Response to the Audit
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State Water Board and Regional Boards
February 13, 2018
Elaine M. Howle, CPA
California State Auditor
621 Capitol Mall, Suite 1200
Sacramento, CA 95814
Dear Ms. Howle:
STATE AND REGIONAL WATER BOARDS MUNICIPAL STORM WATER
AUDIT REPORT NO. 2017-118
Thank you for the opportunity to review the California State Auditor’s draft report entitled “State and Regional Water Boards: They Must Do More to Ensure that Local Jurisdictions’ Costs to Reduce Storm Water Pollution Are Necessary and Appropriate,” Report 2017-118. The report provides several recommendations that, once implemented, will promote greater efficiency, consistency, and transparency related to the State Water Resources Control Board (State Water Board) and regional water quality control boards’ (Regional Water Boards) regulation of a significant source of pollution. My staff and I appreciate the professionalism and attention to detail your staff exhibited during the audit process, and the final document reflects their effort.
As coordinated with your auditors, the State Water Board and the three Regional Water Boards subject to the audit (collectively, the Water Boards) have consolidated their responses to the audit report. With a few exceptions discussed below, the Water Boards find the audit recommendations helpful, reflective of sound public policy, and will begin implementation of the recommendations. The primary concerns the Water Boards have with the remaining recommendations relate to:
- impracticable deadlines for developing proposed guidance documents, and
- second-guessing statewide trash reduction requirements that were developed in a robust, public process to address a statewide nuisance arising from trash in the state’s waters.
In addition, while the Water Boards commend your staff on the report’s summary of what was a deep dive into forty years of regulatory documents, the summary in the audit report over-simplifies several historical actions.
A successful municipal storm water program is vital to addressing polluted storm water that fouls our state’s waters and beaches. Success has and will come at a cost, though. While the Water Boards have always striven to convey accurately the anticipated financial burden on local jurisdictions and documented those economic considerations consistent with applicable laws, your report will lead to improvements in this area. Ultimately, success will come from the Water Boards and local jurisdictions working together to implement the report’s recommendations and embracing a robust municipal storm water program.
General Comments
Reducing storm water pollution to protect California’s drinking water, recreational beaches, and aquatic life presents profound challenges for municipalities and the Water Boards. By federal design, municipalities and Regional Water Boards customize pollution reduction requirements for municipal storm water based on a variety of local conditions. What is practicable and prudent in one community may not work in other communities because of differences in population, hydrology, pollution sources, water uses, and municipal infrastructure, among other things. As a result, storm water pollution reduction and the municipal storm water permits issued by the Water Boards for large urban areas present significant obstacles to standardization among regions.
The audit report recognizes that there are appropriate grounds for differences among the Regional Water Boards’ municipal storm water permits. This is an important recognition because too often people assume that the approaches developed in one region are immediately or appropriately extensible to another region. The regional water board system, and the municipal storm water permit program in particular, lend themselves to tailored, local solutions.
Moreover, the regional water board system allows the permits to serve as incubators for different water quality protection approaches. Ultimately, as the report notes, successful approaches are replicated across the state as best practices or recognized by the State Water Board in precedential decisions. In addition, the search for best practices for municipal storm water programs and permits extends beyond state boundaries. California’s Water Boards lead in some areas of municipal storm water pollution control programs, but regularly look to and collaborate with the U.S. EPA and other states to identify evolving best practices.
As the report’s findings note, the regions’ distinct water quality control plans and the maximum pollutant levels they establish, along with total maximum daily loads (pollutant control plans), drive key differences among the Regional Water Boards’ municipal storm water permits. As a consequence, several audit findings hinge less on differences in the municipal storm water permits, and more on the underlying water quality control plans and pollutant control plans.
Fine-tuning to develop more-tailored maximum pollutant levels and pollutant control plans will often require updates to the water quality control plans. The water quality control plan update process is resource-limited, resource-intensive, and time-consuming. In turn, this means that the Water Boards’ efforts to implement recommendations relying upon updated water quality control plans will necessarily be a matter of prioritizing already scarce resources and, where possible, obtaining additional resources.
