State and Regional Water Boards and state Health Department run afoul of Clean Water Act and Safe Drinking Water Act
Editor's note: The following is the sequel to a story posted at www.lloydgcarter.com on May 22. It can be read here. The following concerns California's abysmal efforts to meet goals set by the Clean Water Act and Safe Drinking Water Act.
By Patrick Porgans and Lloyd G. Carter
Forty-one years ago, a united Congress overrode President Nixon's veto of the Clean Water Act (CWA), which ordered states to limit pollutants in the nation's waterways. Coupled with subsequent amendments, the CWA required all states to assess and establish Total Maximum Daily Limits (TMDLs) of pollutants for lakes, creeks, rivers, estuaries and ocean shorelines. If the states wouldn't do it, the U.S. Environmental Protection Agency (EPA) could step in and impose safety limits.
Some 41 years down the road and California still has a long ways to go in assessing and establishing TMDLs statewide. EPA’s latest published report indicates that only 16 percent of the State’s rivers and stream have been assessed; and, of those, 84 percent classified as “water-quality impaired.” Ten percent of those rivers and streams were classified as “good”, with the remainder 90 percent impaired.
“California has some of the most magnificent rivers, lakes and coastal waters in the country. However, of its 3.0 million acres of lakes, bays, wetlands and estuaries, 1.6 million acres are not meeting water quality goals, and 1.4 million acres still need a pollution clean-up plan, known as a Total Maximum Daily Load (TMDL). Of the 215,000 miles of shoreline, streams and rivers, 30,000 miles are not meeting water quality goals, and 20,000 miles still need a TMDL. The most common contaminants in these waterways are pesticides and bacteria, followed by metals and nutrients,” according to EPA. [Refer to Part I: Dirty little secrets about CWA.]
Indeed, the State Water Resources Control Board (State Board) and the state Department of Public Health (DPH), based on their performance and track-record, are playing Russian Roulette with citizens' lives, given that dangerous toxins and poisons continue to plague public drinking supplies and the waters of the state, decade after decade. Getting all of California's rivers, lakes, estuaries and ocean shorelines clean enough to drink or swim in may be decades away.
The goal of the CWA was to make U.S. waterways fishable and swimmable by 1983 and to achieve “zero” discharge of pollutants to waterways by 1985. The historical records and the current status of the widespread pollution of the public’s streams, rivers, lakes, reservoirs and groundwater basins are a testament to the manner in which both the federal Clean Water Act (CWA) of 1972 and Safe Drinking Water Act (SDA) of 1974 are “managed” by California water officials.
Four decades later and an estimated expenditure of $40 billion of federal taxpayer funds and state borrowed money under the guise of “Safe, Clean, and Reliable Drinking water supply”, California’s waterways remain contaminated, and, according to the data, the problem is getting worse.
Increased water monitoring data shows the number of rivers, streams and lakes in California exhibiting overall toxicity have increased 170 percent from 2006 to 2010.
More of California’s waterways are toxically polluted/water quality impaired than previously known, according to a list of polluted waterways submitted by the State Water Resources Control Board (State Water Board) to the U.S. Environmental Protection Agency (EPA) and finalized by the agency. The data indicate an increase in toxicity and listing of water impaired bodies will continue to rise. The State Board and regional water boards administer the provisions of the CWA under an agreement with the U.S. Environmental Protection Agency (EPA).
Although the CWA became law in 1972, the State Water Board did not adopt a Water Quality Control Policy for Developing California’s Clean Water Act Section 303(d) List, until September 2004.
An updated list was due back in April for 2010-2012 years, however, the public may not know just how bad things are until 2014, as state water officials have failed to provide an updated list to EPA and have requested a delay in submitting the data.
At last count, California had 1,021 impaired water bodies listed on the 303(d) list, according to EPA’s website. To its credit the Golden State ranks eighth in “Approved TMDLs By State.” The federal CWA requires states to develop Total Maximum Daily Loads [TMDLs] for impaired water bodies; i.e. streams, rivers, and lakes.
