality
Post Office Box 100
Sacramento, CA 95812
RE: Newport Beach Marine Life Refuge ASBS
Dear Mr. Gregorio:
This letter is in response to the State Water Resource Control Board's ( SWRCB)
request to us of August 2005 to provide monitoring data and other information to the
Board regarding the Newport Beach Marine Life Refuge Area of Special Biological
Significance ( "Newport Beach MLR ASBS ") before a May 31, 2005 deadline. With this
letter, we express the City's intent to continue to participate in the "exception" (to the
California Ocean Plan) process.
However, I need to stress to you that the City has significant concerns about the •
exception process if it leads to an outcome that requires the City to either divert all
direct discharges to the Newport Beach MLR ASBS or that would require the
remediation of such discharges to a point where — in both dry and wet conditions — they
contain zero molecules of pollutants. Either outcome is extremely problematic — the
diversion of all discharges may be physically impossible given our geography and
infrastructure while the remediation to pristine conditions may be so prohibitively
expensive that essential City programs (including our comprehensive Water Quality
program for Newport Bay and our ocean shoreline) will have to be scaled back.
We believe that protecting the Newport Beach MLR ASBS is very important. We also
believe that we can achieve the correct level of protection with programs that are
sensible, practical, and implementable. We look forward to working with you and the
SWRCB to accomplish these programs.
Sincerely,
DON WEBB
Mayor of Newport Beach
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