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3 Regulatory Framework and Public Concerns As public concerns over the condition of the nation's environment grew during the 1970s and 1980s, statutes were enacted to address them. This chapter discusses the major federal, California state, and international laws that address water quality and related issues, and the agencies responsible for implementing them. Many of the decisions made by these agencies in the context of the statutory requirements are based, in part, on information derived from the monitoring system in the Southern California Bight. Public concern over water quality has not abated, and in many ways has grown sharper in recent years. Hearings held in 1988 on the California ocean plan provided a forum for restating these concerns as they relate to monitoring and are therefore summarized in this chapter. REGUIATORY SECTOR State and federal agencies have regulatory authority over three types of environmental issues in the Southern California Bight: 1. water quality control, 2. public health and safety, and 3. natural resources protection and management. Marine Water Quality The two major federal laws that regulate marine water quality are the Federal Water Pollution Control Act Amendments of 1972 and 1987 42

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43 (the Clean Water Act, as amended, or CWA), and the Marine Protection, Research and Sanctuaries Act (MPRSA) of 1972. The CWA regulates all discharges into navigable waters of the United States, from fresh waters through the estuaries, the territorial sea (0 to 3 nautical miles hereafter called the 3-ml limit), the contiguous zone (3 to 12 nautical miles), and beyond (Figure 3-1~. It covers pipeline discharges to estuaries, the terri- torial sea, and federal waters beyond the 3-ml limit. It also covers runoff from land and dumping of wastes (primarily dredged material) from vessels into estuaries. The MPRSA regulates the transportation and dumping of wastes in marine waters from the mean low-water line of the open coast to the outer limit of federal jurisdiction. Thus, the CWA covers pipeline discharges from coastal sewage treatment plants, electric power plants, and commercial and industrial operations to fresh and marine waters, as well as discharges from oil platforms in state and federal waters. The MPRSA cov- ers any dumping of materials from barges or ships into the ocean, including incineration of hazardous wastes at sea. An important difference between the mro laws is that the CWA is a water pollution abatement law and as such is not required to consider effects on the air and land of abatement actions for water. MPRSA on the other hand requires evaluation and assessment of all potential water, air, and land impacts before an action (e.g., dump site designation) can be taken. Thus, pipeline discharge of sewage sludge is illegal under C WA. The primary purpose of the CWA is to restore and maintain the chemical, physical, and biological integrity of U.S. water resources (Office of Technology Assessment [OTA], 1987~. This was to be accomplished by a federal grant and loan program to help municipalities to build or upgrade sewage treatment plants and by pollution control programs with regulatory requirements for industrial and municipal discharges. The Environmental Protection Agengy (EPA) is the federal agency that administers the CWN In the state of California, the pollution control provisions of the CWA are administered by the California State Water Resources Control Board and the regional water quality control boards under authority of the Porter Cologne Act (Water Code Sections 13000 et sequel. Section 402 of the CWA authorizes the EPA to establish and adminis- ter the National Pollutant Discharge Elimination System (NPDES) permit program. All municipal and industrial facilities discharging directly into navigable waters are required to obtain a NPDES permit. Pollution con- trol is implemented primarily by "end of the pipe" (effluent) limitations on specific conventional chemicals that may be present in the discharge. These limitations are based primarily on considerations of current available technology (technology-based limits). Recently, there has been a growing emphasis on basing permit limitations on consideration of the quality and

