Meeting Date: June 24, 2015

Transcription

1 Town of Moraga Ordinances, Resolutions, Requests for Action Agenda Item XI. A Meeting Date: June 24, 2015 TOWN OF MORAGA STAFF REPORT_ To: Honorable Mayor and Councilmembers From: Edric Kwan, Public Works Director / Town Engineer Subject: Consider a Letter of Opposition to the Tentative Order Re-issuing the Municipal Regional Stormwater Permit (MRP 2.0) Request Consider a letter of opposition to the Tentative Order Re-issuing the Municipal Regional Stormwater Permit (MRP 2.0). Background The National Pollution Discharge Elimination System (NPDES) permit regulates all discharge into the storm drain system (affecting the San Francisco Bay). The Town is a co-permittee with 76 other agencies. The current Stormwater Permit, also known as Municipal Regional Permit (MRP) became effective in December 2009 and was scheduled to expire in November 2014 but has been extended to allow for continuing dialogue with the Regional Water Quality Control Board (Water Board) regarding the next Stormwater Permit, referred to as "MRP 2.0." To comply with these regulations, Contra Costa County, nineteen of its incorporated cities including the Town, and the Contra Costa Flood Control & Water Conservation District, have joined together to form the Contra Costa Clean Water Program (CCCWP). On May 11, 2015, the Water Board issued the draft Tentative Order (i.e., the draft of the MRP 2.0) that included several new requirements of concern to the Town, particularly in the sections titled "New Development and Redevelopment," "Trash Load Reduction," "PCB Controls, and "Mercury Controls." Generally, these new requirements fall into one of three categories: 1) a new requirement representing significant new workload; 2) a new requirement that may be administratively or legally infeasible to implement; or 3) an unsatisfactory approach for determining compliance. 1

2 Discussion The draft MRP 2.0 will require permittees new significant mandates such as: Assess each planned infrastructure project and add Green Infrastructure features where feasible; Plan and implement a program to manage PCB-containing materials (such as is found in construction adhesive and caulking) in industrial and commercial structures 1 constructed or remodeled between 1950 and 1980 at the time those structures are demolished; Demonstrate trash load reductions of 70% from 2009 levels up from the current 40% requirement by installing full trash capture devices or implementing equivalent trash control measures and evaluating their effectiveness through visual surveys 2 ; and Require private property owners in high-trash and moderate-trash areas to install full trash capture devices or implement equivalent measures 3. The draft MRP 2.0 in its entirety can be found at: nicipal/mrp_page4.shtml Throughout this process, the CCCWP has also advocated for relief on certain tasks that are considered to be lower priority and will yield little in the way of demonstrable results. Comprehensive information and rationale has been presented to support these requests. This approach (essentially value engineering the current permit) acknowledges that the new or additional funding sources required to implement additional new requirements have yet to be identified. Each agency, referred to as a Permittee, would be required under the revised permit (MRP 2.0) to meet a higher level of standard without any assurances of adequate funding to pay for capital, operating and maintenance costs. Despite the CCCWP putting forth sound rationale for the changes requested as identified in the draft letter of opposition s attached table (Attachment A), Water Board staff has incorporated too few of these ideas into the draft Tentative Order. While the CCCWP has stressed the fact that the permittees regard themselves as partners with the Water Board in carrying out the requirements contained in the current and draft MRP 2.0, the Water Board s perspective is one of a regulatory agency that does not have to implement these requirements at a local level. 1 Wooden framed structures exempt. 2 The FY13/14 Annual Report states that the Town achieved 41% trash load reduction compared the 40% goal; however, due to conflicting evaluation methods the reported value was reduced to 11%. 3 Currently, the Town has 3 high trash areas in the Campolindo High School, Rheem Shopping Center, and Moraga Center Shopping Center areas according to the Water Boards evaluation criteria. Medium trash areas are located in the other school areas. 2

