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Home My WebLink About18 NSMP DAILY LOAD TIME SCH 12-01-09Agenda Item 18 • Reviewed: ~- ~~y ~ AGENDA REPORT City Manager ~~... Finance Director MEETING DATE: DECEMBER 1, 2009 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: DOUGLAS S. STACK, ACTING DIRECTOR OF PUBLIC WORKS/CITY ENGINEER SUBJECT: NITROGEN AND SELENIUM MANAGEMENT PROGRAM (NSMP) TOTAL MAXIMIUM DAILY LOAD TIME SCHEDULE COMPLIANCE ORDER SUMMARY In May 2009, the Santa Ana Regional Water Quality Control Board (SARWQCB) adopted the Order R8- 2009-0030, Urban stormwater Runoff Permit (MS4) for North Orange County. Under this new MS4 permit, effective July 1, 2010; the City of Tustin will be required to expand its stormwater pollution prevention program. The Permit requires that Cities develop a residential outreach program, increase the inspections of commercial facilities, develop an outreach program for mobile businesses, and require developers to incorporate additional stormwater treatment controls and testing. In addition to the requirements of the MS4 Permit, the City of Tustin is subject to multiple Total Maximum Daily Load (TMDL) requirements by the SARWQCB. On December 10, 2009 the SARWQB will adopt a Time Schedule Order (TSO) for selenium as an interim measure while a TMDL for selenium is developed over the next two years. With the addition of Selenium TMDL, the cost of the City's storm water program is expected to increase significantly. RECOMMENDATION Receive and file as an information item. FISCAL IMPACT The City currently provides funding (i.e. General Fund) for various programs as part of its water quality compliance budget. The attached matrix identifies the programs/permits and the expenditures for the past six years and shows the budget for the current fiscal year 2009-10. For the most part, the water quality compliance budget has increased steadily since the 2003-04 fiscal year. However, with the new requirement of compliance with the Selenium TMDL, at a moving target estimated of $55 million dollars over 15 years, it is anticipated that the City's fair share of these costs will increase substantially. BACKGROUND Selenium (Se) is a naturally trace element in the environment. It is an essential nutrient for fish, birds, animals, and humans. Excessive amounts of selenium are found to cause toxicity in wildlife. Toxicological effects of selenium on wildlife include lowered reproduction rates, shortened life spans, and stunted growth (Newport Bay Toxics TMDL). In the Newport Bay watershed, selenium derived from ancient marine sediments in local foothills accumulated over several thousand years. In Tustin, this area is generally east of the 55 freeway, south of the foothills, west of the 241, and north of Barranca Parkway. These marine sediments become a near limitless source of selenium because of the high water table in the area. Groundwater tends to transport selenium into open channel culverts and flood control channels through seeps, springs, and weep holes that eventually discharge into upper Newport Bay. Biological Studies indicate selenium accumulates in the food chain through uptake and consumption by plants and wildlife and can have adverse affects on fish and birds although, no adverse affects have been detected within the Newport Bay Watershed. Similarly, nitrogen is an essential nutrient but has harmful effects when the levels are excessive. In the past, the major source of nitrogen in the watershed was runoff from commercial nurseries. The current source is groundwater which has received nitrogen from the watershed's historic agricultural land uses. Since there is no known process for removing selenium and nitrogen from the waters of the Newport Bay Watershed, the SARWQB issued a De Minimus Permit (R8-2004-0021), which regulates short term groundwater related discharges that