U.S. EPA has established or recommended maximum pollutant limits for states to utilize that are adequately protective of all surface waters, and U.S. EPA recognizes that site-specific studies for every waterbody-pollutant combination would be impracticable. However, the Water Boards recognize that, under certain circumstances, water body-specific special studies can provide adequate protections for beneficial uses at reduced compliance costs to local jurisdictions. When developing pollutant control plans for water bodies that may benefit from these special studies, the Regional Water Boards have almost always included opportunities and sufficient time for waterbody-specific studies that could refine maximum pollutant levels before local jurisdictions incur significant compliance costs. All three Regional Water Boards’ pollution control plans nearly always establish phased approaches that allow greater coordination with stakeholders in the initial phases to develop tailored local information that will inform later phases. In the Los Angeles region, this phased approach was a solution to the fast-paced schedule to develop pollutant control plans required by a federal consent decree. Under these plans, lengthy implementation schedules and reopener provisions allow the development of site-specific information and ensure that the Regional Water Boards reconsider local requirements and revise the plans as appropriate during periodic reviews. In this respect, key audit recommendations build off work the Water Boards have already undertaken, and provide an organizing principle to do it more proactively.
Comments on Specific Recommendations
Recommendation 1 [Legislation for Waterbody-Specific Studies] – The Water Boards recognize the value of, and support utilizing, site-specific information in developing pollutant limits and have done so in a number of circumstances. That said, the Water Boards recognize that even more frequent use of waterbody-specific studies would be ideal; however, any legislation would need to reconcile many competing demands and priorities. Further, articulating standards for what “justifies” a special study will be similarly challenging.
Recommendation 2 [State Water Board Guidance by August 2018 for Estimating Costs to Local Jurisdictions of Complying with Pollutant Control Plans] – The State Water Board will begin this spring to work with the Regional Water Boards and local jurisdictions to develop cost-estimating guidance. To provide appropriate guidance, the State Water Board believes it will be necessary to engage a wide range of experts, convene public meetings, and potentially develop new methodologies. Therefore, the State Water Board does not believe it can complete appropriate guidance by August 2018. A more realistic, but still aggressive, timeline would be February 2019.
Recommendation 3 [Regional Water Boards to Follow Cost-Estimating Guidance] – The Regional Water Boards expect to follow appropriate guidance put in place by the State Water Board.
Recommendation 4 [State Water Board Guidance by August 2018 for Reporting and Tracking Local Jurisdictions’ Storm Water Costs] – The State Water Board will begin this spring to work with the Regional Water Boards and local jurisdictions to develop guidance on reporting and tracking of municipal storm water costs. As with Recommendation 2, the State Water Board has grave doubts the task can be completed by August 2018. First, there is a limited pool of State Water Board staff involved in municipal storm water permitting who can work on this guidance and the guidance identified in Recommendation 2. Second, municipal finance and cost-engineering are not areas where the Water Boards have expertise, and it will likely require retaining new staff or contracting with an outside expert to conduct the work. Third, the municipal storm water program covers a variety of municipalities, with a broad suite of storm water activities and programs. Fourth, data systems will need to be adapted to accept the updated reporting. Finally, to provide appropriate guidance, the State Water Board believes it will be necessary to engage a wide range of experts, convene public meetings, and potentially develop new methodologies. Therefore, the State Water Board does not believe it can complete appropriate guidance by August 2018. A more realistic, but still aggressive timeline, would be June 2019.
The increased consistency and transparency following implementation of the guidance are laudable objectives. However, the Water Boards note that the development and implementation of new standardized cost-reporting will likely result in short-term costs as local jurisdictions transition cost-accounting practices and data systems.
Recommendation 5 [State Water Board Regulations] – After an appropriate evaluation, relying in part on the annual review process specified in Recommendation 6, the State Water Board will consider adopting regulations if it determines there are portions of the aforementioned guidance that are not being implemented.
Recommendation 6 [Annual Review Process] – The Water Boards will work together to develop an annual review process for the information Regional Water Boards receive as a result of Recommendation 4. It may take several years for permit renewals to incorporate statewide reporting, but as the Water Boards receive initial information, the State Water Board can use that information to fine-tune the cost-reporting guidance.
Recommendation 7 [State Water Board Guidance for Waterbody-Specific Studies] – The State Water Board will begin this spring to work with the Regional Water Boards and stakeholders to develop guidance on when waterbody-specific studies should be conducted.