3 At this point, the Town of Moraga and other permittees are being asked by the CCCWP to become engaged in this process by submitting a letter of opposition to the Water Board. Elected officials at the July 9, 2015 Mayors Conference in Clayton will be briefed on the MRP 2.0 impacts; the deadline for written comments to be submitted to the Water Board is July 10, The public hearing before the Water Board to consider approval of the Tentative Order and adoption of the MRP 2.0 is October 14, Fiscal Impact The major new mandates of MRP 2.0 will require a significant, sustained effort to implement, absent any new or additional funding source. Neither the Town nor the CCCWP have yet estimated financial impacts. Alternatives 1. Send letter of opposition (Attachment A) to the Water Board; or 2. Consider and revise letter of opposition to the Water Board; or 3. Decline to send attached letter of opposition; or 4. Direct staff to send letter of support. Recommendation Send letter of opposition (Attachment A) to the Tentative Order re-issuing the Municipal Regional Stormwater Permit (MRP 2.0). Attachments: A. Draft Letter of Opposition 3

4 ATTACHMENT A Draft Letter of Opposition

5 MAYOR S OFFICE June 24, 2015 Bruce Wolfe, Executive Officer California Regional Water Quality Control Board San Francisco Bay Region 1515 Clay Street Oakland, CA Via to: mrp.reissuance@waterboards.ca.gov Subject: Opposition to the Tentative Order Reissuing the Municipal Regional Stormwater Permit (MRP 2.0) Dear Mr. Wolfe and Members of the Board: Thank you for the opportunity to comment on the Tentative Order Reissuing the Municipal Regional Stormwater Permit (MRP 2.0.) The Town of Moraga continues to support the Water Board s objectives of reducing stormwater pollution and protecting our local creeks, the delta and San Francisco Bay. For the past two years, representatives from Contra Costa municipalities, along with a consortium of Bay Area agencies and the Bay Area Stormwater Management Agencies Association (BASMAA), have been engaged in an ongoing dialogue with your staff regarding: experience gained and lessons learned from the current MRP; how to apply that experience toward maximizing the effectiveness of MRP 2.0, and ensuring that the requirements contained in MRP 2.0 provide for a clear path to compliance. This process generated many new ideas and approaches that build upon experience gained and identify how to expand upon and enhance our stormwater pollution prevention efforts. It also advocated consolidating or eliminating less beneficial tasks in the permit, extending implementation dates, reducing reporting, and adjusting ongoing tasks to reduce effort while maintaining effectiveness in protecting water quality. This approach acknowledges the reality that new or additional funding sources required to implement the new and expanded requirements contained in MRP 2.0 have yet to be identified; and, advocates allocating limited resources in ways that would focus upon, and maximize, effectiveness of the major new and expanded mandates. Despite the extensive effort, few of these ideas were carried forward into MRP 2.0. Therefore, the Town of Moraga opposes MRP 2.0 as it is currently drafted, asks that your Board consider the following comments, and direct Water Board staff to work with permittees to revise the Tentative Order. 329 Rheem Boulevard Moraga, CA (925) townclerk@moraga.ca.us

6 Major New and Expanded Mandates Should Be Offset by Eliminating Less Beneficial Tasks The draft Tentative Order includes a new mandate to develop Green Infrastructure Plans. This coordinated, multi-year effort represents a significant paradigm shift toward developing comprehensive long-range plans that will significantly reduce the amounts of urban runoff pollutants, including the pollutants of concern, flowing into receiving waters. It will also require significant investment on the part of all permittees. In addition, the draft Tentative Order would require the Town of Moraga to do the following: Assess each planned infrastructure project and add Green Infrastructure features where feasible; Plan and implement a program to manage PCB-containing materials in commercial or industrial structures constructed or remodeled between 1950 and 1980 at the time those structures are demolished; Demonstrate trash load reductions of 70% from 2009 levels up from the current 40% requirement by installing full trash capture devices or implementing equivalent trash control measures and evaluating their effectiveness through visual surveys; and Require private property owners in high-trash and moderate-trash areas to install full trash capture devices or implement equivalent measures. These major new mandates will require a significant, sustained effort to implement, absent any new or additional funding source. The attached table summarizes adjustments that have been presented to Water Board staff that would improve program efficiencies or eliminate certain less beneficial tasks. Comprehensive information and rationale has been presented to support these requests. Inclusion of these changes in the MRP 2.0 will allow the Town to focus and apply the Town s limited resources to the major new and expanded mandates as listed above, in order to achieve the greatest positive impact. We request that your staff review the attached table and work with Edric Kwan, Public Works Director, to make most or all of the recommended adjustments to less beneficial tasks. The Town and other Permittees Must Have a Clear Path to Compliance Considerable time and effort has been spent discussing how to reduce levels of pollutants of concern flowing into our waterways, particularly PCBs. Failure to achieve the reductions specified in MRP 2.0 could result in our Town being held in noncompliance. However, as drafted, MRP 2.0 provides no clear path for permittees to avoid noncompliance. Some examples include: The draft Tentative Order mandates achieving specified reductions in the total quantity of PCBs discharged from municipal storm drains. A major means of achieving these 329 Rheem Boulevard Moraga, CA (925) townclerk@moraga.ca.us

