Contact EPA Pacific Southwest Water Division
Pacific Southwest, Region 9
Serving: Arizona, California, Hawaii, Nevada, Pacific Islands, Tribal Nations
California Nonpoint Source Program
Findings and Conditions
FINDINGS FOR THE CALIFORNIA COASTAL NONPOINT PROGRAM
FOREWORD
This document contains the findings for the coastal nonpoint pollution control program submitted by the State of California pursuant to Section 6217(a) of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA). The findings are based on a review of the California Coastal Nonpoint Pollution Program Submittal, September 1995. The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) reviewed this information and evaluated the extent to which it conforms with the requirements of CZARA.
NOAA and EPA commend the State of California on the substantial time and effort put into developing this program and appreciate the commitment the State has shown to complete an ambitious task with limited resources. In keeping with one of the major objectives of section 6217, further development and implementation of the California Coastal Nonpoint Pollution Program is to be coordinated between the State water quality and coastal management programs, and long-term mechanisms to implement the management measures should be incorporated into both agency's programs. NOAA and EPA will continue to work with coastal states and territories to ensure that these findings represent an accurate assessment of current state and territorial abilities and efforts to address coastal nonpoint source pollution. NOAA and EPA recognize that further administrative changes that will affect these findings may be made to the coastal nonpoint program and, once such changes are finalized, will review these findings in light of the changes and make any necessary adjustments.
APPROVAL DECISION
NOAA and EPA approve the coastal nonpoint pollution control program submitted by the State of California pursuant to Section 6217(a) of the Coastal Zone Act Reauthorization Amendments of 1990, subject to certain conditions.
This document provides the specific findings used by EPA and NOAA as the basis for the decision to approve the State's program. It also provides the rationale for the findings and includes the conditions that will need to be met for California to receive final approval of its program. The timeframes associated with conditions become effective upon the date of the approval letter for these findings.
INTRODUCTION
This document is organized by the major nonpoint source categories and subcategories identified in the Section 6217(g) guidance and the administrative elements identified in the program guidance (including the boundary for the 6217 management area). Where appropriate, NOAA and EPA have grouped categories and subcategories of management measures into a single finding. The structure of each finding follows a standard format. Generally, the finding is that the State program includes or does not include management measures in conformity with the (g) guidance and includes or does not include enforceable policies and mechanisms to ensure implementation. In some cases, the finding reflects that the State has identified a back-up enforceable policy but has not demonstrated the ability of the authority to ensure implementation. For further understanding of terms used in this document, the reader is referred to the following:
Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters (EPA, January 1993);The references in this document refer to the California Coastal Nonpoint Pollution Program Submittal, September 1995 ("program submittal"). NOAA and EPA have written this document as succinctly as possible. We have relied upon, but do not repeat here, the extensive information that the State included in the program submittal. Further information and analysis is contained in the administrative record for this approval decision and may be reviewed by interested parties at the following locations:Coastal Nonpoint Pollution Control Program: Program Development and Approval Guidance (NOAA and EPA, January 1993);
Flexibility for State Coastal Nonpoint Programs (NOAA and EPA, March 1995).
EPA/Office of Wetlands, Oceans and Watersheds
Assessment & Watershed Protection Division
Nonpoint Source Control Branch
401 M St., SW (4503-F)
Washington, DC 20460
Contact: Robert Goo (202/260-7025)NOAA/Office of Ocean and Coastal Resource Management
Coastal Programs Division
1305 East-West Highway
Silver Spring, MD 20910
Contact: Bill Millhouser (301/713-3121, ext. 189)U.S. EPA, Region IX
Water Division (W-3-1)
75 Hawthorne Street
San Francisco, CA 94105
Contact: Sam Ziegler (415/744-1990)
I. BOUNDARY
FINDING: California has included the entire State as the management area within which it will implement the coastal nonpoint program. Therefore, California's boundary is sufficient to control the land and water uses that have or are reasonably expected to have a significant impact on the coastal waters of California.
RATIONALE: The State submittal indicates that California has chosen not to develop a separate program for coastal watersheds, but rather will implement a statewide nonpoint source management program that addresses the requirements of Section 6217. Thus, the 6217 management area encompasses the entire State. This is consistent with the State's approach of preparing the section 6217 program submittal as a means to update its Section 319 Nonpoint Source Program. In this manner, California can improve the effectiveness of its program statewide by addressing a wide range of nonpoint source issues, while protecting State coastal waters in compliance with section 6217. In addition, this approach accurately reflects the ecological relationships that exist for many of California's stream systems whose headwaters are far from the coast but ultimately flow to the Pacific Ocean.