Recommendation 8 [State Water Board Direction to Amend Monitoring Requirements] – The State Water Board will direct Regional Water Boards to revise requirements when staff become aware of changing circumstances that would make monitoring unnecessary. At this point, there do not appear to be instances where Water Boards continued to require unnecessary monitoring. The examples identified in the audit report, and discussed below in the discussion of specific audit findings, do not support a conclusion that the boards required unnecessary monitoring. The State Water Board notes that coordinated, statewide cost-of-compliance analyses are already underway to address the costs regulated entities incur complying with the Water Boards’ permits, and that the Water Boards are working diligently to tailor monitoring requirements so that the Water Boards only require necessary data.
Recommendation 9 [State Water Board Should Revise the Trash Control Plans] – The State Water Board must periodically review the requirements, such as the trash control requirements, established in its water quality control plans. Consistent with applicable law, the State Water Board will consider this audit recommendation during its next triennial review. That said, the State Water Board adopted the trash control requirements following a comprehensive, public process, considered competing policy considerations, and sees no reason to revise the trash control plans at this time.
The resource allocation and prioritization issues identified in the audit report were raised by several commenters during development of the plans. At the same time, the testimony and record showed that trash is a nuisance throughout the state and presents threats to environmental and public health. Trash pollutes creeks, rivers, lakes, bays, estuaries and ocean waters in every region. Moreover, cost-effective solutions exist for trash control. Rather than being reactive, as several Regional Water Boards had to be when their waters became impaired for trash, the State Water Board adopted a proactive plan for controlling this nuisance and scourge across the state. The U.S. EPA, many members of the public, municipalities, and nongovernmental organizations supported the State Water Board’s actions. After carefully considering all the arguments, the State Water Board adopted a baseline, statewide standard for trash control. At this time, the State Water Board believes there is no reason to reconsider its decision.
Recommendation 10 [Website Updates by May 2018 to Identify Municipal Storm Water Funding Options] – The Water Boards will review and update the Regional Water Board websites by May 2018 to ensure they contain accurate and relevant information about storm water funding options.
Recommendation 11 [Formation of Committee by August 2018 to Identify Municipal Storm Water Financial Management Approaches] – The State Water Board supports the formation of a body to identify informational needs and create best practices for storm water financial management.
Recommendation 12 [Cost Reporting for the San Francisco Bay Water Board’s Municipal Storm Water Permit] – The San Francisco Bay Water Board will include cost-reporting requirements when it next updates the municipal storm water permits for the region.
Recommendation 13 [Updated Pollutant Control Plans for the Los Angeles Region] – The Los Angeles Water Board will revise the pollutant control plan for toxic pollutants in the Dominguez Channel and Great Harbor Waters during its reconsideration in Fiscal Year 2018-2019, to address the use of the wrong sediment targets for dibenz[a,h]anthracene and 2-methylnaphthanele.
Comments on Specific Audit Findings
Throughout the audit process, your staff engaged with Water Boards’ staff to develop an understanding of the complexities of water quality laws and regulations, along with the scientific and public policy underpinnings of the Water Boards’ actions. Generally, the report conveys this information accurately, but some of the conclusions are either over-generalized or inaccurate.
All Water Boards
- Necessity of Monitoring - The audit report’s conclusions that some local jurisdictions monitored some pollutants unnecessarily over-generalizes and misses important distinctions in regulatory programs. For example, one focus of the report is the continued use of multiple bacteria indicators to monitor for pathogens from many municipal storm water systems. While the State Water Board is in the process of updating bacteria objectives based on U.S. EPA recommended criteria, the adoption of the change may not necessarily result in any reduced monitoring requirements or costs for local jurisdictions. This is so because beach monitoring and closure requirements, over which the State Water Board has no authority, will continue to require sampling for additional bacteria indicators. While the report notes that state law allows alternative indicators that are as protective of public health, it is not clear that the Department of Public Health has the necessary information, especially in light of California-specific epidemiological studies, to make that substitution. So long as state law and the Department of Public Health continue to use the existing indicators, local jurisdictions will continue to monitor for additional parameters and there will be no reduced monitoring or cost-savings. The report’s conclusions to the contrary are inaccurate.
