BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 615 ----------------------------------------------------------------- |Author: |Berryhill | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |4/6/2015 |Hearing |4/29/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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 SB 615 (Berryhill) Page 2 of ? 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 SB 615 (Berryhill) Page 3 of ? 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)". SB 615 (Berryhill) Page 4 of ? 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 SB 615 (Berryhill) Page 5 of ? 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 SB 615 (Berryhill) Page 6 of ? 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 SB 615 (Berryhill) Page 7 of ? 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 SB 615 (Berryhill) Page 8 of ? 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. -- END --