BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 615
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|Author: |Berryhill |
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|Version: |4/6/2015 |Hearing |4/29/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Waste discharge requirements: waivers: managed
wetlands
ANALYSIS:
Existing law:
1. Authorizes the State Water Resources Control Board
(SWRCB) and the California regional water quality control
boards (regional boards) to prescribe waste discharge
requirements in accordance with the federal Clean Water Act
and the Porter-Cologne Water Quality Control Act
(Porter-Cologne).
2. Under Porter-Cologne,
A. Requires a waste discharger to file certain
information with the appropriate regional board and to
pay an annual fee.
B. Prohibits a waste discharger from taking
certain actions relating to the discharge of waste
before filing the information with the regional board.
C. Prohibits a waste discharger from taking those
actions after filing the report but before the
occurrence of certain events.
D. Requires each regional board to prescribe
waste discharge requirements, as specified, that
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implement relevant water quality control plans.
E. SWRCB or a regional board may waive
requirements regarding a specific discharge or type of
discharge if the state board or regional board
determines that the waiver is consistent with any
applicable state or regional water quality control
plan and is in the public interest.
F. The waiver shall not exceed five years in
duration, but permits the state board or a regional
board to renew the waiver.
G. Requires the waiver to be conditional on
specified monitoring requirements but authorizes the
state board or a regional board to waive the
monitoring requirements for discharges it determines
do not pose a significant threat to water quality.
This bill:
1. Makes legislative findings regarding the value of
wetlands to California's environment.
2. Requires that managed wetlands be presumed to not pose a
significant threat to water quality and would require, with
respect to managed wetlands, the state board and regional
boards to waive the above-described reporting requirements,
regional board prescribed waste discharge requirements, and
monitoring requirements of the waiver program.
3. Provides that the state board or a regional board shall
require water quality monitoring of a managed wetland not
more than once during the duration of each waiver period
unless results of downstream monitoring demonstrate a
violation of water quality discharge standards.
4. Limits this monitoring to contaminants that are actually
applied by wetland managers to the wetland and contaminants
that are known to be naturally present in the wetland
environment.
Background
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1. Wetlands Regulation:
There are over 400,000 acres of federal and state wildlife
preserves statewide that include managed wetlands for
waterfowl, and other aquatic species. These areas are
concentrated in the Central Valley which includes over half
this acreage. In addition to these preserves, there are
federal and state conservation easements on private lands
that provide funds to restore and enhance wetlands for the
benefit of waterfowl and special status species. For
example, in the Bay Area, there are currently 46,000 acres of
protected wetlands.
Managed wetland activities commonly include discing,
planting, grading, dredging, excavating ditches and improving
drainage pathways, installation of pumps and pump platforms,
creation of waterfowl nesting islands, and the relocation,
replacement, or installation of new duck blinds and other
facilities.
Currently, these areas are largely regulated under Waste
Discharge Requirements (WDRs). The Central Valley Water
Regional Board is currently reconsidering the regulation of
managed wetlands covered under WDRs for irrigated lands
issued. This is due to the differences in potential water
quality impacts associated with agriculture versus managed
wetland practices. The WDRs require agricultural coalitions
to develop appropriate water quality monitoring plans. These
areas are also subject to Total Maximum Daily Load (TMDL)
requirements for monitoring naturally occurring selenium,
boron, and salts.
Effects of managed wetland drainage water on ambient water
quality include:
Decomposition of organic material causing
depletion of oxygen.
Production of methelated mercury.
Build-up of sulfuric acid in iron rich soils
causing discharge of "red water (high dissolved
iron)".
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Re-suspension of sediment caused by wind and
wave action.
Impacts to fish species by drain water
conditions.
Under existing state and federal law, discharge of pollutants
to waters, including wetlands, may be allowed if a
determination is made that the beneficial uses of the
impacted waters, as well as downstream waters, are protected
and maintained. With ambient monitoring, the water boards
ensure that water quality standards for wetlands and other
waters are met. Monitoring is based on site specific
characteristics. For example, persistent or bioaccumulative
contaminants (i.e., mercury) may require monitoring potential
impacts on fish and wildlife.
Comments
1. Purpose of Bill. According to the author, "This bill is
needed to reduce the regulatory burden and cost on managed
wetlands. This bill is not a complete opt-out of program but
only a more appropriate use of a regional water quality
control board's oversight. The one-size fits all approach is
counterproductive to increasing the acres of wetlands in
California, which have been shown to reduce most water
quality contaminants. It is estimated that California has
lost more than 90% of its historical wetlands while the
remaining wetlands are threatened.
2. Presumption of no significant threat. The bill states: "As
a public trust resource, managed wetlands, whether owned and
operated by state, federal, or local agencies, or private
landowners, shall be presumed not to pose a significant
threat to water quality."
This presumption is inaccurate. Following are a couple of
examples:
Mercury: The Central Valley Water Regional Water Quality
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Control Board has information in its records showing that
wetlands that have source water containing mercury will
promote methylation of the mercury into a bioavailable form
that accumulates in the food chain (methylmercury).
