Protections for Storm Water and Nonpoint Source Discharges

Attached is a Notice of Board Member Quorum for the California Ocean Plan, Areas of Special Biological Significance (ASBS)
Special Protections to Address Storm Water and Nonpoint Source Discharges commencing on August 15, 2006, in Monterey, California.

State Water Resources Control Board
Executive Office Tam M. Doduc, Board Chair
1001 I Street • Sacramento, California 95814
• (916) 341-5611
P.O. Box 100 • Sacramento, California • 95812-0100 Fax (916) 341-5621 www.waterboards.ca.gov
Linda S. Adams Secretary for Environmental Protection
Arnold Schwarzenegger Governor NOTICE OF BOARD MEMBER

QUORUM A quorum of the State Water Resources Control Board members may be present at the Public Scoping meeting for the California Ocean Plan, Areas of Special Biological Significance (ASBS) Special Protections to Address Storm Water and Nonpoint Source Discharges.
Tuesday – August 15, 2006 Monterey Conference Center
Steinbeck Forum Theater
One Portola Plaza
Monterey, CA 93940
Meeting Time – 9 a.m. – 12 p.m.

State Supreme Court Rules Counties Must Protect Coasts

by Steven Stein – THE GARDEN ISLAND

City and county governments have a responsibility to protect coastal waters, the Hawai Supreme Court has ruled.

In a 60-page unanimous decision issued Friday, the court delighted state environmental groups by requiring city and county governments to take an active role in coastal water regulation.

“This is a landmark decision,” said Judy Dalton, a Kauai Sierra Club spokesperson. “It puts counties on notice that yes indeed, they are responsible for what happens on our coastlines.”

The court justified its ruling by invoking Article XI, Section 7 of the state Constitution, which requires the conservation of coastal waters for the public.

“The courts have realized that the public-trust doctrine is a mandate in our Constitution that should finally give us some leverage to get the counties to comply,” Dalton said.

The ruling applies to the Hokulia resort development project near Kailua-Kona on the Big Island, which is owned by 1250 Oceanside Partners, a Honolulu development company.

In September 2000, heavy rains sent runoff from the development into nearby Kealakekua Bay, launching six years of conflict between Hokulia and local environmentalists.

On Oct. 30, 2000, the Kelly Plaintiffs, four Big Island environmentalists upset with the discharge into Kealakekua Bay, filed a complaint against Oceanside and the state Department of Health with the Big Island Circuit Court.

In 2002, Circuit Judge Ronald Ibarra sided with the Kelly Plaintiffs, ruling that the state and county had a responsibility to protect coastal waters near Hokulia.

Ibarra also found the state and county at fault for not protecting these waters. Although the high court’s ruling affirmed Ibarra’s decision to hold state and county governments responsible, it did not find the state and county at fault.

According to David Kimo Frankel, a lawyer for the Sierra Club who filed an amicus brief on behalf of Protect Keopuka Hana, a group of Native Hawaiian cultural practitioners and environmentalists who sued the state and Hawaii County, the state and county were let off the hook because “evidence wasn’t properly submitted.”

Representatives from Hokulia and the state and county were unavailable for comment yesterday.

Although the court’s ruling pleased Frankel, he said it will be difficult to enforce because of the state’s limited resources.

“We all know that the Department of Health and the Kauai Public Works Department don’t have enough staff to investigate and monitor developments to ensure they’re not polluting water quality,” Frankel said. “We’ll see if agencies take these responsibilities seriously. If the county and state don’t uphold the public-trust responsibility, there will be a lot more lawsuits.”

Proposed City Ordinance Requiring the Inspection and Repair of Sewer Lines

Pursuant to the October 2005 settlement agreement between the City and Northern California River Watch, Santa Rosa Utilities Department staff was required to recommend the adoption by the Council of an ordinance requiring the inspection of private laterals prior to the sale of property.

The recommended ordinance would require the inspection and repair, if necessary, of all laterals more than 10 years old upon the sale or transfer of real property. Staff will review the content of the recommended ordinance, which is attached to the staff report, and discuss various means of implementing the ordinance and the possible timing of such implementation.