To date billions of dollars have been expended for Clean and Safe Drinking Water programs; reportedly only about a dozen known water bodies have been restored in California since 2002.
“A water [body] may be assessed for several different uses. In order to be considered "good," it must meet all the uses for which it was assessed. It is considered "threatened" if it is meeting all assessed uses but if water quality conditions appear to be declining. It is considered "impaired" if any one of its assessed uses is not met,” according to the U.S. Environmental Protection Agency (EPA).
Site-specific targeted monitoring results for California bays and estuaries assessed as of the latest 2010 report, list those water bodies as impaired. More specifically, the monitoring results indicate that from the square miles of bays and estuaries assessed it list agricultural supplies as 100 percent impaired; cold fresh water 98.5 percent impairment; commercial and sport fishing 99.7 percent impaired; estuarine habitat 96.6 percent impaired; municipal and domestic supply 100 percent impaired; warm water fresh habitat 99.9 percent impaired; wetlands habitat 100 percent impaired and wildlife habitat 100 percent impairment.
Major source of pollutants detected in bays and estuaries assessed and classified as impaired are from chemicals discharged into the water of the State, which include mercury, Polychlorinated Biphenyls (PCBs), DDT, Chlordane, dioxins and selenium.
“California's Water Resources Control Board and nine Regional Water Quality Control Boards are responsible for conducting monitoring, assessment, reporting under CWA Sections 303(d) and 305(b), and TMDL development for the State of California. The State Board and Regional Boards cooperate in developing Section 305(b) and Section 303(d) listing reports. TMDLs are normally developed by Regional Boards, and then approved by the State Board and State Office of Administrative Law before being submitted for EPA approval.
Water discharges from agricultural operations in California include irrigation runoff, flows from tile drains, and storm water runoff. These discharges can affect water quality by transporting pollutants, including pesticides, sediment, nutrients, salts (including selenium and boron), pathogens, and heavy metals, from cultivated fields into surface waters. Many surface water bodies are impaired because of pollutants from agricultural sources. Groundwater bodies have suffered pesticide, nitrate, and salt contamination.
To prevent agricultural discharges from impairing the waters that receive these discharges, the Irrigated Lands Regulatory Program (ILRP) regulates discharges from irrigated agricultural lands. This is done by issuing waste discharge requirements (WDRs) or conditional waivers of WDRs (Orders) to growers. These Orders contain conditions requiring water quality monitoring of receiving waters and corrective actions when impairments are found. The number of acres of agricultural land enrolled in the ILRP is about six million acres. The number of growers enrolled is approximately 40,000.
An inquiry had been made to the water boards to ascertain if there is any relationship between the six-million acres in the ILRP program related and the establishing and adopting of new TMDLs into updated basin plans, if they relate at all. Critics argue that no new waste discharge permits should be issued until the required TMDLs are in adopted basin plans, as required by federal and state law.
What happens when a water body is placed on the 303(d) list?
Once a water body is placed on the 303(d) list, Regional Board staff evaluates the nature of the impairment and begins developing a Total Maximum Daily Load (TMDL), if appropriate and necessary. For each TMDL developed, State Water Board staff will also develop an implementation or water quality control plan for each water body and associated pollutant/stressor on the list. The TMDL and the implementation plan serve as the means to attain and maintain water quality standards for the impaired water body. During each 303(d) listing cycle the water bodies on the list are prioritized in order to facilitate scheduling and budgeting to develop TMDLs and implementation plans.
Section 303(d) of the Clean Water Act requires states to identify all seriously polluted, or "impaired," water bodies every two years. The states put each polluted water body and its associated contaminants on what they call the "303(d) list." In California, the State Water Resources Control Board and nine Regional Water Boards maintain and update the 303(d) list. Navigating the State Water Boards’ websites to ascertain the total number of impaired water bodies was extremely difficult, even with the assistance of Board personnel.
The 2011 list contains the latest numbers available, and the 2010-2012 report that was due to EPA back in April was not received from the State Water Board; sources claim that those number will not be up for public viewing until possibly the year 2014.
