02-01-2011 - Calling for Reasonable, Practicable, & Economically Achievable Stormwater NPDES & TMDL Requirements`•
• City of West Covina
Memorandum
TO: Andrew G. Pasmant, City Manager
and City Council
FROM: Shannon A. Yauchzee, Director/City Engineer
Public Works Department
AGENDA
ITEM NO. 9
DATE February 1, 2011
SUBJECT: CALLING FOR REASONABLE, PRACTICABLE, AND ECONOMICALLY
ACHIEVABLE STORMWATER NPDES AND TMDL REQUIREMENTS
RECOMMENDATION:
It is recommended that the City Council adopt the following resolution:
RESOLUTION Nd� 0I A RESOLUTION OF THE CITY COI1NCIL
OF THE CITY OF WEST COVINA, CALIFORNIA, SUPPORTING A
RESOLUTION ADOPTED BY THE LEAGUE OF CALIFORNIA
CITIES, LOS ANGELES DIVISION, CALLING FOR REASONABLE,
PRACTICABLE, AND ECONOMICALLY ACHIEVABLE TMDL AND
MUNICIPAL NPDES PERMIT REQUIREMENTS
DISCUSSION:
Background
Since the early 1990's, the City of West Covina, along with 87 municipalities in Los Angeles
County, have been required to comply with municipal National Pollutant Discharge Elimination
System stormwater permit (NPDES permit) requirements. The Los Angeles Regional Water
Quality Control Board (Regional Board) is responsible for assuring municipal compliance with
NPDES permit requirements. NPDES permits are primarily authorized under the Federal Clean
Water Act and, to some extent, under the Porter -Cologne Act, the State's water code.
Basic Permit Requirements
The NPDES permit allows municipalities to discharge stormwater runoff from within their
jurisdictions to waters of the United States (typically oceans, lakes, and rivers), also referred to as
"receiving waters." The permit also allows the discharge of certain categories of non-
stormwater, such as potable water, irrigation water, and residential car wash water. In exchange,
the NPDES permit requires compliance with several program requirements that require the
implementation of Best Management Practices (BMPs) to reduce runoff pollution from
construction sites, completed development and redevelopment projects, and municipal operations
and activities (e.g., vehicle and equipment maintenance, storm drain and sewer maintenance, and
street maintenance). BMPs generally prevent stormwater contact with pollutants or treat them if
contact prevention is not possible.
Total Maximum Daily Loads (TMDLs)
A TMDL is a limit on the amount of a pollutant (e.g., bacteria, metals, nutrients, trash, and
dozens of others) that may enter receiving waters in order to protect their beneficial use (typically
recreation). The cost of complying with TMDLs is potentially staggering: in the several millions
of dollars annually, depending on the area of the municipality and watershed location (Los
Angeles River, San Gabriel River, Dominguez Channel, Machado Lake, Legg Lake, etc.). The
regulations could be overly burdensome to the City and to local businesses.
To date, several TMDLs have been adopted. In order for them to be binding on municipal
permittees, they have to be placed into the NPDES permit. Once this happens, subject cities
must comply with the TMDL's numeric limitation known as a "waste load allocation" (WLA).
The problem is that the Regional Board, in the several TMDLs that it has adopted thus far, plans
on requiring cities to strictly comply with the WLA in the receiving water through the
implementation of BMPs — beyond what Federal regulations call for. However, if the WLA is
NPDES—Staff Report
Andrew G. Pasmant, City Manage •
and City Council
Page 2 - February 1, 2011
not met, the non -compliant city will be subject to administrative enforcement from the Regional
Board, and, more seriously, third party. lawsuits from non -governmental environmental
organizations. A successful third party lawsuit against a city could result not only in costly fines
and legal fees, but is also likely to result in a settlement agreement requiring it to agree to use
general funds to pay for costly regional treatment facilities. As a consequence, vital programs
and services to our citizens will be placed at risk.
League Resolution
The Los Angeles Division League of California Cities has adopted a resolution declaring a policy
on TMDL compliance that would not require strict compliance with numeric 'limitations.
Instead, it calls for a TMDL regulatory approach in keeping with Federal stormwater regulations.
That approach allows compliance to be achieved through BMP implementation, but without
having to meet the TMDL's numeric waste load allocation. As long as the BMPs are being
implemented, compliance will be achieved — even if the WLA is not met. - The mechanism for
accomplishing this is known as a Water Quality Based Effluent Limitation (WQBEL). Federal
regulations require WQBELs to be used when TMDLs are effectuated through NPDES permits.
The Regional Board has ignored this requirement for reasons that are not clear. The Regional
Board does not have to follow Federal regulations here; it can rely on State law. However, if it
does, it will be creating an unfunded mandate.