Policy for Maintaining Instream Flows in Northern California Coastal Streams

The Division of Water Rights is in the process of preparing a State Water Board Policy for Maintaining Instream Flows in Northern California Coastal Streams. The proposed policy may affect water diversions in coastal streams in portions of Marin, Napa, Sonoma, Mendocino, and Humboldt Counties. Water Code Sections 1259.2 and 1259.4 require the State Water Board adopt the Policy by January 1, 2008. These Water Code sections were enacted by Assembly Bill 2121, which was signed by the Governor in September 2004. The Policy will be prepared in accordance with state policy for water quality control, which requires the preparation of environmental documents.
CEQA Scoping Meeting
Notice of Public Scoping Meeting (not available yet)
Notice of Preparation (not available yet)

To receive updates by e-mail regarding the Proposed Instream Flows Policy for Northern California Coastal Streams, subscribe on-line to the AB2121 Instream Flows Policy mailing list

More – with links:

Trout Unlimited’s and Peregrine Chapter of the National Audubon Society’s Petition for Timely and Effective Regulation of New Water Diversions in Central Coast Streams. (Project Dedicated Webpage)

GUIDELINES AND STUDIES

December 28, 2005 – Status of Pending Applications to Appropriate Water in the Counties of Marin, Napa, Sonoma, Mendocino, and Humboldt
September 22, 2005, State Water Resources Control Board Resolution 2005-0070 – Authorizing the Executive Director to Negotiate and Execute Contracts Responding to California Water Code Section 1259.4 (AB 2121) Regarding the Development of the Principles and Guidelines for State Policy for Water Quality Control for Northern Coastal Streams

USGS Evaluation of Methods Used for Estimating Selected Streamflow Statistics, and Flood Frequency and Magnitude, for Small Basins in North Coastal California

Guidelines for Maintaining Instream Flows to Protect Fisheries Resources Downstream of Water Diversions in Mid-California Coastal Stream

COASTAL STREAM WATERSHEDS

Napa River Watershed – [Under Construction]

Navarro River Watershed – [Under Construction]

Russian River Watershed

Alan Levine

State Court Backs Coho Protection Rules

John Driscoll The Times-Standard

A Sacramento court has upheld decisions by the California Fish and Game Commission to list coho salmon in Northern California as protected under state law.

Judge Gail Ohanesian in Sacramento Superior Court ruled late last week that the commission and the California Department of Fish and Game acted within the law to list the fish as endangered between San Francisco Bay and Punta Gorda, and as threatened above Punta Gorda to the Oregon border.

The case was brought by the California Forestry Association and others, including the Greater Eureka Chamber of Commerce. The plaintiffs contended that the 2002 and 2004 decisions by the state were an abuse of discretion and unsupported by evidence. They argued that the California Endangered Species Act doesn’t allow listing population segments of a species, as the federal Endangered Species Act does.

But Ohanesian said that there was no further definition of a species or subspecies under the state law, and noted the federal definition.

“The court finds that the concept of ‘species’ is a scientific one, not a matter of common understanding among those not trained in biological science,” Ohanesian wrote.

She also wrote that the record contains a large amount of information that supports that coho has been removed, or is in serious decline, from its entire California range.

Conservation groups who intervened in the case said they hoped the decision would allow industry and environmental interests to work together to restore coho salmon.

“This was a biologically sound decision,” said Tom Weseloh with California Trout. “Now the courts have said it’s not only biologically sound but also legal.”

J Warren Hockaday, executive director of the Eureka Chamber of Commerce, said the board believed that the state listing was duplicative of existing federal regulations. It joined the suit as a show of support for the timber industry, Hockaday said, concerned that some of its members would see significant costs from the state’s actions.

Ohanesian found that the state acted according to its policy because federal protection had not proven adequate to prevent the decline of coho.

The California Forestry Association did not return the Times- Standard’s phone call by deadline.

Anderson’s Conflict of Interest on the Regional Water Board

Hi everyone:

For many months I have been receiving information from Alan Levine about the serious conflict of interest issue with Regional Board appointees. The law clearly states that appointees should not receive more than 10% of their income from NPDES permit holders either directly or indirectly. About six appointees have lost their seats in the last two years because of having such conflicts. The most recent was Bev Wasson, who had served for over six years and had been Board Chair for one. It is a shame she lost her seat but we believe the rule is a fair and important one and should be enforced equally and consistently.

Unfortunately some State officials are trying to justify leaving Bob Anderson, lobbyist for United Winegrowers, in his recently appointed position (but not yet confirmed) as Regional Board member. Alan recently circulated many of the activities of United Winegrowers and it clearly indicates their bias in favor of permit holders such as the large vineyards and wineries. He has provided a great deal of information to justify opposition to this appointment.