Methylmercury accumulation in the food chain has led to fish
consumption advisories in many lakes and the Delta
-substantially impairing beneficial uses. For this reason,
managed wetlands in the Delta and Yolo Bypass have been
assigned methylmercury load allocations under a Total Maximum
Daily Load (TMDL) with a compliance date of 2030. Managed
wetlands elsewhere in the Central Valley behave similarly to
those in the Delta and Yolo Bypass with respect to producing
methylmercury. It is unknown whether future TMDLs that
address mercury in the Sacramento and San Joaquin Rivers and
their tributaries will include load allocations for managed
wetlands.
3. Salt and boron: Portions of the San Joaquin River are
impaired for salt and boron. Wetlands have been found by the
Central Valley Water Regional Water Quality Control Board to
be a contributing source. The Central Valley Water Regional
Water Quality Control Board has adopted a salt and boron TMDL
for portions of the San Joaquin River assigning wetlands a
load allocation. Identified wetlands are currently
participating in implementing this TMDL and a "real time
salinity management program" through participation in the
irrigated lands regulatory program waste discharge
requirements.
4. Monitoring limited to not more than once during the five-year
period.
As described above, there are water quality concerns
associated with managed wetlands. In some cases, monitoring
once in five-years would generate needed information; in
other cases, this may not provide an accurate picture of the
discharge. The board has discretion to require monitoring
under Section 13267 of the Water Code and seeks to only
require monitoring where the burden, including costs bear a
reasonable relationship to the need for the monitoring and
the benefits to be obtained.
This bill is inconsistent with existing law in that it
specifies a maximum frequency of monitoring without any
information on the need, benefits, or the cost. This could
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actually harm the wetlands where additional information is
needed to re-issue a waiver or demonstrate compliance.
Often, variations in sample collection, management of the
wetland, source water, discharge volume, and other factors
lead to substantial variability in data. In practice, SWRCB
has found that collection of minimal samples can lead to
findings that a discharger is not in compliance when if
additional information was collected, the opposite would be
shown. This can lead to complications in re-issuing permits
and potentially in enforcement. Both of these would
substantially increase costs for wetlands.
5. Monitoring limited to those constituents applied at the
wetland or naturally occurring - does not include
constituents present in the wetland as a result of
third-party activities outside of the managed wetland area.
Similar to the discussion above, this requirement would be
inconsistent with existing law by seeking to limit
constituents for consideration without considering the need,
benefits, and the cost of the monitoring. This requirement
could severely limit critical monitoring. As shown in the
methylmercury discussion above, the wetland may take source
water with mercury from legacy sources. While the mercury is
not applied by the wetland or naturally occurring in the
wetland, the discharge of methylated mercury from the wetland
is of concern for attaining downstream water quality
objectives.
Without monitoring and wetland management actions to minimize
the methylation of mercury, the state or regional board would
not be able to achieve compliance with water quality
objectives. The state or regional board has considerable
discretion in assigning monitoring requirements, this is
because water quality systems are complicated and new issues
arise that cannot be anticipated.
The bill would work against this critical flexibility and
could severely limit the boards' effectiveness at protecting
water quality.
Related/Prior Legislation
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SOURCE: The California Waterfowl Association
SUPPORT: None on file
OPPOSITION:
Sierra Club California
ARGUMENTS IN
SUPPORT:
According to the sponsor, "Approximately two-thirds of managed
wetlands are on private lands, with the majority being protected
from development by state and federal conservation easements.
The remainder of the managed wetlands are included in state
wildlife areas managed by the California Department of Fish and
Wildlife and in national wildlife refuges managed by the United
State Fish and Wildlife Service. Wetlands managers work
cooperatively with local agricultural water districts, as well
as the State Water Project and the Central Valley Project.
Wetlands managers also work closely with local agricultural
organizations, especially the California Rice Commission."
The sponsor continues, "Managed wetlands do not discharge many
of the constituents that are monitored under the Irrigated Land
program, such as fertilizer and pesticides. There is very
little evidence that managed wetlands contribute to water
quality problems. In fact, managed wetlands are known to serve
as filters that improve the quality of agricultural drain water
that is often used to flood up habitat for migratory birds.
Where managed wetlands have been shown to discharge constituents
such as methylmercury and salts, those discharges are being
dealt with under TMDL orders, including mercury management
orders and the CV-SALTS program. Passage of this bill will
affect those regulatory processes."
ARGUMENTS IN
OPPOSITION:
The opposition argues that "managed wetlands are of critical
importance to the state in the habitat that they provide for
birds and fish and for their ability to improve water quality.
They are a source where water is discharged into other water
bodies. Contamination of these sites would ruin their use as
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habitat, and the discharge of that contamination can harm the
environment for a water course. The very need for pristine
habitat necessitates strong vigilance against contamination, so
relaxing water quality control for these sites is
inappropriate."
DOUBLE REFERRAL:
Should this measure pass out of this committee it will be
referred to the Committee on Natural Resources and Water for
consideration.
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