7 reductions is through removal of PCBs during building demolitions. However this fails to acknowledge that we have no control over timing of when properties redevelop. We ask that development of a program to control PCBs during building demolitions, rather than applying controls to a specified number of buildings demolished, should represent compliance with this requirement. The Tentative Order includes (in the Fact Sheet) an incomplete method to achieve stipulated reduction credits for each building demolished with PCB controls, for each redeveloped site with new bioretention facilities, and for finding and abating concentrated sources of PCBs. Looking for hidden PCB sources is a good idea, but the Town doesn t have the expertise to find them nor would be able to guarantee that we would be able to abate them. We ask that development of a program to systematically identify and review potential sources, and refer them to appropriate agencies for abatement, be the basis for credit toward compliance. The draft Tentative Order allows only four (4) months after Permit adoption for permittees to submit a more complete measurement and estimation methodology and rationale for stipulating PCB reduction credits. We ask that BASMAA s PCBs programs accounting methodology be finalized, incorporated into the permit, and then used to calculate PCBs load reductions during permittee annual reporting. Water Board staff has stated the threat of noncompliance is intended to strongly encourage permittees to find and abate hidden PCBs, and that Water Board staff would use enforcement discretion if and when permittees are unable to meet the mandated PCB load reductions. From a municipal government perspective, new financial and staffing commitments must be based on agreed upon goals and objectives, and have well-defined metrics for measuring progress. We ask that the load reduction performance criteria not be the point of compliance, and that Water Board staff work with permittee representatives to revise the Draft Tentative Order so that it provides a clear and feasible pathway for permittees to attain compliance. Most factors that are key to meeting the load reduction performance criteria are uncertain and many are not within permittee control (e.g., extent of source properties that will be found, building demolition rates, and redevelopment rates), making achievement of compliance uncertain. The Town of Moraga appreciates the efforts by your staff to develop permit requirements that are implementable and effective in improving surface water quality a goal which we share. We look forward to resolution of the remaining issues and to implementing MRP 2.0. Sincerely, Roger N. Wykle Mayor, Town of Moraga Attachment 329 Rheem Boulevard Moraga, CA (925) townclerk@moraga.ca.us