City's Resolution
The proposed City resolution supports the position of the Los Angeles Division of the League of
California Cities. The proposed resolution also empowers the Mayor and the City Manager to
take actions necessary to promote reasonable compliance approaches to TMDL and NPDES
permit requirements. This includes lobbying State and Federal elected officials and, if necessary,
taking administrative and legal action, including but not limited to filing unfunded mandate
claims against the State. A copy of the resolution will be forwarded to City, County, Federal, and
State elected officials.
ALTERNATIVES:
An alternative is to not adopt this resolution. Other municipalities in Los Angeles County are
likely to adopt similar resolution. The more cities that adopt it, the more of an impression it will
make on State and Federal electeds and regulatory agencies. Not adopting the resolution would,
of course, lessen that impression to some extent.
FISCAL IMPACT:
There is no immediate fiscal impact associated with the action recommended herein. Its purpose
is to prevent regulatory agencies from requiring the City to expend scarce resources on TMDL
compliance without compensation from the State or Federal government.
Reviewed/Approved by: hannon A. Yauchzee
Director/City Engineer
Attachment No. 1 Resolution
Approved via Email
Reviewed/Approved by: City Attorney
NPDES-Staff Report
� Attacoent No. 1
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST
COVINA, CALIFORNIA, SUPPORTING A RESOLUTION ADOPTED
BY THE LEAGUE OF CALIFORNIA CITIES, LOS ANGELES
DIVISION, CALLING FOR REASONABLE, PRACTICABLE, AND
ECONOMICALLY ACHIEVABLE TMDL AND MUNICIPAL NPDES
PERMIT REQUIREMENTS
WHEREAS, on , the League of California Cities, Los Angeles
Division (hereinafter "League") adopted a resolution calling for reasonable, practicable,
and economically achievable Total Maximum Daily Load (TMDL) and municipal
National Pollutant Discharge Elimination System (NPDES) permit requirements "League
Resolution" (see exhibit "A");
WHEREAS, the League Resolution encourages the use of Water Quality Based
Effluent Limitations (WQBELs) in executing TMDLs in NPDES permits issued to Los
Angeles County municipal permittees in accordance with Federal stormwater regulations;
WHEREAS, the use of WQBELs would prevent requiring the City, as a municipal
NPDES permittee, to strictly comply with numeric limitations associated with TMDLs by
allowing compliance to be achieved through the implementation of best management
practices;
WHEREAS, the City, along with many municipalities in Los Angeles County,
fully supports the League Resolution;
NOW, THEREFORE, the City Council of the City of West Covina, California
does hereby resolve:
SECTION 1. The City Council of the City of West Covina actively supports the League
Resolution.
SECTION 2. That the Mayor and his/her designee take the following actions:
1. Forward the League Resolution and this resolution to County, State, and Federal
elected officials and to appropriate State and Federal regulatory agencies, and provide
an explanation of their intent and purpose;
2. Communicate in writing and meet as often as necessary with elected officials and
regulatory agencies on this matter; and
3. Challenge through administrative claims, petitions or litigation any regulatory
requirement that would impose upon the City strict compliance with numeric
limitations in TMDLs, municipal NPDES permits, or other regulatory mechanisms.
SECTION 3. Authorize the appropriate City staff to take actions necessary to promote
the use of WQBELs and/or other regulatory mechanisms to assure that compliance with
TMDLs or municipal NPDES permit requirements is achieved through the
implementation of best management practices without having to meet a numeric
limitation on the pollutants for which a TMDL was created to address.
SECTION 4. The City Clerk shall certify to the passage and adoption hereof.
ZARESOLUTION - 2011WDES Reso.doc
APPROVED AND ADOPTED at a regular meeting of the City Council this 1st
day of February 2011.