In the case of the Los Angeles Water Board, the report faults that board for fecal coliform monitoring specified in a pollutant control plan for Ballona Creek. However, U.S. EPA (2002) acknowledged the need to establish an adequate monitoring database using the new bacteria indicators and recommended a transition period of three years during which data could be collected for both the old and new indicators to ensure consistency and continuity. In Ballona Creek, the three-year period of overlap occurred from June 2009 to October 2012. The Los Angeles Water Board eliminated the requirement for local jurisdictions to monitor for fecal coliform in October 2012, thereby acting consistent with U.S. EPA’s recommendation.
Similarly, the report faults the San Francisco Bay Water Board for certain pesticide monitoring specified in a pollutant control plan; however, the pollutant control plans are not self-implementing. Instead, the Water Boards require monitoring through other orders, including the municipal storm water permits. It is those documents that establish the actual obligations for local jurisdictions. In this case, the San Francisco Bay Water Board already removed the pesticide monitoring requirements from the 2015 permit, so the local jurisdictions in that region are not currently subject to the pesticide monitoring requirements identified in the report.
The report also faults the Central Valley Water Board for pesticide monitoring in Sacramento urban waterways, even though only 4 percent of samples collected between 2010 and 2016 showed that there was a problem. However, the report fails to identify that these samples were collected during an extended drought period with very little to no runoff. This did not provide the Central Valley Board with sufficient data to determine whether the pesticides were still causing water quality problems. The rains in 2017 allowed the Board to conduct more monitoring. Analysis of the most recent monitoring data suggests that water quality objectives are currently being met, and the Central Valley Water Board will revise the monitoring requirements in the very near future.
Finally, the report suggests that monitoring should be terminated if a pesticide has been banned from private use. This is not accurate. State or federal bans on certain uses of a pesticide do not prohibit all uses that may result in a pesticide reaching a jurisdiction’s municipal storm water system, including the application of the pesticide on roadway medians, golf courses, industrial sites, and agricultural lands. Further, many historical pollutants, including pesticides, persist in the environment and may end up in municipal storm sewer systems and their discharge to California waters. Rather than simply discontinuing monitoring for a banned or limited-detection pesticide, a water board may find it appropriate, and both state and federal law allow, continued monitoring for that pollutant, but the monitoring frequency may be reduced.
San Francisco Bay Water Board and Central Valley Water Board
All comments from the Central Valley Water Board and San Francisco Bay Water Board have been incorporated above, and there are no additional region-specific comments.
Los Angeles Water Board
- The Inaccurate Information Used When Developing and Implementing Certain Pollutant Limits Had No Adverse Effects on Local Jurisdictions – The report identifies two errors associated with storm water requirements in the Los Angeles region, and expresses concern that these may have led to improper planning on the part of local jurisdictions and an unnecessary expenditure of funds. Based on the Los Angeles Water Board’s review, local jurisdictions did not incur unnecessary costs from these errors.
The first error relates to two pollutant limits for sediment quality in the pollutant control plan for Dominguez Channel and Greater Harbor Waters Toxic Pollutants. The two limits were for two individual compounds, and the Los Angeles Water Board agrees that it selected the wrong thresholds for these two pollutants. The Los Angeles Water Board notes, however, that the two erroneous pollutant limits were not used to calculate the applicable pollutant limits (waste load allocations and load allocations), which the plan properly derived from another threshold. Therefore, the error, while unfortunate, will not result in the need for local jurisdictions to change any planned actions or incur any additional costs. As noted in Recommendation 13, the Los Angeles Water Board will correct these errors during the scheduled reconsideration of this plan in Fiscal Year 2018-2019.
In the second instance, a group of local jurisdictions made an error in their reasonable assurance analysis for an enhanced watershed management program, which caused the analysis to be overly conservative for one pollutant limit. The Los Angeles Water Board brought this error to the group’s attention during the Board’s review of annual report and monitoring data. The Los Angeles Water Board subsequently approved an extension of a project deadline associated with the pollutant limit to provide the group with time to reevaluate what actions will be necessary to meet the corrected pollutant limit. As a result, the group did not incur any costs associated with the project deadline.