II. AGRICULTURE
FINDING: California's program includes management measures in conformity with the (g) guidance and enforceable policies and mechanisms to address the management measures for large and small confined animal facilities. California's program does not include management measures in conformity with the 6217(g) guidance to address the remainder of the agricultural management measures. The State has identified a back-up enforceable authority but has not yet demonstrated the ability of the authority to ensure widespread implementation throughout the 6217 management area.
CONDITION: Within two years, California will include in its program management measures in conformity with the 6217(g) guidance, other than for large and small confined animal facilities. Within one year, California will develop a strategy (in accordance with Section XIV, page 18) to implement the agricultural management measures throughout the 6217 management area.
RATIONALE: Sections 2560-2565 of the regulations (23 Cal.Code Reg.) implementing the Porter-Cologne Water Quality Control Act (Cal. Water Code 13000 et.seq.) require all animal facilities to implement standards consistent with the confined animal facility management measures. The Regional Water Quality Control Boards (RWQCBs) can waive requirements on an industry wide basis, but the standards must be made a condition of the waiver. As noted on page 160 of the submittal, waivers of these requirements have been given routinely by some RWQCBs to dairy facilities on an industry wide basis. EPA and NOAA strongly encourage the State to implement the TAC Report recommendations regarding various activities to ensure widespread implementation of the management measures.
Regarding the other 6217 (g) agricultural management measures, California's program submittal lists the management measures set forth in the 6217(g) guidance, but it does not indicate whether California intends to implement these measures, nor does it describe any practices that would be used to implement the measures. California appears to have several authorities and programs that could be used to implement the agricultural management measures. The State identifies the Porter-Cologne Water Quality Control Act as providing back-up authority to implement the 6217(g) management measures, but the State's preferred approach as described in the submittal is to encourage voluntary implementation activities through local comprehensive watershed management efforts. California's Nonpoint Source Program utilizes a three-tiered approach to protect California's water quality: a voluntary approach (Tier 1); regulatory encouragement (Tier II); and, mandatory implementation through effluent requirements and waste discharge permits (Tier III).
Other authorities which, per the State, can be used to implement management measures include Section 5650 of the Fish and Game Code, which provides enforceable authority where "any substance or material deleterious to fish, plant life, or bird life" enters or is placed where it can enter waters of the State, and Sections 11501 et.seq. of the Food and Agriculture Code, which provide for protection of the environment from pesticides, but do not specifically require implementation of the pesticide management measure. While these and other programs and authorities appear usable to help implement the management measures in some situations, the State has not presented an implementation strategy that ensures widespread implementation.
Application of the measures may best be achieved if coordinated to produce an overall system of site-appropriate practices. The Natural Resources Conservation Service's (NRCS) whole farm planning process is one important tool that could be used to apply multiple management measures within the framework of an overall system that works for the individual producer. NOAA and EPA also recommend that the State's implementation strategy integrate the recommendations of the Technical Advisory Committees for irrigated agriculture, nutrients and pesticides to implement the management measures.
III. FORESTRY
FINDING: California's program includes management measures in conformity with the 6217(g) guidance and includes enforceable policies and mechanisms for implementation. However, additional management measures are necessary in order to attain and maintain water quality standards (see Section XII, page 16).
RATIONALE: The primary authority in California to implement the management measures for forestry in conformance with the 6217 (g) guidance comes from the Z'berg-Nejedly Forest Practice Act (FPA) (Cal. Pub. Res. Code 4511 et.seq.). Regulations (14 Cal. Code Reg. 895 et.seq.) adopted pursuant to this law include practices in conformity with the management measures. The State Water Resources Control Board (SWRCB) and the Regional Water Quality Control Boards (RWQCBs) also have oversight over nonpoint discharges associated with forestry operations through the Porter-Cologne Act. The Porter-Cologne Act provides back-up authority for implementing the management measures, including waste discharge requirements, cease and desist orders, cleanup and abatement orders, civil monetary liability for specified violations, and criminal prosecutions for specified violations.
Prior to any timber harvest on non-federal lands, a Timber Harvest Plan (THP) must be prepared by a Registered Professional Forester. A multidisciplinary and interagency review is intended to be conducted for all THPs to meet the functional equivalency requirements of environmental documentation under the California Environmental Quality Act (CEQA). These activities are carried out primarily by the California Department of Forestry and Fire Protection and the Board of Forestry(CDF/BOF), as well as the RWQCBs, in accordance with the Water Quality Management Plan for Timber Operations on NonFederal Lands, and the Management Agency Agreement (MAA), as overseen by the SWRCB.