On April 19, 2010 the Draft 2010 Integrated Report (Clean Water Act Section 303(d) List/305(b) Report) became available on a new State Water Board website that enables users to easily search and view water quality assessment information about specific water bodies in California.
Informally, an impaired water body is any water that is not meeting the water quality standards that have been established for that water. Formally, an impaired water body is one that is not attaining water quality standards after technology based discharge limits on point sources are implemented. Section 303(d) of the federal Clean Water Act requires each state to maintain a list of impaired water bodies and revise the list from time to time (currently in even numbered years). See 2008-2010 report to EPA,
EPA has not conducted an evaluation report of the statewide effectiveness of the TMDL approach
Critics point out that the State and Regional Water Boards have had decades to implement the provisions of the CWA, in particular those establishing Total Maximum Daily Loads (TMDLs) for contaminated water bodies listed as water quality impaired. Even in cases where TMDLs have been adopted by regional water boards into the Basin Plans, the State Board has provided waivers, and extended deadlines for compliance, and/or amendments to the Plan.
It is important to note that the water boards are comprised of political appointees, and although they purportedly have their own autonomy, the record indicates that they are politically motivated and have made water rights and water quality decisions that were inconsistent with their mandates; however, it is extremely difficult to hold water board members accountable because they do not answer to voters.
The State Water Boards’ Strategic Plan Update, 2008-2010, states on page 12: “What the Water Boards can realistically do in the next five years (2013). The complex nature of TMDL development and limited staff resources currently prevent the Water Boards from implementing a single TMDL solution. [Emphasis added]. In addition, with TMDL adoptions already addressing one-third of the 2002 Section 303(d) listings (a listing is defined as a water body-pollutant pair, and therefore, a water body may have more than one listing), and efforts underway to address the remaining listings (updated in a 2006 list), a new challenge is vigorous TMDL implementation.” (Italics added.)
To the State Water Board's credit, in the early years it focused funding and efforts on “managing and treatment of point source water discharges” and expended significant sums of money improving wastewater treatment facilities, which, according to a recent government report are in need of significant improvements. However, control of nonpoint source discharges, from agricultural, urban and storm water took sort of a back seat to the CWA mandate, at least up until 2008.
The most recent data published on EPA’s website indicate between 1998 and 2013 a total of 1,601 TMDLs had been approved; this figure represents about 16 percent of the water bodies of the State assessed. On average, the water boards completed about 94 TMDLs per year; maximum number of TMDLs approved in a given year was 416 in 2012; representing about 25 percent of those TMDLs completed to date. In 2010, 55 TMDLS were approved and in 2013 a total of 66 approved.
Part one of this series revealed that California is already immersed in debt with $80 billion in General Obligation (GO) bonds. An estimated 20 percent of the state’s bonded indebtedness is for water- and/or water-related GO bond issuances. The cost to service the state’s outstanding GO bond debt requires about 10 to 11 percent of California’s General Fund.
Between 2000 and 2006, California voters approved $19.6 billion in water-and water-related GO bonds. Many of the bond measures displayed words similar to: “Safe, Clean, and Reliable Drinking water supply.” It costs about two dollars for every dollar to service the debt associated with repayment of GO bonds. GO bonds are not tax free and are a guaranteed investment backed by the full faith and credit of the people of California, and currently pay about five-percent interest to bond investors. It is estimated that the Goldman Sachs investment firm syndicated about 15 to 20 percent of the GO bonds currently issued, according to government sources.
Essentially, the facts indicate that since 1960, Californians have been the unsuspecting victims responsible for footing the bill to supplement the knowingly underfinanced “pay-for-itself SWP.”
The law requires that the SWP beneficiaries (water and power contractors) pay all of the SWP’s reimbursable construction costs plus interest; that has not happened, as those reimbursable costs have been shifted to the unsuspecting public. State Senator Lois Wolk’s water cleanup legislation (SB 42), although somewhat less costly than the $11.5 billion GO bond scheduled for the November 2014 ballot, still misses the point: the SWP contractors should bear those cost, not the general public.