would otherwise be subject to non-discretionary Mandatory Minimum penalties. The penalties could range from $3,000 to $13,000 per occurrence, per day. The Permit also allows for a compliance approach that consists of implementing a Work Plan to investigate selenium and nitrogen sources and imports, as well as treatment or reduction methods. As a result, the Nitrogen and Selenium Management Program (NSMP) was formed. The NSMP is the effort of the stakeholders, of which Tustin is a member, to develop and implement a sensible approach to selenium and nitrogen compliance. However, this "performance-based" compliance will no longer be allowed by the SARWQCB after December 20, 2009. The SARWQCB staff is in the process of developing a Total Maximum Daily Load (TMDL) for selenium that will include an implementation plan and compliance schedule. A TMDL is a regulatory process that sets an allowable limit for a particular pollutant in a water body at a level, or load, from all sources that will not adversely impact beneficial uses of the designated water body. The goal has been for the SARWQCB, working in concert with the NSMP, to adopt a Selenium TMDL by December 20, 2009. Unfortunately, this is not going to happen. In addition, a Selenium TMDL requires approval by the U.S. Environmental Protection Agency and the State Office of Administrative Law. Combined, that process alone can take up to two years or more to achieve. In the meantime, the County and other dischargers are working with the SARWQCB staff to develop an acceptable and appropriate Time Schedule Order (TSO). TSOs are a tool used frequently by Regional Boards to provide dischargers with relief from otherwise non-discretionary Mandatory Minimum Penalties. Ultimately, "safe harbor" language will be built into the TSO to limit the non-compliance and potential use of non-discretionary Mandatory Minimum penalties as this TMDL is developed. Once the new Selenium TMDL is approved by the state, the TSO will no longer be necessary and participation in the NSMP will meet compliance with the TMDL requirements. With future cost estimates over $55 million countywide for a Selenium TMDL, the County of Orange, as the lead agency, realizes that this will have a significant economic impact on the municipalities and is looking at ways to reduce the direct costs. The County is seeking to increase the membership of the NSMP by seeking developers who are currently not enrolled in the program. Other members in the NSMP have proposed that the County Board of Supervisors pursue a countywide stormwater fee to address the rising costs of the program. Staff will continue to monitor and participate in this process, to the extent nec~ary. ~ Douglas S. ack, P.E. '~~ Doug Anderson Acting ire or of Public Works/City Engineer Transportation and Development Services Manager Attachment: Water Quality Compliance Expenditures s:\City Council items\2009 Council items\Nitrogen Selenium.docx N CI L 3 i_+ d a K W d v C ~Q O V R /3 V L d a+ R 3 0 0 0 0 0 0 0 t- o °o °o °o °o 00 00_ N O _ = N N O O EA Cfl r f14 EA fA ~ ~~ ~ O ~ r I~ ~ M ~"' N d' (fl ' o0 t[) ~ O 1~ O ~ ~1 N CO ~ CO ~O U O O ~ 00 ~ I~ ti .- N o0 ~ 69 t0 O ~ r lA fA .-- !f O 69 EH fR O O U L ~ ~ ~ M ~ O O O N M U ~ ~ M ~ ~ ~ ~ ~ EA fA Efl EA M O fA fQ fA ~ M O O O O O O f~ f~ N `7 O O N 0 L(7 Cp ~ O M Ct c0 U ~ EA ti lfl ~ EA ~ r M ~ ~ ~{} EA N C O U ~ f~ M O M O M N ~ M O ~ M ~ O r f~ N M 00 O ~- M ~' f N U N r- CO t EA 00 0 r fA Efl fi} N w - ~ ~ (6 ~L M O M O O r- ~iY ~ ~ O O ~ I~ ti CO N . 00 .- ~ N N O O ~ M ~ ~ ~ N tD fB 69 fA Efl EA ~ _ O f0 3 ` O N ~ ~ ~ I~ O o0 O O U~ O ~ ~ ~ N M r , f n M ~ ~ d' Efl N 1~ F _ O t 69 fA b9 d} r ,..,, 6f} N O C ._ O ~ U N ~ N Q ~ >+ N U '~ C ~ .~ ,_ ~ a m U m U ~_ ~ N C U ~ c ~ N L 0 0 ~ ~ Y N • U • ~ ~i ~ ~ O N O N cc o U ~ cu ~ "'' J •"= ~ N ~ ~ ~ N U Q Q ~ L N C ~ N O L~ ~ O ~ L (n ~ ~ U O I-- ~ ~•