Although California does have the basic legal and programmatic tools to implement a forestry program in conformity with Section 6217, these tools have not been fully effective in ensuring water quality standards are attained and maintained and beneficial uses are protected. California waters currently experience significant impacts from forestry. For example, silviculture is the leading source of impairment to water quality in the North Coast of California. Related to these water quality problems, California has a number of species, in particular salmon, that are endangered, threatened or otherwise seriously at risk, due in very significant part to forestry activities that impair their spawning, breeding and rearing habitat.
Section 6217 recognizes that implementation of the (g) management measures alone may not always be adequate to protect coastal waters from nonpoint sources of pollution. In these cases, Section 6217 requires the identification and implementation of additional management measures. Thus, California will need to adopt additional management measures for forestry to address coastal waters that are not attaining or maintaining applicable water quality standards or protecting beneficial uses, or that are threatened by reasonably foreseeable increases in pollutant loadings from new or expanding forestry operations. (See Section XII, page 16)
IV. URBAN
A. New Development, Watershed Protection, Existing Development, Site Development, Construction Site Erosion And Sediment Control, Construction Site Chemical Control, New and Operating Onsite Disposal Systems, and Pollution Prevention
FINDING: California's program does not include management measures in conformity with the 6217(g) guidance. The State has identified a back-up enforceable policy and mechanism, but has not yet demonstrated the ability of the authority to ensure implementation throughout the 6217 management area.
CONDITION: Within two years, California will include in its program management measures in conformity with the 6217(g) guidance. Within one year, California will develop a strategy (in accordance with Section XIV, page 18 ) to implement these management measures throughout the 6217 management area.
RATIONALE: The State's program does not include management measures in conformity with the urban management measures in the 6217(g) guidance. The State submittal references authorities that may be able to address some of the management measures through programs or processes at the State or local level. These include the State General Plan Law (Cal. Govt. Code 65000 et.seq.), the Subdivision Map Act (Cal. Govt. Code 66410 et.seq.), the California Environmental Quality Act (Cal. Pub. Res. Code 21000 et.seq.), and the California Coastal Act (Cal. Pub. Res. Code 30000 et.seq.). However, it is unclear what the State role would be under these authorities in ensuring implementation of the management measures. The State has identified the Porter-Cologne Act as a back-up authority, but has not demonstrated the ability of the Act to ensure implementation of the management measures throughout the 6217 management area. These statutes provide a framework that has resulted in the implementation of various aspects of the urban management measures in specific jurisdictions. The framework also provides individual communities with flexibility to address local conditions in implementing the State's water quality policies and objectives.
The State's submittal indicates that some local communities have excellent programs and authorities addressing individual management measures, e.g., the wetland and riparian corridor protection ordinance of the City of Fairfield; the erosion and sediment control ordinances of Monterey and Santa Cruz Counties; the grading ordinance of Fremont; and the OSDS maintenance program of Stinson Beach in Marin County. However, the State has not demonstrated that, either individually or in combination, the overlay of State and local statutes and programs results in conformity with the management measures. In addition, the State has not developed State-level management measures for OSDS and new development.
The California General Plan Law requires all local governments to prepare a General Plan for the development of their cities and counties and outlines State requirements governing the contents of the General Plan. Local governments are granted planning and land use regulation authority through the State constitution, though the State determines the manner in which these powers are exercised. Several elements required under the State General Plan Law are particularly relevant to the urban management measures: the land use, conservation and open space elements. General Plan Guidelines are prepared by the State's Office of Planning and Research as advisory guidelines that address the required elements of the General Plan. NOAA and EPA encourage the State to consider revising the General Plan Guidelines to conform with the urban management measures.
With certain exceptions, all projects for which discretionary governmental approval is required and which may have significant effects on the environment are subject to review under the California Environmental Quality Act (CEQA). CEQA states that each public agency must "mitigate or avoid the significant effects on the environment of projects" it approves or carries out whenever it is feasible to do so. If an agency finds that economic, legal, social, technological, or other considerations make infeasible either mitigation measures or alternatives to address a particular environmental effect, the agency must find that economic, legal, social technological, or other benefits of the project outweigh the significant effect on the environment (Section 21081). As indicated by the Urban TAC Report, the Environmental Checklist distributed by the Office of Planning and Research needs to be revised to include appropriate provisions to address watershed, water quality and nonpoint source pollution impacts. This would also help ensure consistency among various local and regional plans, including Water Quality Basin Plans prepared by the Regional Water Quality Control Boards under the Porter-Cologne Act.
