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:        |                |
          |-----------+-----------------------+-------------+----------------|
          |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.


                                      -- END --