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44 River (3 A' i' Sewage '< `~:c treatment .\ .,.,_ , ],Coastal Waters, Baseline to 3 , nautical miles (territorial sea) mar Platform Discharges _~ Estuary '$) :3! Dredged material disposal . ~ ~1 pipelines Industrial y:l , ', . pipelines , ~/~3\~ Runoff ~i I ndustrial , plant . At, ' (3 .~,, ,_ arc _~,.~-~: ' Dredged | material Open Ocean 3 to 12 nautical miles (contiguous zone) and beyond ''OF Platform Discharges At, ,53 __ Sewage sludge 9 ~ 35~ - Industrial waste dumping ,:3 Ha: _ Dredged material FIGURE 3.1 Junsdictional boundaries of environmental laws affecting marine disposal. SOURCE: Office of Technology Assessment, 1987. uses of the receiving waters (water quality-based limits). Dischargers are required to report periodically on compliance with technology-based limits. In addition, if water qualib-based limits are included in the permit and the discharge is to state waters, a monitoring program is required to ensure that water quality standards and requirements are met. EPA issues permits for discharges outside state waters (beyond the 3- mi limit) and reviews NPDES permits issued by the regional water quality control boards. EPA is also the primary permitting authority for special permits identified by the CWA, such as section 301(h), which authorizes waivers from secondary treatment of effluent discharged into marine waters if water quality objectives to protect the marine environment can be met.

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45 In the bight, the CWA is administered through the State Water Re- sources Control Board by four regional boards: Central Coast (Region 3), Los Angeles (Region 4), Santa Ana (Region 8), and San Diego (Region 9~. The regional boards have primary responsibility for: developing and adopting waste discharge requirements (limits on the discharge of wastes to state waters), administering monitoring programs (used to determine compliance with permit requirements), and developing and adopting water quality control plans (basin plans) within their respective regions. The state board determines state policy for water quality control and reviews the basin plans developed by the regional boards to ensure that they are consistent with state policy. The state board may also adopt statewide water quality control plans or policies, which supersede the regional basin plans if there is a conflict. Statewide plans and policies dealing with estuarine, coastal, and marine waters of California are: the California ocean plan (Water Quality Control Plan for Ocean Waters of California iState Water Resources Control Board, 19834), the California thermal plan (Water Quality Control Plan for Control of Temperature in the Coastal and Interstate Waters and Enclosed Bays and Estuaries of California [State Water Resources Control Board, 19753), and the enclosed bays and estuaries policy (Water Quality Control Policy for the Enclosed Bays and Estuaries of California iState Water Resources Control Board, 1974~. Statewide and regional water quality control plans designate: beneficial uses to be protected, water quality objectives (limits or levels of water quality constituents for beneficial use protection), and implementation of ~ program for achieving water quality objectives (waste discharge requirements). The designation of beneficial uses and water quality objectives consti- tute water quality standards for California. Waste discharge requirements are derived from the relevant basin or statewide plan. The California ocean plan sets the scope for most of the discharge- related marine monitoring programs in the bight. The plan has been reviewed three times (1978, 1983, and 1987) and amended twice (1978 and 1983~. Additional amendments were proposed in 1988 (State Water Resources Control Board, 1988~. These amendments, as well as those to the CWA in 1977, 1981, and 1987 resulted in increased monitoring requirements for dischargers.

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46 The regulatory process and the public are linked by the regional boards, which deal with regional and local regulatory issues. Board members are local residents and the staff deals directly with local governments, agencies, and dischargers. The boards hold hearings for discharge permits, and the staff (and, when appropriate, EPA-e.g., NPDES permits for discharges into federal waters) develop ocean monitoring programs, interpret monitoring results with respect to permit compliance, and inform the public. The MPRSA, which regulates transportation of materials to be dumped in the ocean or incinerated at sea, authorizes EPA to designate and manage ocean dumping and incineration sites. EPA also evaluates ocean dumping criteria for all permits and issues permits for ocean disposal of materials other than dredged material. The U.S. Army Corps of Engineers (COE), under Title I, Section 103, administers the permit program for disposal of dredged material at ocean sites designated by EPIC However, EPA does have the authority to review applications for dredged material disposal permits. Both agencies must determine that the proposed dumping will not unreasonably endanger human health or the marine environment ac- cording to the ocean dumping criteria, and that ocean disposal is the best environmental option. Section 404 of the CWA regulates discharge of dredged or fill material within the 3-ml limit and in estuaries and wetlands (Figure 3-1~. The COE regulates such discharges, using guidelines they developed jointly with EPA (Office of Technology Assessment, 1987~. Under Section 401 of the CWA, such discharges must be certified by the affected state as complying with applicable water quality criteria. In the event of a conflict between the state and COE, or outside of COE jurisdiction, the regional boards have independent authority under the California Water Code to regulate such discharges. Under Title I, Section 107, of the MPRSA, the U.S. Coast Guard is responsible for surveillance and enforcement to prevent unlawful dumping of prohibited material, dumping outside designated ocean dump sites, and illegal transportation of material for dumping. Title I expressly prohibits the disposal of high-level radioactive wastes and chemical and biological warfare agents. Certain other materials are allowed only under certain circumstances. Title II requires EPA and the National Oceanic and Atmospheric Administration (NOAA) to conduct research and monitoring to assess the environmental impacts of waste disposal. Title III of MPRSA gives NOAA the authority to establish marine sanctuaries. Inland waters and marine areas as far offshore as the edge of the continental shelf can be designated as marine sanctuaries if such designation is determined necessary to preserve or restore the area for conservation, recreational, ecological, or aesthetic purposes. The Channel