It is important to note that on average, the SWP only provides about six percent of the surface water needs statewide. Contrary to mainstream media hyperbole, the SWP does not provide 25 million Californians with their annual water supplies from the Sacramento-San Joaquin Delta. In fact, according to the former chairman of the Metropolitan Water District of Southern California - the SWP's largest contractor - SWP water only provides about 25 to 30 percent of MWD’s annual water needs.
In an article published recently the California Coastkeeper Alliance published “Don’t-drink-the-water---you-can’t-afford-it" which states:
“Water rate affordability is a central element to water access, and cost makes water excludable and inaccessible to those who cannot afford it,” says Juliet Christian-Smith of the Pacific Institute. “Water affordability is also a major concern to public welfare, safety, and security. When households are unable to make their water payments, consequences can include public health crises, social unrest, and lost revenue for water providers that can threaten their fiscal stability.”
Carolina Balazs, post-doctoral fellow at the University of California-Davis and research scientist with the Community Water Center in Visalia, says that in the Central Valley, unaffordable water rates in small disadvantaged communities with low-income households create significant economic burdens for families.
“But water systems themselves face further constraints,” she says. “As the persistent water quality problems in the [Great Central] Valley worsen, water treatment costs will increase, and systems may be forced to increase their water rates, leading to likely scenarios of increasing water bills in an area already plagued with high levels of unaffordability,” according to the Community Water Center.
The deplorable condition of both surface and groundwater basins in California is directly attributable to the “management and operation” of the federal Central Valley Project (CVP) and the State Water Project (SWP); two of the largest water delivery project in California.
On average those project export annually, 5-6 million acre-feet (an acre-foot is 325,851 gallons) of water to their respective contractors south of the Delta; depending on water availability. A significant portion of the water delivered from the SWP and CVP is consumed by agricultural contractors.
The surface runoff and tainted groundwater being drained off of those Ag lands are laden with polluted and often highly toxic substances that are contributing to the degradation of the waters of the State, in violaton of both federal and state “Anti-degradation policies”.
Ironically, the enabling legislation for both the CVP and SWP made provisions for drainage systems designed to collect the drainage water. However, the CVP never finished the San Joaquin Master Drain, and instead constructed "temporary" evaporation ponds at the now infamous Kesterson Reservoir/Kesterson National Wildlife Refuge, which was ordered shut down by order of the Secretary of the Interior in 1985 and finally closed in 1986.
Kesterson was the site of one of the largest government-induced wildlife catastrophes in American history, causing the death of thousands of migratory birds, poisoned by the trace element selenium in the toxic drainage water. The lesson of Kesterson went unheeded.
Balazs says more and more water systems may find themselves in a difficult financial situation, torn between the need to upgrade or increase treatment to ensure safe drinking water while also keeping water bills low enough for customers to have access to affordable water.
The State Water Board has published Vision” pamphlet which claims “A sustainable California made possible by clean water and water availability for both human uses and environmental resource protection” and also asserts its mission is “[t]o preserve, enhance, and restore the quality of California’s water resources, and ensure their proper allocation and efficient use, for the benefit of present and future generations.”
As the years roll by and conditions worsen, it seems apparent that the State Water Board is not accomplishing either its vision or its mission.
About the authors: Patrick Porgans has been immersed in water-related issues since 1973, and has completed 75 fact-finding reports on various water issues. Most notably, his firm, Porgans & Associates (formerly Red Tape Abatement) completed a 10-year in-depth review of The State of The State Water Project, which revealed the $1.75 billion project was not paying-for-itself as promised. In fact, the inherent shortcomings of the SWP, i.e., underfinanced and purportedly oversubscribed to its water contractors, has been at the source of the so-called “water wars” in a four-decade failed attempt at both. Porgans & Associates fund the activities of Planetary Solutionaries, an independent nonprofit organization whose sole mission is to protect, preserve, enhance and ensure the long-term sustainability of public trust resources. For more information Google Patrick Porgans water or go to www.planetarysolutionaries.org. Lloyd G. Carter is a former journalist and attorney who has a blog at www.lloydgcarter.com and hosts a monthly radio show (second Thursday of each month at 1 p.m.) at KFCF radio in Fresno.