8 Requested Adjustments to Improve Efficiency in the Municipal Regional Permit, Including Elimination of Less Beneficial Tasks Provision Task or Requirement Requested Adjustments C.2.f. Corporation Yard inspection requirements. Eliminate this requirement, as it duplicates the requirements for inspections already included in the Stormwater Pollution Prevention Plans (SWPPPs) for these same facilities. C.3.b.i. C.3.b.ii.(4) C.3.b.ii.(1)(c) C.3.e.ii. C.3.e.v.(1) C.3.e.v.(2) C.3.g.vii. C.3.g.iv. Eliminates grandfathering of Regulated Projects with vested tentative maps approved prior to advent of C.3 requirements Certain Roads Projects are Regulated Projects under Provision C.3 Requires projects where 50% or more of existing impervious area is redeveloped to provide treatment for entire area. Special Projects allowance to use non-lid treatment on smart growth development projects that meet specified location and gross density criteria. Requires Permittees to track Special Projects that have been identified (application submitted) but not approved. Requires Permittees to conduct and document an analysis of the feasibility of LID treatment for Special Projects. Requires Contra Costa municipalities (through CCCWP) to submit a technical report describing how Contra Costa will implement current Permit hydromodification management requirements. Allows Permittees to propose a different method for sizing hydromodification management facilities that is not biased against Low Impact Development, but requires a Permit amendment before using the method. Allow municipalities flexibility to require these applicants to implement stormwater treatment requirements only to the extent not in conflict with state law and existing development agreements Delete this requirement as the intent is superseded by the Green Infrastructure requirements in Provision C.3.j. Delete this requirement as the intent is superseded by the Green Infrastructure requirements in Provision C.3.j. To avoid a disincentive for including pedestrian amenities, allow public plazas to be omitted from calculation of project gross density. Delete this requirement, as the number of projects, and amount of impervious area, has proven to be small. Delete this requirement, as it creates considerable additional effort for applicants and Permittees without any expected water-quality benefit. Delete requirement to submit a technical report. CCCWP submitted a 2013 report on the results of a multi-year monitoring study that concluded current policies and criteria meet these requirements. Delete requirement for a Permit amendment before the method is used. Note: the Fact Sheet accompanying the Tentative Order states that Water Board Executive Officer approval would be required, not a Permit amendment. C.3.h.ii.(6)(b) Requires Permittees to inspect 20% of Regulated Delete the annual requirement to allow flexibility in scheduling Request for Changes to the May 11, 2015 Tentative Order 1 of 3 6/11/2015

9 Provision Task or Requirement Requested Adjustments and (c) C.3.j.i.(1) C.4, C.5, C.6 C.5.e.iii. C.5.e.iii. C.7.a. C.7.b. C.9.c. C.10.a.i.a. C.10.a.ii.b. C.10.b.1.a. Projects annually, as well as every project at least once every 5 years. Requires each Permittee to prepare and implement a Green Infrastructure Plan (framework for Plan due in 12 months; Plan due in 2019) For inspections of businesses and construction sites, and for response to illicit discharges, requires that corrective actions of actual or potential nonstormwater discharges be implemented before the next rain event, but no longer than 10 business days after potential or actual non-stormwater discharges are discovered. Requires Permittees to report a list of mobile cleaners operating in their jurisdiction. Requires Permittees to report a list and summary of specific outreach events and education conducted to the different types of mobile businesses Permittees are required to mark and maintain no dumping markings on storm drain inlets. Requires Permittees to participate in or contribute to advertising campaigns on specified subjects and assess results. Requires Permittees to observe pesticide applications by their contractors. Requires Permittees to achieve a 70% load reduction by July 1, 2017 Requires Permittees to ensure private properties plumbed directly to municipal storm drains are equipped with full trash capture devices or to verify low trash generation rate. Requires Permittees to investigate and map these properties. Specifies maintenance frequencies for full trash capture devices based on trash generation rates. inspections. Extend the time for submittal of the required framework to a minimum of 20 months. Delete references that specify types of corrective actions and timeframes for implementation, as these create a disincentive for identifying minor problems and create unproductive administrative work. Delete, as this information is unavailable. Delete and clarify that requirements to inspect mobile businesses and abate discharges is covered by existing requirements elsewhere in Provisions C.4 and C.5. Move this task to Provision C.2. Change advertising to outreach to make explicit that a variety of methods, including social media, may be used. Delete references to specific subjects. Allow more flexibility. Delete requirement. Extend this compliance date to Delete the mapping requirement and integrate inspections and enforcement into Provision C.4 (Commercial and Industrial Inspections). Set minimum frequency of 1x/year for all devices, to be adjusted based on maintenance experience. Required maintenance frequency Request for Changes to the May 11, 2015 Tentative Order 2 of 3 6/11/2015