My group, Russian River Watershed Protection Committee, and myself, and have thought long and hard about taking a public position in this matter. We have decided that it is important to do so. I attach here out letter to State Officials. We urge you to write your own letters, either as individuals, or as groups. You are welcome to use our letter as a template, if you wish, but please use your own letterhead. Or you can simply write that you support our letter, which was mailed two days ago (Five names and addresses appear in the letter). I believe that confirmation occurs sometime in August, so it is important to get something in within the next two weeks or so.

Please feel free to respond to me with questions and/or comments.

Brenda

_______________________________________________
Riverissues mailing list
Riverissues@lists.sonic.net
http://lists.sonic.net/mailman/listinfo/riverissues

US Supreme Court Rapanos (800kb pdf document)

Anderson’s Appointment to the Regional Water Board

This battle continues:

In a message dated 6/23/2006 8:36:16 AM Pacific Standard Time, alevine@mcn.org writes:

Below and Attached is a letter regarding the appointment of Bob Anderson to the Regional Board and related issues of conflict of interest arising out of Mr. Anderson’s employment – with Cc:’s

Read the letter and think about how Mr. Anderson’s appointment may effect pollution control programs in Region 1 – the North Coast. Then take appropriate action.

——————— Letter

June 20 , 2006

Daniel Maguire
Deputy Legal Affairs Secretary
Office of the Governor
Sacramento CA, 95814

Re: Bob Anderson’s Eligibility to Serve on the North Coast Regional Water Quality Control Board

Dear Mr Maguire,

Thank you for responding to our concerns on this matter. However, we disagree with your findings on issues related to conflicts in the case of Mr. Anderson.

Your arguments about why Mr. Anderson is eligible to serve on the RWQCB are not persuasive. You say (page 1, paragraph 3) “…it is unlikely that Mr. Anderson’s employment will result in a conflict of interest in a significant number of matters.” In your discussion, inclusive of the admission that Mr. Anderson’s income (salary) is passed through a trade association, United Winegrowers, and where the membership of this association includes many NPDES permit holders that have significant concerns related to the implementation of water pollution control programs; you fail to explain why a conflict unlikely.

In the next paragraph (Factual Background) you admit that Mr. Anderson works for United Winegrowers, and that more than ten percent of the association’s dues come from growers subject to NPDES permits. Then later in the document (Trade Association’s and Discussion pp. 5-6) you find that due to the fact that United Winegrowers holds no permit and that Mr. Anderson is not a Board member of the association, nor does he have ownership interest, that the 10% rule does not apply. Do you really mean to say that if one NPDES permit holder employees an agent, that agent will have a conflict of interest, but if a number of NPDES permit holders join together and hire and agent, the conflict magically disappears?

You say (page 2, paragraph 2) “United Winegrowers board of directors sets his salary.” What criteria does the board use in setting the salary? Might it possibly be his effectiveness in protecting Sonoma wine growers’ interests? Might these interests not conflict with protecting overall water quality?

1APPLICABLE LAW

You identify as applicable law 33 U.S.C. 1314 (Section 304 of the Clean Water Act). According to you this statute says, “no board approving NPDES permit applications shall include as a member a person who receives…a significant portion of his or her income directly on indirectly from permit holders or applicants.” Mr. Anderson does receive a significant portion of his income directly on indirectly from permit holders.

There is other applicable law. California law is clear and simple. In pertinent part:

1) Cal Wat Code § 13388
§13388. Notwithstanding any other provision of this division or Section 175, no person shall be a member of the state board or a regional board if he receives or has received during the previous two years a significant portion of his income directly or indirectly from any person subject to waste discharge requirements or applicants for waste discharge requirements pursuant to this chapter.

2) Cal Wat Code § 132207
§ 13207. Member’s personal interest precluding participation in board action; Judicial proceedings for removal from office after violation

(a) No member of a regional board shall participate in any board action pursuant to Article 4 (commencing with Section 13260) of Chapter 4, or Article 1 (commencing with Section 13300) of Chapter 5, of this division which involves himself or herself or any waste discharger with which he or she is connected as a director, officer or employee, or in which he or she has a financial interest in the decision within the meaning of Section 87103 of the Government Code.
(b) No board member shall participate in any proceeding before any regional board or the state board as a consultant or in any other capacity on behalf of any waste discharger.

3) Cal Gov Code § 87103 (2003)

§ 87103. Financial interest

A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following:

(a) Any business entity in which the public official has a direct or indirect investment worth two thousand dollars ($ 2,000) or more.

(b) Any real property in which the public official has a direct or indirect interest worth two thousand dollars ($ 2,000) or more.