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47 Islands National Marine Sanctuary, located in the bight, is an example. Leo international conventions address ocean dumping. The first is the London Dumping Convention (LDC), which was negotiated in 1972 and became effective in 1975. It requires that all signatory nations adopt marine disposal criteria that, at a minimum, are equivalent to and contain the basic constraints of those in the LDC. The United States, Mexico, and 59 other countries have ratified the LDC. In 1974, the MPRSA was amended so that all U.S. marine disposal criteria would be consistent with and contain all the basic constraints set forth in the LDC. The second agreement, the International Convention for the Pre- vention of Pollution from Ships (1973 and protocols of 1978, known as MARPOL 73n8) regulates discharges from ships. Annex 1 (covering dis- charges of oil) and Annex 2 (covering discharges of bulk chemicals) have been ratified by the required number of nations and are in effect. Annex 3 (covering sewage discharges), Annex 4 (covering hazardous substances in packaged form), and Annex 5 (covering garbage) await approval. The U.S. Senate recently enacted the Marine Plastic Pollution Research and Control Act of 1987 (P.L. 100-200, Title II, Sections 2001 to 2305), which includes provisions of Annex 5 of MARPOL 73~78 and prohibits ships from dumping plastics anywhere in the ocean and from discharging garbage to the ocean within 12 mi of shore, including the bight. Ports will be required to provide garbage disposal facilities for ships, and ship captains will be required to keep a waste management log, which must be available to port officials. Public Health and Safety State and federal agencies with primary responsibility for public health and safety within the bight's waters and along its shores are the California State Department of Health Services (DHS), the county and municipal public health agencies, and the federal Food and Drug Administration (FDA). The California Health and Safety Code and the California Admin- istrative Code authorize the DHS to supervise sanitation, healthfulness, and safeW of public beaches and public water-contact sports areas. The main focus of DHS monitoring activities is marine recreational areas from the beach out to a depth of 30 ft or 1,000 ft from shore, whichever is farther (the surf zone), and coastal kelp beds. DHS has been relying on bacteriological standards developed in 1942 (total and fecal coliforms) to judge the safety of water bodies (California Department of Public Health, 1943~. When standards are exceeded, DHS or local health officials may post warning signs or declare beach closures. Permanent warning signs have been posted in the vicinity of major storm drain outlets into Santa Monica Bay and near the U.S-Mexican border. Upper Newport Bay has