California's Subdivision Map Act contains elements that partially address the construction site erosion and sediment control, the watershed protection and the site development management measures. The Act requires local governments: 1) to adopt subdivision ordinances that specifically provide for proper grading and erosion control, including the prevention of sedimentation (section 66411); and 2) to deny approval of subdivision plans that are likely to cause substantial environmental damage or substantially and avoidably injure fish, wildlife or their habitat (section 66474).
Finally, the California Coastal Commission Management Program reviews and certifies cities' and counties' Local Coastal Programs (LCP) and requires permits for new development in the coastal zone, not covered by a certified LCP, to ensure conformity with the Coastal Act policies. Examples of these policies include provisions for the protection of environmentally sensitive habitat areas and the maintenance and restoration of the biological health of water bodies. Before LCP certification and during the LCP review process, the Coastal Commission can require local governments to incorporate or upgrade ordinances to include management measures such as prohibitions on steep slopes, erosion control plans and protection of sensitive water bodies. Once an LCP is certified, the local government is delegated the majority of the responsibility to control coastal development and local governments have great flexibility to tailor local programs to reflect local issues and concerns. Once LCPs have been certified, the Coastal Commission cannot exercise permit authority over new development within the jurisdiction of the LCP, nor can it require amendments to certified LCPs. The Commission does maintain some authority in that some actions taken by local governments on Coastal Development Permits can be appealed to the Commission. The State has not demonstrated that Local Coastal Programs generally contain provisions that result in full implementation of the new development, watershed and site development management measures.
California is encouraged to pursue its Technical Advisory Committees' recommendations for urban runoff and onsite disposal systems. Implementation of selected approaches laid out in the relevant TAC reports would likely result in conformity with the management measures and would provide consistent statewide implementation. This approach, which would specify minimum program elements to be implemented by the responsible agencies (local governments, RWQCBs and SWCBs), would also provide the flexibility necessary to utilize existing programs and tailor individual programs to local conditions.
B. Roads, Highways, and Bridges
FINDING: California's program does not include management measures in conformity with the 6217(g) guidance or enforceable policies and mechanisms to ensure implementation of these measures throughout the 6217 management area. The State has identified a back-up enforceable policy and mechanism for implementing the management measures, but has not yet demonstrated the ability of the authority to ensure widespread implementation throughout the 6217 management area.
CONDITION: Within two years, California will include in its program measures in conformity with the 6217(g) management measures. Within one year, California will develop a strategy (in accordance with Section XIV, page 18) to implement the management measures throughout the 6217 management area.
RATIONALE: California's program identifies some authorities that could be used to implement the management measures for planning, siting and development of roads, highways and bridges. For example, the California Environmental Quality Act (CEQA) requires State agencies, cities and counties to prepare an environmental impact report if a proposed project could have a significant impact on the environment. Environmental Information Forms and Checklists are required by CEQA from project applicants and lead agencies respectively. As discussed under IV.A. above, lead agencies are required to mitigate or avoid adverse environmental effects of a proposed project unless an agency finds that economic, legal, social, technological or other benefits of the project outweigh a significant effect on the environment. The Porter-Cologne Act provides back-up authority for implementing the management measures, including waste discharge requirements, cease and desist orders, cleanup and abatement orders, civil monetary liability for specified violations, and criminal prosecutions for specified violations.
California has identified the California Department of Transportation (Caltrans) in its program submission as the lead agency for construction, operation, and maintenance of highways. However, California has not identified the specific aspects in Caltrans' program that address the management measures. In addition, the program does not include management measures or enforceable policies and mechanisms to address the construction, operation and maintenance of roads, highways and bridges not under the jurisdiction of Caltrans. California is encouraged to pursue its Urban Runoff Technical Advisory Committees' recommendations for roads, highways and bridges. Implementation of selected approaches laid out in this report would likely result in conformity with the management measures and would provide consistent statewide implementation.
V. MARINAS AND RECREATIONAL BOATING
FINDING: California's program does not include management measures in conformity with the 6217(g) guidance. California's program includes enforceable policies and mechanisms to address the siting and design management measures, but cannot ensure implementation for all marinas. The program includes enforceable policies and mechanisms to ensure implementation of some of the operation and maintenance management measures, and the State has identified a backup enforceable policy and mechanism, but has not demonstrated the ability of the authority to ensure implementation throughout the 6217 management area.
CONDITION: Within two years, California will include in its program management measures in conformity with the 6217(g) guidance. Within one year, the State will develop a strategy (in accordance with section XIV, page 18) to ensure implementation of the management measures throughout the 6217 management area.