- The Los Angeles Water Board Already Makes Strategic Use of Site-Specific Information – The audit report identifies that the Los Angeles Water Board did not use site-specific information in four of the eight pollutant control plans your auditors examined, namely those for nutrients in Machado Lake, toxic pollutants in Dominguez Channel and the Greater Harbor Waters, metals in the Los Angeles River, and metals in the San Gabriel River. Initially, the Los Angeles Board notes that U.S. EPA, not the Los Angeles Water Board, established the pollutant control plan for metals in the San Gabriel River. In the four plans examined, site-specific information was used to establish a number of the pollutant limits. For example, the report notes that the Board did not use site-specific translators to establish zinc and lead limits for dry weather in the Los Angeles River. However, the Board notes that the zinc, lead and copper limits for wet weather in the Los Angeles River were set using site-specific translators. The wet-weather limits are those that will require the most effort by local jurisdictions to comply.
Again, I thank your staff for a thorough report, and I appreciate their professionalism and courtesy. If you have any questions regarding the above comments, please contact Chief Counsel Michael Lauffer at (916) 341-5183.
Sincerely,
[Michael A.M. Lauffer for]
Eileen Sobeck
Executive Director
Comments
CALIFORNIA STATE AUDITOR’S COMMENTS ON THE RESPONSE FROM THE STATE WATER BOARD AND REGIONAL BOARDS
To provide clarity and perspective, we are commenting on the consolidated response to the audit from the State Water Board and regional boards. The numbers below correspond to the numbers we have placed in the margin of their response.
The State Water Board expresses concern about what it believes are recommendations with impracticable deadlines for developing proposed guidance documents and second‑guessing of statewide trash reduction requirements. We disagree and specifically address these issues in our subsequent comments on the response. Further, we believe our report, including the Summary, is appropriately presented to provide sufficient context for our findings and recommendations.
The State Water Board expresses concerns with certain time frames included in our recommendations. Given the significant resources currently being spent by local jurisdictions, which we discuss throughout our report, we believe it is important that the State Water Board and regional boards take prompt action to better understand the costs that local jurisdictions incur as a result of the pollutant control plans created by the regional boards. Our recommended time frames reflect the importance of this information.
We disagree with the State Water Board’s and regional boards’ position regarding unnecessary monitoring. The State Water Board and regional boards raise several concerns regarding our findings, but none provides a complete perspective of the concerns we identified and why we believe that the monitoring was not necessary. We have provided detailed responses to these concerns in comments seven through 11.
We stand by our recommendation that the State Water Board revise its trash policy. As we state in the report, the statewide trash policy requires local jurisdictions to address a pollutant that is of lesser concern than other pollutants. Therefore, we believe that the State Water Board’s trash policy is overly broad in its application. Local jurisdictions have limited resources to address storm water pollution. Given that reality, we believe local jurisdictions should use their resources to address pollutants that are of greater concern. Further, as the State Water Board indicates in its response, because of the differences among the regions, storm water pollution reduction lends itself to tailored, local solutions. The statewide trash policy contradicts that approach by requiring local jurisdictions throughout the State to address trash regardless of whether their water bodies contain pollutants of greater concern.
Although San Francisco Bay indicates that it will address our recommendation, we are concerned about the timing in which it may take such action. San Francisco Bay’s response indicates that it will include cost‑reporting requirements when it next updates its permit but does not state when that update will occur. As we note in the report, federal regulation requires the collection of cost information. If San Francisco Bay delays implementation of cost reporting among local jurisdictions until the next time it implements a new permit, it would continue to be in violation of the regulation until at least 2020, based on the duration of a typical storm water permit of five years and San Francisco Bay’s most recent permit from 2015. San Francisco Bay would also continue to lack information on the financial impact its storm water requirements have on local jurisdictions. We note that another regional board—Los Angeles—was able to reopen one of its permits, so we would expect that San Francisco Bay could take similar action to impose a cost‑reporting requirement.
We disagree with the State Water Board’s and regional boards’ characterization of some of our conclusions as over‑generalized or inaccurate. As we describe in detail in the following comments, our report presents information that fairly and accurately supports our findings and recommendations.