10 Provision Task or Requirement Requested Adjustments C.10.b.1.c. C.10.b.iv. C.10.e.i. C.10.e. C.10.a.iii. C.10.b.iv. C.10.e.ii. C.10.f.ii. Requires Permittees to certify that full trash capture systems are maintained to meet standard. Allows a credit of up to 5% toward trash reduction requirement for source control actions such as product bans. Creates a formula for crediting trash collected during additional creek and shoreline cleanups toward trash reduction requirement at a 1:10 ratio, with a 5% maximum credit. Credits on-land cleanups and litter reduction only if visual assessments show a categorical change (e.g., from very high to high trash) Requires bioretention facilities to be equipped with a screen to qualify as full-trash-capture facilities. Requires observations of creeks and shorelines to determine whether trash control actions have prevented trash from discharging to receiving waters. Provides 1:10 ratio up to 10% maximum credit for actions to reduce direct discharge of trash (e.g. dumping, encampments). Produce an updated trash generation map each year. is determined mostly by amount of leaf litter and type of device. State that systems are maintained, and maintenance program is designed to meet standard. Increase maximum to 20% to fully credit existing product bans and to create incentive for future source control actions. Make the ratio 1:3 and increase maximum credit to 10%. Allow interim credit for demonstrated actions intended to achieve categorical change. Specify that these facilities qualify as full trash capture. Screens could cause flooding. Restate purpose of observations, as it is not possible to determine that trash originated from storm drains. Increase ratio to 1:3, with no maximum, as in some locations this is the predominant source of trash. Tie updated maps to compliance dates (for 70% and 100%). Request for Changes to the May 11, 2015 Tentative Order 3 of 3 6/11/2015

11 Frank Kennedy, Town Consultant Town of Moraga, Town Council June 24, 2015

12 Negotiations Background, Status, Results Major New Programs Requests for Changes Recommended Actions

13 Participants Water Board Assistant Executive Officer and staff 76 Municipal Permittees represented by: Bay Area Stormwater Agencies Association MRP 2.0 Steering Committee (began June 2013) Preliminary Process Two years of discussions Administrative Draft issued February 17, 2015 BASMAA provided redline/strikeout

14 Success on several key issues Major new programs and expanded programs A few critical changes are needed A large number of medium-priority fixes are needed Dates, percentages, and reporting requirements Reduce administrative burden and focus our efforts

15 May 11 - Tentative Order June 4 - MRP 2.0 Steering Committee June 10 Water Board Received Testimony July 8 Additional Testimony (Trash only) July 9 Presentation to Mayor s Conference July 10 Comments Due October 14 Adoption Hearing December 1 Permit becomes effective

16 PCBs and Mercury (Pollutants of Concern) MRP 1.0 Pilot implementation phase for PCBs MRP Focused Implementation Major Elements for PCBs Survey/referrals of high priority industrial sites Removal of PCBs from buildings prior to demolition Green Infrastructure Redevelopment via current Provision C.3 requirements Incorporation of runoff treatment into transportation and drainage capital improvements (as feasible)

17 Green Infrastructure MRP 2.0 permit term planning only Preparation of a Green Infrastructure Plan Coordinated with other planning documents Projections and where and when public and private impervious area will be retrofitted Approved framework due December 2016 Plan due in September 2019 Assess capital projects for G.I. potential in interim Implement where practicable Track projects using GIS

18 Trash Reduction Reduction schedule remains the same as MRP % reduction (from 2009) by July % reduction by July % (no impact) by July 2022 Demonstrate by managing trash in mapped areas Show areas have achieved low trash status Options: capture devices or visual assessments Offset/mitigation Up to 5% for source control (e.g. product bans) Up to 5% for additional creek cleanups Up to 10% for control of dumping and encampments Require trash management on private property

19 Critical Issue: Demonstrating PCB reductions Anticipated PCB reductions are guesstimates Number of qualifying buildings demolished Old industrial and old urban acres redeveloped Feasible/funded transportation and drainage projects Key factors are uncertain and not within our control Permit requires municipalities to demonstrate reductions are achieved No sure path to compliance Request for Change Stipulate load-reduction credits for putting a program in place

20 Other Issues: (see table) Extend the time to prepare a Green Infrastructure Plan Grandfathering of development projects approved prior to 2005 Tentative Order requires these projects to incorporate bioretention Potential conflicts with subdivision maps and development agreements Need some flexibility to work out conflicts Avoid disincentives to including public plazas

21 Other issues (see table) Trash management on private properties Delete requirement to map where these properties discharge directly to storm drains Merge the trash-management program with existing commercial/industrial inspection program Increase trash offset percentages and maximums creek and shoreline cleanups product bans and other source controls control of dumping/encampments

22 Comment letters due by July 10 Model letter provided Adoption hearing October 14