RATIONALE: The State lists EPA's management measures, but does not specifically commit to using and implementing them as the State's management measures. Several agencies in the State have authority to regulate and issue permits for new and expanding marinas. Agencies with primary responsibility for permitting marinas are the State Lands Commission, San Francisco Bay Conservation and Development Commission, and the California Coastal Commission. However, the submittal notes that there are instances where none of these three State agencies will have authority over the siting of a new or expanding marina, i.e., where a proposed inland marina is being created from upland. In addition, the submittal indicates that hull maintenance areas are subject to the NPDES program, and therefore, are exempt from the State's program. However, it is unclear whether all hull maintenance areas receive coverage under the NPDES program.
The State's program identifies enforceable policies and mechanisms for some of the operation and maintenance management measures, but it is not clear how these authorities can be used to implement the management measures or whether they apply to all marinas. For example, in implementing the management measures for solid waste and liquid material, the Department of Fish and Game can enforce a prohibition against deposition of certain substances into or where it can pass into waters of the State. However, it is unclear whether the program under this authority adequately addresses the substances and marinas subject to these management measures.
The State has identified the waste discharge requirements under the Porter-Cologne Act as a backup enforceable policy and mechanism, but has not demonstrated the ability of this authority to ensure implementation of the management measures throughout the 6217 management area.
Through its role in LCP development and implementation, the issuance of coastal development permits, and the review of federal licenses and permits under section 307 of the CZMA, the CCC possesses several tools to implement many aspects of marina management measures. As suggested by the California Coastal Commission, implementation of the marina management measures could be enhanced by the development of a BMP manual for marinas. California is encouraged to pursue its Technical Advisory Committees' recommendations for Marina and Recreational Boating. Implementation of the approaches laid out in the TAC report, for example those pertaining to education and outreach, will assist in achieving the management measures.
VI. HYDROMODIFICATION
FINDING: California's program does not include management measures in conformity with the 6217(g) guidance. The State has identified a back-up enforceable policy and mechanism, but has not yet demonstrated the ability of the authority to ensure widespread implementation throughout the 6217 management area.
CONDITION: Within two years, California will include in its program measures that are in conformity with the 6217 (g) guidance for hydromodification. Within one year, California will develop a strategy ( in accordance with Section XIV, page 18 ) to implement the management measures throughout the 6217 management area.
RATIONALE: California's program does not contain management measures for channelization and channel modification, dams, or shorelines and streambanks. The State has identified some authorities as having the potential to implement these management measures. These include the Fish and Game Code Sections 1600 et.seq., as well as the State General Plan law and the California Environmental Quality Act. In addition, the State has identified the Porter-Cologne Water Quality Control Act as a backup enforceable policy and mechanism, but has not demonstrated the ability of this authority to ensure widespread implementation throughout the 6217 management area.
For some types of hydromodification projects, the RWQCB's can require evaluation of proposed projects and mitigation of impacts to water quality and habitat. Conditions can also be added to agreements negotiated between the Department of Fish and Game and persons or agencies proposing to alter waterways that will assist in implementing some of the management measures for hydromodification. However, if there is disagreement, the Department must submit to binding arbitration. Further, the State's submittal does not include any information that indicates that these authorities are being used to implement the management measures. The State's environmental impact assessment law (CEQA) can be used to identify shorelines and streambanks, and wetlands and riparian areas, and require mitigation measures to protect these areas from adjacent uses wherever feasible. (See discussion under IV.A. above.). The State Lands Commission can further assist in implementing the management measures for hydromodification through its responsibility for any lease agreements allowing development on lands owned by the State, including tidelands and submerged lands. Local governments have broad general powers through the State General Plan Law (Cal. Govt. Code Section 65000 et.seq.) to guide the development of land through their General Plans. Several elements required under State General Plan law are particularly relevant to hydromodification, though these authorities are unevenly applied throughout the State.
California is encouraged to pursue its Technical Advisory Committees' recommendations for hydromodification. Implementation of selected approaches laid out in the relevant TAC reports would likely result in conformity with the management measures and would provide consistent statewide implementation. This approach, which would specify minimum program elements to be implemented by the responsible agencies (local governments, RWQCBs and SWCBs), would also provide the flexibility necessary to utilize existing programs and tailor individual programs to local conditions.
VII. WETLANDS, RIPARIAN AREAS, AND VEGETATED TREATMENT SYSTEMS
FINDING: California's program includes management measures in conformity with the 6217(g) guidance, except the State's program does not contain management measures for the protection of wetlands and riparian areas. The State has identified a back-up enforceable policy and mechanism, but has not yet demonstrated the ability of the authority to ensure widespread implementation throughout the 6217 management area.