The State Water Board contends that its bacteria monitoring is necessary because state law as administered by the Department of Public Health requires monitoring for the outdated indicators on public beaches. We refer to this law in the report, where we note that it allows the use of different indicators if, based on the best available scientific studies, the alternative indicators are as protective of public health. As we also note, the USEPA issued guidance in 1986 that recommended using certain indicators to test for the presence of harmful levels of bacteria and discouraged the use of previously issued indicators because they were deemed less effective. However, the State Water Board and regional boards have not taken action for more than 30 years to adopt this guidance, resulting in unnecessary monitoring of outdated bacterial indicators.
The State Water Board and regional boards are misleading when they assert that Los Angeles eliminated the requirement for local jurisdictions to monitor the outdated bacteria indicator in 2012. Although Los Angeles eliminated the requirements to monitor the outdated indicator in some freshwater bodies, it did not do so for all. Additionally, as we note, USEPA issued its guidance in 1986 discouraging the use of those indicators, meaning that it took Los Angeles more than 25 years to remove the monitoring requirement in some of its freshwater bodies and still has not done so for a freshwater body in the Los Angeles region that is one of those we refer to in the report.
The State Water Board and the regional boards indicate that San Francisco Bay did not require monitoring for a banned pesticide because its storm water permit did not include the requirement. This explanation does not consider the fact that the pollutant control plan, which is incorporated within the storm water permit, explicitly states that local jurisdictions must monitor for the pesticide, as we state in the report. Further, as we note on the same page, the assistant executive officer of the San Francisco Bay board confirmed that the board was considering removing the requirement from the pollutant control plan but had not yet done so because of the time and effort involved in making the change.
The State Water Board and regional boards contend that the Central Valley board was justified in requiring monitoring for certain pesticides even though only 4 percent of samples over a seven‑year period had harmful levels of the pesticides because there was insufficient data during drought years. This justification is not reflective of the data gathered by the local jurisdictions. From 2010 to 2016, local jurisdictions in the Sacramento County area collected over 100 samples from water bodies and found that the samples exceeded the limit for the pesticides in only four instances. Further, these results are consistent with monitoring data that Central Valley has required local jurisdictions to collect as far back as 2005, well before the drought began in 2011. We consider continued monitoring unnecessary, and it appears the Central Valley board also now agrees, as the response indicates that it plans to revise the requirement.
The State Water Board and regional boards are inaccurate in stating that our report suggests that monitoring should be terminated if a pesticide is banned from private use. On the contrary, our conclusion is based on monitoring results demonstrating that local jurisdictions rarely exceed the limits for the pesticides, as we discuss in the report. Further, we state that if local jurisdictions have demonstrated that they no longer exceed pollutant limits, and federal restrictions on the pollutants make it unlikely that local jurisdictions will exceed those limits in the future, the local jurisdictions should not be expected to continue monitoring for those pollutants.
Los Angeles incorrectly states that its use of inaccurate information when developing and implementing certain pollutant limits had no adverse effects on local jurisdictions. First, as stated in the report, Los Angeles’s use of incorrect methods to develop the two pollutant limits resulted in pollutant limits that were less strict than intended. Implementing limits that are less strict than intended could have an adverse effect on achieving water quality goals. Further, despite its claim that the error will not result in any change in plans for local jurisdictions, Los Angeles agreed that it will need to revise the pollutant limits.
Los Angeles’s statement that the group of local jurisdictions did not incur any costs because the regional board failed to detect an error is misleading. As we note in the report, when the group of local jurisdictions was informed of the error, they indicated to the regional board that they would be revising their efforts to address the pollutant control plans. Those efforts included a substantial project that the group of local jurisdictions had planned to begin in 2017. Further, the group of local jurisdictions spent time and effort developing plans they will no longer use, and the costs associated with those resources could have been avoided if Los Angeles had detected the error when it first approved the plan.
Los Angeles’s response does not change the fact that it did not use site‑specific information to develop some pollutant limits. Although Los Angeles is correct in identifying the pollutant control plans for which it used some site‑specific information, our concern regarding the four pollutant control plans we discuss is that Los Angeles used site‑specific information to develop pollutant limits for some, but not all pollutants.
Los Angeles also states that one of the pollutant control plans that did not use site‑specific information was developed by the USEPA, rather than the regional board. Although the USEPA developed the pollutant control plan, it noted that the information it used to develop some of the limits was based on limited data and recommended further study to develop site‑specific limits. However, Los Angeles has not sought these studies.