INCOME

As you point out the meaning of “indirect” is not carefully spelled out, but whatever way you want to slice it, numerous NPDES permit holders added together paying their own private organization to pay Mr. Anderson, looks like indirect income to the unbiased eye. As you pointed out in your footnote, it also looks like indirect income in the eyes of the Legislative Council where they found that “employment income from a trade association whose members were permittees does count as income from a permittee”.

According to California Government Code, salary is income.

§ 82030. “Income”

(a) “Income” means, except as provided in subdivision (b), a payment received, including but not limited to any salary, wage, advance, dividend, interest, rent, proceeds from any sale, gift, including any gift of food or beverage, loan, forgiveness or payment of indebtedness received by the filer, reimbursement for expenses, per diem, or contribution to an insurance or pension program paid by any person other than an employer, and including any community property interest in the income of a spouse…
Cal Gov Code § 82030 (2006) in pertinent part [emphasis added].

You say the USEPA’s general counsel drew a distinction between salaried employees versus persons with an ownership interest. This is less to the point that what the USEPA had to say about the Clean Water Act/Porter Cologne Act 10-percent Rule for NPDES Conflicts:

USEPA guidance in February 14, 1973 addressed numerous issues related to the conflicts rule:
Memorandum from John R Quarles, Jr (USEPA General Counsel) to All Regional Counsels re Conflict of interest Provisions:
“It may be argued that such persons should not be disqualified if they have no connection with the management or operation of discharging facilities or budgetary decision-making that would affect such management. The conflict provisions makes no such distinction, however, nor can such a distinction reasonably be implied.”

The USEPA counsel have maintained that the Clean Water Act’s conflicts provisions are intentionally broad and cite the following excerpt from the Clean Water Act’s legislative history:
“Indeed, the only legislative history discussing this provision evidences the intent for broad application of this provision. In statements made during a House debate on the conference bill, Congressman Dingell stated that the intent of the conflict of interest provisions was to:
‘…wipe out industry representation on any water pollution control board or similar body that has anything to do with issuing, denying or conditioning permits…Even one such representative shall not be allowed because of the potential that the board will consider permits of which he has an interest.’” 1 Leg. Hist. 251

Applying the above principles, the income Mr. Anderson receives from United Winegrowers disqualifies him from sitting on the North Coast RWQCB.

CONFLICTS OF INTEREST

There is no denying the existence of conflict. Mr. Anderson is the agent of permit holders. He is employed to, and acts to, protect their interests. He sits on the regional water board to protect winegrowers’ interests.

There is no explanation, from your office, regarding how it is possible for a person, in the position of Mr. Anderson, to fulfill his obligation to protect the interests of United Winegrowers, and its members, and at the same time protect the interests of the citizens of the State of California and California’s Water Code and clean water programs.

You have stated, as a Board Member and considering his employment with United Windegrowers, Mr. Anderson must be sensitive to potential conflicts and recuse himself from deliberations in certain circumstances.

Mr. Anderson will find himself considering Waste Discharge Reports, Conditional Waivers from Waste Discharge Reporting, NPDES Permits for entities, Enforcement Actions, Cleanup and Abatement Orders, and Basin Plan Amendments. All of the aforementioned actions can, and will, have affects the operations of members of United Winegrowers. We would like disclosure (as a policy statement) on just what type of actions and deliberations that would require recusal on the part of Mr. Anderson.

Sincerely,

For Coast Action Group

Cc: Governor Arnold Schwarzenegger
Att: Appointments Secretary
State Capitol
Sacramento, CA 95814

Senate Natural Resources and Water Committee
Att. William Craven
State Capitol, Room 407
Sacramento, CA 95814

Office of Chief Counsel
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812

Attorney General’s Office
California Department of Justice
Attn: Public Inquiry Unit
P.O. Box 944255
Sacramento, CA 94244-2550

Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468

Phone: Week Days 707 542-4408
Weekends 707 882-2484

Clarification on Rapanos’ Supreme Court Decision

If you’ve not yet heard the Supreme Court decided Rapanos and Carabell, the opinion written by Scalia is one of the worst environmental decisions ever. It eliminates protection for 80% of all wetlands, most class 2 and all ephemeral streams. It reverses all the gains made over the past 20 years in protecting waters of the US from development and pollution. It was a 4-1-4 decision.

Scalia restricts waters of the US to those waters that always contain running water and wetlands that are contiguous with those waters and connected by surface flow only. A hydrological connection is insufficient to create adjacency. Scalia recognizes that these sources may be point sources. But then that shifts the burden to the plaintiff to prove that pollution is reaching the US water from these sources. A nearly impossible task in most cases.