CONDITION: Within two years, California will include in its program measures that are in conformity with the 6217 (g) guidance for the protection of wetlands and riparian areas. Within one year, California will develop a strategy ( in accordance with Section XIV, page 18 ) to implement the management measures throughout the 6217 management area.
RATIONALE: The State's program contains management measures to promote restoration of wetlands and riparian areas, and to promote the use of vegetated treatment systems. For example, the Coastal Conservancy has an active program to acquire, restore and enhance wetlands, and the Department of Water Resources has an assistance program dedicated to restoring urban creeks. The promotion of the use of vegetated treatment systems can be implemented through the Regional Water Quality Control Boards (RWQCBs) issuance of Waste Discharge Requirements specifying runoff quality that will result in dischargers using vegetated treatment systems or similar practices. Conditions can be negotiated to agreements between the Department of Fish and Game and persons proposing to alter waterways that include the establishment of vegetated treatment systems. In addition, the State Water Resources Control Board (SWRCB) has developed a BMP handbook for stormwater which identified six different types of vegetated treatment systems as potentially appropriate runoff controls.
Within the coastal zone, there are several enforceable polices and mechanisms that implement the management measures. Under the California Coastal Act, the California Coastal Commission has direct permitting authority in tidelands, submerged lands and public trust lands. In addition, the Commission has authority to certify local land use plans in conformity with adopted policies. Section 30231 of the California Coastal Act mandates the maintenance and, where feasible, the restoration of wetlands, as well as the protection of wetlands from surface runoff. The Bay Conservation and Development Commission (BCDC) implements the McAteer-Petris Act and Suisun Marsh Preservation Act which include policies to limit the filling of wetlands within BCDC's jurisdiction. In part, these policies are implemented through BCDC's permit authority over structures, and dredging and filling activities in San Francisco Bay, including some tributaries, as well as permit authority and designation of priority use areas in a 100-foot band around the Bay.
In addition, the State has other programs, such as those discussed under Hydromodification above, that could be used to help implement the management measures in areas beyond the jurisdiction of the CCC and BCDC. However, the State's submittal is unclear how these authorities can be used to ensure implementation of the management measure for the protection of wetlands and riparian areas throughout the 6217 management area.
California is encouraged to pursue its Technical Advisory Committees' recommendations for wetlands. Implementation of selected approaches laid out in the relevant TAC reports would likely result in conformity with the management measures and would provide consistent statewide implementation.
VIII. ADMINISTRATIVE COORDINATION
FINDING: California's program does not include adequate mechanisms to improve coordination among State agencies and between State and local officials in implementing the coastal nonpoint program.
CONDITION: Within one year, California will include in its program mechanisms for ensuring coordination among State agencies and between State and local officials with a role in the implementation of the coastal nonpoint program.
RATIONALE: California is encouraged to pursue its "Initiative In Nonpoint Source Management" recommendations for interagency coordination. The "Initiatives" document and the appendices of the submittal describe several existing mechanisms, including the Interagency Advisory Committee, that coordinate some federal, State and local efforts to addresses nonpoint sources of pollution. Since the time of the program submittal, the IAC has been deactivated. The State should consider reactivating this group as one mechanism for interagency coordination. The submittal does not describe how any of the listed mechanisms will be used to specifically ensure the implementation of the management measures. In addition, there is little information on how the California Coastal Commission, the State Water Resources Control Board, and the Regional Water Quality Control Boards will coordinate during program implementation. Finally, most of the Technical Advisory Committee reports also identify needs for improved coordination to successfully address nonpoint sources of pollution. NOAA and EPA recognize that the State's proposal to implement the program through a watershed approach will provide a mechanism to foster coordination; however, the State needs to provide specifics on the watershed approach and how the primary entities will work together to implement the program. These issues may be addressed under the recent Watershed Management Initiative; however, mechanisms need to be established to ensure that such efforts are consistent with the 6217 program, including the requirement for public participation. The State is encouraged to take advantage of the resources and expertise of other parties by coordinating with federal agencies and private sector representatives.
IX. PUBLIC PARTICIPATION
FINDING: California's program provides opportunities for public participation in the development and implementation of the coastal nonpoint program.
RATIONALE: In the program submittal, California detailed numerous activities and mechanisms that were utilized to involve the public in developing the program. The State developed a series of technical advisory committees (TACs) for most of the source categories. The TACs made recommendations on how to improve the State's nonpoint source program.
In addition, the State made a series of presentations on the program before the California Coastal Commission and the State Water Resources Control Board, as well as interest groups such as farm bureaus, environmental groups and harbor associations. Public comment was solicited at several stages of the development process. Comments received by the State during the public review of the coastal nonpoint program have been included in Appendix 22 of the program submittal.