Mayor Steve Herfert
ATTEST:
City Clerk Laurie Carrico
I LAURIE CARRICO do hereby certify that the foregoing resolution was duly
adopted by the City Council of the City of West Covina, California, at their regular
meeting thereof held on the 1St day of February 2011, by the following vote of the City
Council:
AYES:
NOES:
ABSENT:
APPROVED AS TO FORM
City Attorney Arnold M. Alvarez-Glasman
City Clerk Laurie Carrico
KA
Exhibit A
A RESOLUTION OF THE LEAGUE OF CITIES, LOS ANGELES
COUNTY DIVISION, SUPPORTING REASONABLE, PRACTICABLE
AND ECONOMICALLY ACHIEVABLE STORMWATER NPDES PERMIT AND
TMDL REQUIREMENTS, THROUGH THE USE OF PROGRESSIVE
AND ADAPTIVE BEST MANAGEMENT PRACTICES
Whereas, municipalities in .Los Angeles County are proud of their environmental
programs and invest significant resources in improving water quality by implementing
both federal, state and local environmental programs, including the National Pollution
Discharge Elimination System (NPDES) permits, and the Total. Daily Maximum Load
(TMDL) program; and
Whereas, the United States Environmental Protection Agency (USEPA) is
governed under a consent decree issued by a federal district court in 1999 which
requires USEPA to adopt 96 TMDLs for water bodies in the Los Angeles region, under
an accelerated time schedule; and
Whereas, the State of California, through the State Board and Regional Board,
has been designated by the USEPA to enforce federal stormwater regulations, including
the municipal NPDES permits and TMDLs, under the Clean Water Act; and
Whereas, TMDLs are the means by which water quality standards are applied to
the municipalities and TMDLs are specifically designed to achieve beneficial uses of
water bodies by limiting the amount of pollutants in runoff conveyed to them; and
Whereas, TMDLs are typically implemented and enforced against local
governments through the Municipal NPDES permits and that the Clean Water Act
allows for third -party litigation/citizen suits against local governments if they fail to
comply with their NPDES permit requirements; and
Whereas, the USEPA and the Regional Board have adopted dozens, of TMDLs
since 2001 and additional TMDLs are pending adoption under the consent decree; and
Whereas, the Regional Board has already incorporated into the current NPDES
permit a trash TMDL for the Los Angeles River and a bacteria TMDL for the Santa
Monica Bay, and plans to include in the permit dozens of other TMDLs affecting Ballona
Creek, Calleguas Creek, the Dominquez Channel, the Los Angeles River and the San
Gabriel River, and Santa Clara River watersheds; and
Whereas, a study commissioned by the United States Environmental Protection
Agency - (USEPA) concluded that the stormwater management program . (including
TMDLs) in the United States is dysfunctional and in need of radical change;
Whereas the USEPA study concluded that the cost of complying with TMDLs
would impose upon subject local governments tremendous, costs that may not result in
a significant improvement in water quality;
Whereas, a Government Accounting Office report commissioned by Congress
found that compliance with existing TMDL regulations has been problematic and that
limitations in USEPA's economic analysis of the NPDES and TMDL programs raises
questions about their reasonableness (GAO/T-RCED-00-233); and
Whereas, the GAO also found that states have had difficulty in developing
accurate water quality standards for the TMDL program due to a lack of financial
resources and that, as a consequence, local governments risk directing limited
resources to. water bodies that have been incorrectly targeted for clean-up (GAO -03-
881T); and
Whereas, the State's non -partisan Little Hoover Commission found in its January
of 2009 report that local governments, representing small, poor communities, as well as
larger, richer urban areas, are struggling to pay for upgrades needed to protect the
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Exhibit A
state's waters and. that urban stormwater is a vexing problem with costly solutions, yet
the State has not developed an adequate system for- assessing and prioritizing the
problems; and
Whereas, the State Water Board commissioned a panel of experts to. report on the
feasibility of relying on numeric limits in municipal NPDES permits and the panel
reported on June 19, 2006 that "it is not feasible at this time to set enforceable numeric
effluent criteria for municipal BMPs and in particular urban discharges"; and
Whereas, the League of California Cities adopted statewide water policy guidelines
in March of 2010 supporting the development of reasonably achievable, environmentally
sound and cost-effective TMDLs based on monitoring and sound science, and opposes
legislation that requires the use of numeric limits in NPDES permits, because of the
difficulties in meeting numeric limits, problems with exceeding numeric limits and the
costs and potential enforcement impacts of numeric limits; and
Whereas, federal regulations allow for flexibility and provide discretion to the states
when imposing NPDES permit requirements and developing TMDL programs, and
USEPA has adopted Interim Permitting Approach for Water Quality -Based Effluent
Limitations in Storm Water Permits, which allows municipalities to employ best
management practices (BMPs) as a reasonable, practicable and economically
achievable method to improve water quality in lieu of incorporating numeric limits into.
NPDES permits; and
Whereas a recent USEPA memorandum reaffirmed the use of BMPs in addressing
water quality based effluent limits (WQBELs) as a means of complying with TMDLs in
NPDES stormwater permits;
Now therefore, the League of California Cities, Los Angeles Division does hereby
resolve:
Section 1. That the President is authorized to communicate with" USEPA, the State
Board and the Regional Board:
That the Division supports the California League of Cities statewide policy that
TMDLs be reasonably achievable, environmentally sound, cost-effective and
based on monitoring and sound science.
2. That the Division supports the League of Cities statewide policy that generally
opposes strict compliance with numeric limits in municipal NPDES Permits
because of the difficulties in meeting them, problems with exceeding them, and
the costs and potential enforcement impacts.
That the Division recommends that the Regional Board allow the municipalities to
comply with TMDLs through reasonable, practical and economically achievable
BMPs, in a progressive and adaptable manner.
4. That the Division recommends that this BMP compliance approach be included in
the upcoming municipal NPDES permits in Los Angeles County, in lieu of
absolute compliance with numeric limits by whatever means necessary to
achieve such compliance.
Section 2. That the President is directed to send letters to all member cities
encouraging them to adopt similar resolutions and communicate their position in support
of best management practices, rather than strict compliance with numeric limits, as a
means of implementing TMDLs in the Municipal NPDES permits to the USEPA, the
State Board and the Regional Board.
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