Justice Kennedy voted to remand the cases for further fact finding under the Bayview standard to see if there exists a significant nexus between adjacent non-surface connected waterways. Arguable if there exists a significant nexus (which is yet to be defined clearly). An adjacent waterbody with only a hydrological connection would be considered a water of the US by Kennedy and thus the court would vote 5-4 in favor of such a decision.

Jack Silver

Water Capacity Charges for New Development

Dear Council and Staff:

First, I wish to congratulate you on your decision to address water supply for our new General Plan buildout through the use of dramatically increased water conservation and efficiency, and through the extensive use of recycled treated wastewater for irrigation to replace existing potable water demands. We greatly appreciate these efforts.

The benefits of this approach to the our ratepayers, to the Russian River and Eel River watersheds as well as to the overdrafted groundwater basins of Sonoma County, are immense and cannot be overstated. This is a substantial step forward towards accomplishing the State Water Resources Control Board’s Feb. 2, 2005 mandate to SCWA to “provide…a detailed plan of water conservation efforts that will offset future increases in demand, which in turn will result in no increase in Russian River diversions.”

As you go through the details on the proposed revisions to the increased water capacity charges for new development, and the increased demands for potable water created by this new and continued development, several issues arise.

In their Council meeting considerations of these changes to water capacity charges for new development, a number of Councilmembers and public speakers emphasized that the beneficiaries of this new water supply, ie, new development, should pay the entire costs of the “new” potable water supply made available to them for this growth, and that existing ratepayers should not be charged for the costs of providing this potable water.

The staff report states, “The water supply program… is designed to provide facilities to serve new customers. The total cost of the program in 2006 dollars through buildout of the General Plan is estimated at $55 million.” “Capacity charges recover costs for future projects that must be constructed to serve new growth, as well as the costs of capacity in existing facilities that will benefit and serve new customers.” (pg 3)

The Bartle Wells report (Attachment A) states that “The calculation is based on a buy-in of existing facilities, a proportionate share of projected future capital improvements, and the costs to suuport new water supply projects.”

The proposed Council Resolution notes in #2 and #3 that automatic inflationary adjustments to the costs of construction are included in the revised water capacity charges, and that significant changes to capital project costs, land use projections and or program costs would be accounted for by rate adjustments as needed.

I very much appreciate the efforts and direction to address changes in capital costs, and maintain the burden of those costs on the new development, as previously stated.

However, several other components of water system costs to provide supply for new development are also required in your adjustment of charges and considerations of existing ratepayers.

1. Any costs related to new, increased capacity to our Wastewater Treatment Plant attributable to this new development (particularly increased solids, BOD, and tertiary treatment capabilities) should be borne proportionately by the beneficiaries, ie, new development.

2. All O&M as well as program costs attributable to the infrastructure necessary to accommodate the new growth’s water supply should be likewise borne by the beneficiaries over their useful lifespan. This would include O&M for the new recycled water distribution system expansion.

3. A proportional share of the costs attributable to changed regulatory settings, fines, cost overruns, etc., in capital and O&M costs should likewise be shouldered by the beneficiaries of the new development.

4. The existing ratepayers should not assume any of the risks and associated costs attributable to the implementation of this program over its lifespan. The principle set by our General Plan, and confirmed by the Council, ie, “new development shall pay for itself”, must apply here.

5. Oversight of these costs, including independent audit, must be available to the ratepayers and public over the lifespan of the project, with a mechanism for adjustment of charges clearly established, to ensure achievement of the ratepayer protection objectives.

As we saw very importantly during the protracted development, evaluation and ultimate rejection by the PUC and later by the City of the contracts and MOU for a privatized wastewater treatment plant, the details of this Revised Water Capacity Charges must be sufficient and clear to protect the existing ratepayers from added risks.

Please let me know how the City expects to do this as it comes up with its final format for the Revised Water Capacity Charges. I hope that with full clarification of these issues and risks, the general public and ratepayers will provide very strong support for this program.

Thank you very much for your clarity and leadership as the City moves forward with this important work.

David Keller

High court splits over protecting wetlands

The Clean Water Act might not prevent building on them.

By Warren Richey
Staff writer of The Christian Science Monitor

WASHINGTON – The federal government does not have the power to reach far upstream to protect every ditch and wetland in a watershed.

In a ruling restricting federal authority to protect the environment, the US Supreme Court on Monday said the reach of federal regulators under the Clean Water Act is limited. But the high court’s nine justices were unable to reach majority agreement about how and where to draw those limits.

Continue reading “High court splits over protecting wetlands”