NOAA and EPA urge the SWRCB and the CCC to actively seek broad public participation in the further development and implementation of the coastal nonpoint program. Ongoing public participation is an essential element of a coastal nonpoint program. For example, the State is urged to follow-up on the TAC process. The TACs provided many good recommendations to improve nonpoint source management, and the State should ensure that the best recommendations are addressed. The State is urged to build upon the participation efforts initiated through the TAC process to ensure broad public participation in program implementation. These participation activities should be specified in California's implementation strategies. Public support for the program also would be enhanced by regular communication on the State's progress in implementing its efforts to protect and restore coastal waters.
X. TECHNICAL ASSISTANCE
FINDING: The California program does not include programs that will provide technical assistance to local governments and the public for implementing additional management measures.
CONDITION: Within three years, the State will develop programs or expand existing programs to provide technical assistance to local governments and the public for implementing additional management measures.
RATIONALE: The State's submittal (pages 210 and 211) identifies some State and Federal programs that provide technical assistance to the public and local governments generally on nonpoint pollution control. However, the State has not identified technical assistance vehicles to address forestry or hydromodification. In addition, as discussed under Section XII, where the State develops additional management measures, it will need to ensure that a mechanism is available to provide information to local governments, public interest groups, agencies, landowners and operators on those additional management measures.
XI. CRITICAL COASTAL AREAS
FINDING: California's program does not identify and include a process for the continuing identification of critical coastal areas adjacent to impaired and threatened coastal waters.
CONDITION: Within one year, California will revise its process to provide for the identification of critical coastal areas beyond the existing coastal zone boundary and within watersheds draining into Monterey Bay.
RATIONALE: The State's program includes several of the components necessary for the identification of critical coastal areas. California reviewed existing State programs that implement sections 319(a)(1) and 303(d) of the Clean Water Act as a starting point to evaluate and identify critical coastal areas for the purposes of section 6217. The State developed a working definition of critical coastal areas to include "the coastal zone portions of watersheds which drain into impaired and threatened coastal waters". Areas meeting this definition are listed in the State's submittal.
There are two factors that preclude the State from fully meeting the critical coastal area requirements: restriction of critical coastal areas to the existing coastal zone, and exclusion of the watersheds draining into Monterey Bay. The State proposes to limit the inland extent of critical coastal areas to the existing coastal zone boundary. In some cases, the coastal zone boundary is as narrow as 100 feet inland from mean high water. Thus, the truncation of critical coastal areas at the coastal zone boundary may not provide adequately for the implementation of additional measures needed to protect against current and anticipated nonpoint source problems.
The State also proposes to exclude watersheds draining into Monterey Bay from consideration as critical coastal areas. As discussed in the Program Development and Approval Guidance, States are encouraged to include previously designated areas, such as Marine Sanctuaries, as critical coastal areas. NOAA and EPA are involved in a joint effort with the State to develop a water quality plan for the Monterey Bay National Marine Sanctuary (MBNMS), however, the water quality plan has not been completed. When completed, the State may be able to use the MBNMS water quality plan as a mechanism to apply additional management measures to critical coastal areas within watersheds draining to Monterey Bay.
XII. ADDITIONAL MANAGEMENT MEASURES
FINDING: California's program does not provide for the identification of additional management measures and the continuing revision of management measures applicable to critical coastal areas and cases where (g) measures are fully implemented but water quality threats or impairments persist.
CONDITION: Within two years, California will include in its program a process for developing and revising management measures to be applied in critical coastal areas and in areas where necessary to attain and maintain water quality standards. Within one year, the State will identify additional management measures for forestry necessary to attain and maintain water quality standards.
RATIONALE: California's program identifies some critical coastal areas. In addition, it provides an example of how management measures are applied within a critical coastal area (Tomales Bay watershed). However, the program does not include a continuing process, including milestones for implementing, evaluating and, as necessary, revising the additional management measures. The 6217 Program Development and Approval Guidance identifies a number of alternatives for selecting additional management measures. These include developing measures not covered in the (g) guidance, and applying the (g) measures more intensively or more stringently. The State needs to establish a continuing process for identifying and implementing additional management measures that includes milestones for implementation, evaluation and, as necessary, revision.
California needs to develop and implement additional management measures for forestry. As discussed in Section III above, California's program includes management measures for forestry in conformity with the (g) guidance. However, in some cases, these measures have been ineffective for attaining and maintaining water quality standards and protecting beneficial uses. As indicated in the State's submittal "(m)ost of the critical coastal areas in this region [the North Coast of California] are impaired because of historical and current timber harvesting". To address this type of situation, CZARA provides for the implementation of additional management measures. Therefore, NOAA and EPA have included a condition regarding the need for additional forestry management measures.
