The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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July 15, 2005 The Water Report Urban Stormwater Recreational Use? "Tributary Rule" Application V. Reality Culvert Standard Economic Analysis In another example, many of Los Angeles' storm drains are enumerated expressly in the region's water quality control plan, including a vertical - walled, concrete -lined box culvert that runs three miles from downtown Los Angeles to Culver City (shown in the accompanying photo, previous page). Such listed storm drains historically have been regulated as if they were suitable for body- contact recreational uses, defined as follows: "Uses of water for recreational activities involving body contact with water, where ingestion of water is reasonably possible. These uses include, but are not limited to, swimming, wading, water - skiing, skin and scuba diving, surfing, white water activities, fishing, or use of natural hot springs." The Los Angeles regional water quality control board (the "regional board ") rejected its own staff's recommendation to modify the recreational use designation for the drain shown in the photo. Last year, however, the California State Water Resources Control Board (SWRCB) restored some common sense to policy by amending this designation.. In other cases, the regional boards have extrapolated water quality standards upstream into storm drains pursuant to the so- called "Tributary Rule" (the Tributary Rule is contained in many of California's regional water quality control plans).(8) Under the Tributary Rule, these agencies improperly assume that storm drains and other upstream drainages automatically have the same water quality standards as the downstream waters into which they drain. For example, the Tributary Rule in the Los Angeles water quality control plan states: "Those waters not specifically listed (generally smaller tributaries) are designated with the same beneficial uses as the streams, lakes, or reservoirs to which they are tributary. This is commonly referred to as the `tributary rule. "' The Tributary Rule is being used to regulate municipalities as if they are discharging to waters that constitute a source of public water supplies, or a place in which to swim, or a habitat for fisheries. The reality — known to the agencies — is demonstrably to the contrary. For example, on the basis of the Tributary Rule, Vacaville, a small city in the Central Valley of California, is being held to treatment standards for its wastewater plant based on protection of public water supplies and cold water fisheries. The reality is that the discharge is to a hydrologically modified creek dominated by treated wastewater and agricultural tailwater. Although regional board "staff considered the uses and concluded that they did not exist and were highly unlikely to exist in the future, "(9) on the basis of the Tributary Rule the agency applied these beneficial uses because of open waters many miles downstream of the plant's discharges.(10) Similarly, in 2001, drinking water and swimming standards for Newport Bay in Orange County were extrapolated upstream to a vertical - walled, fenced -off concrete box culvert draining downtown Santa Ana. Since the standards were not met within the box culvert, the regional board recommended the culvert be slated for a Total Maximum Daily Load ( "TMDL" — a CWA- derived pollutant load allowance). Fortunately, in February 2003, SWRCB rejected the regional board's TMDL recommendation. However, these examples reflect the tendency of the MS4 permit writers to improperly assert jurisdiction and standards to inland storm drainage structures. Unintended Consequences Review of the administrative record for the Los Angeles region water quality control plan reveals a major problem with applying the water quality standards to urban runoff. In short, the primary economic analysis by the agency to assess compliance costs was performed in the early 1970s — well before it was contemplated that urban runoff would be subject to the standards. In fact, urban runoff was purposely left out of the 1970s' economic analysis on the basis that it was an "uncontrollable nonpoint source," and was "impractical to attempt to treat. "(11) At that time, the California agencies considered urban runoff to be "nonpoint" in nature and thus not subject to the NPDES permitting required for point sources. THE LOS ANGELES REGIONAL BOARD STATED IN PERTINENT PART: "With respect to uncontrollable nonpoint sources, such as urban ... runoff, there may be certain things that the public can accomplish to lessen the impact, even though much of the effect is unavoidable. No specific nonpoint source control facilities are proposed ... It is impractical to attempt to treat runoff generally... No specific financial provisions are considered for the control of nonpoint sources of pollution." After Congress in 1987 directed that urban runoff be subject to NPDES permitting and control, the regional board did not undertake a meaningful economic analysis of what it would take to render urban runoff compliant with water quality standards. In general, regional boards typically assert that the BMPs specified in MS4 permits will somehow bring about compliance with water quality standards. However, there never has been a study identifying BMPs actually capable of rendering all urban runoff, or even a substantial portion thereof, consistently compliant with the standards. Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 3