The need to improve California's forestry program to protect water quality has been documented during the past decade by federal and State agencies including EPA and the California Department of Forestry and Fire Protection (CDF). In 1988, EPA reviewed the Water Quality Management Plan for Timber Operations on NonFederal Lands submitted by the State Water Resources Control Board, and set forth specific conditions that addressed inspection and compliance, monitoring and evaluation, enforcement, conflict resolution and financial capability.
According to the State's 1995 CDF report (discussed below) and the CZARA evaluation report (UC Davis, 1995), many of these concerns and issues are still unresolved today.
In October, 1995, the State issued a Final Report on Implementation and Effectiveness of the Watercourse and Lake Protection Rules (CDF 1995) to obtain a qualitative assessment of the Watercourse and Lake Protection Rules (WLPZ) rule performance and needs. The Report summarized problems and proposed improvements in numerous areas related to the management measures including roads, landings, and skid trails; watercourse crossings; soil and debris stabilization; and enforceable standards and rule evaluation. Furthermore, as part of the State's preparation of its 6217 submittal, a report was prepared entitled Evaluation of the Coastal Zone Management Act, April 1995, that raised similar concerns regarding the adequacy of the Forest Practices Rules to protect water quality and the environment, particularly as they relate to mass wasting, road planning in landslide-prone areas, and sizing of drainage structures.
As the water quality management agency for silvicultural activities, the Board of Forestry and CDF should utilize their established processes for identifying and implementing additional forestry management measures necessary to attain and maintain water quality standards. In identifying additional forestry management measures, California should refer to the interagency team report which is being developed to address concerns raised in the Final Report on Implementation and Effectiveness of the Watercourse and Lake Protection Rules report (CDF,1995). In addition, the State should build upon related efforts including: recommendations from the Coastal Salmon Initiative, which is developing voluntary measures for landowners to undertake to address adverse effects of forestry activities on salmon habitat and populations; the Northwest Forest Plan; and, other related watershed activities that are addressing nonpoint source pollution related to forestry activities.
XIII. MONITORING
FINDING: California's program does not include a plan to assess over time the success of the management measures in reducing pollution loads and improving water quality.
CONDITION: Within one year, California will include in its program a plan that enables the State to assess over time the extent to which implementation of management measures is reducing pollution loads and improving water quality.
RATIONALE: California partially describes several federal, State, and local monitoring programs that have potential for assessing over time the success of the management measures in reducing pollution loads and improving water quality. It appears that California could use these and other monitoring efforts to meet Section 6217 monitoring needs, but the State has not yet described in adequate detail how these monitoring programs and techniques will be applied to assess over time the extent to which the management measures are reducing pollution loads and improving water quality.
California should prepare an assessment plan that includes information regarding the number and location of monitoring stations, the types and frequency of water quality data being collected, and the analytic approaches that will be employed in conjunction with existing monitoring efforts to assess the success of management measures in achieving water quality objectives. The State should include some inexpensive tracking of management measure implementation in conjunction with water quality monitoring, as such information is needed to assess the success of management measures in achieving water quality objectives. Furthermore, California is encouraged to pursue its "Initiative In Nonpoint Source Management" recommendations for monitoring and assessment as part of this plan.
EPA and NOAA recognize that the California State Water Resources Control Board, in cooperation with EPA Region 9, is currently developing a state-wide monitoring strategy. The State is strongly encouraged to coordinate the development of this monitoring strategy with its plan to assess over time the success of the 6217 management measures.
XIV. STRATEGY AND EVALUATION FOR BACK-UP AUTHORITIES
Within one year, California will develop a strategy to implement the management measures for agriculture, urban areas, marinas, hydromodification, and wetlands throughout the 6217 management area. This strategy will include a description and schedule for the specific steps the California Coastal Commission and the State Water Resources Control Board, along with the appropriate Regional Boards, will take to ensure implementation of the management measures; describe how existing backup or new authorities can be used to ensure implementation where voluntary efforts are unsuccessful; and identify measurable results which, if achieved, will demonstrate the State's ability to achieve widespread implementation of the management measure using the described approach. (For additional information, see footnote 1.)
California will also develop and apply credible survey tools to demonstrate the ability of the State's approach to achieve widespread implementation of these management measures. The use of credible assessment techniques is necessary in order for NOAA and EPA to evaluate after the end of the three year period described in the March 16, 1995 guidance issued by NOAA and EPA entitled Flexibility for State Coastal Nonpoint Programs, whether the State's approach has been successful or whether new, more specific authorities will be needed.