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48 been closed to water-contact sports since 1974 (Santa Ana Regional Water Quality Control Board, 1985~. Under present laws and regulations, DHS can close fishing and shell- fishing areas because of bacterial contamination and the presence of par- alytic shellfish poisoning (PSP) organisms in marine animals. Since 1978, upper Newport Bay has been closed to shellfish gathering for human con- sumption because of bacterial contamination from the bay drainage area (Santa Ana Regional Water Quality Control Board, 1985~. A commercial shellfish growing operation in Agua Hedionda Lagoon in San Diego County is required by its state permit to cease harvesting for seven days after rain in excess of 0.25 inches due to bacterial contamination from the lagoon wate~- shed (California Department of Health Services, April 7, 1988~. The DHS has maintained that elevated fecal conform levels in coastal waters and in shellfish meats at a mariculture operation in the Santa Barbara Channel have resulted from the intermittent impact of undisinfected sewage effluent from both the Goleta and Santa Barbara wastewater treatment plants. In 1987, the Goleta plant initiated disinfection of its effluent prior to discharge (California Department of Health Services, 1988b, letter to Pacific Seafood Industries). There is no specific authorization under current law to close fishing and shellfishing areas due to chemical contamination. Until recently, there was no systematic sampling of edible tissues of fisheries products from the bight to evaluate potential effects on human health from chemical con- tamination. However, the DHS recently issued a health advisory warning against consumption of white croaker from the Santa Monica Bay, Palos Verdes Peninsula, and Los Angeles Harbor areas because of heavy DDT and PCB contamination. The DHS is also overseeing a year-long assessment of chemical con- tamination of recreational and commercial fish sampled from 25 areas in the bight. More recently, experimental quantitative risk assessment meth- ods have been used to evaluate suspected or potential human carcinogens in fishery products. Such methods may lead to estimates of health risks from levels of contamination well below current FDA action limits. Monitoring for conform or other enteric bacteria is also a part of all monitoring programs administered by the regional water quality control boards and EPA around municipal wastewater outfalls. This bacterial monitoring is intended to track the wastewater plume and evaluate possible hazards to the water contact recreation shorelines. Natural Resource Protection and Management Several state and federal resource agencies are involved in protecting and managing the natural resources of the Southern California Bight. The

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49 California Department of Fish and Game, the National Marine Fisheries Service (NMFS) of NOAA, and the Fish and Wildlife Service (FWS) of the U.S. Department of the Interior (DOI) are all involved in protecting and managing living marine resources. Their activities include fish stock assessments and habitat protection. The State Lands Commission is re- sponsible for leasing tidal and submerged lands out to the 3-ml limit for energy and mineral development, subject to the Public bust Doctrine. The California Department of Fish and Game and the Department of Health Services issue permits for commercial shellfish growing, subject to review by the State Islands Commission. The DOI's Minerals Management Service (MMS) is responsible under the Outer Continental Shelf Lands Act of 1953 (OCSLA) for leasing energy and mineral rights in federal waters extending from the 3-ml limit to the outer limit (200 mi) of the Exclusive Economic Zone (EEZ). Resource exploitation, management, and protection activities must comply with several federal regulations in addition to those dealing with water quality. The National Environmental Polipy Act of 1970 (NEPA) requires that an environmental impact statement (EIS) be prepared for all proposed legislation and all major federal actions that could significantly affect the quality of the environment. Thus, the MMS prepares an EIS before leasing offshore tracts for oil and gas exploration. Although EPA is not required to prepare an EIS for ocean disposal site designations, its policy is to do so voluntarily for dump site and incineration site designations. EPA also prepared an EIS in 1977 when it nronosed revisions to the ocean dumping regulations and criteria. - r--r The Endangered Species Act of 1973 requires all federal and state agencies to ensure that any action they authorize, fund, or carry out will not jeopardize the existence of an endangered or threatened species or result in damage or destruction of critical habitat for such species. The act authorizes the NMFS and FWS to render a biological opinion about the potential effect of a proposed activity on endangered species. As part of the EIS process, one of these agencies, usually upon consultation with the California Department of Fish and Game, must attest that the proposed action is compatible with the Endangered Species Act. The NMFS and FWS are empowered by the Marine Mammal Protec- tion Act of 1972 to enforce a moratorium on the taking or importation of marine mammals and marine mammal products except by special permit from the Secretary of Commerce. The National Historic Preservation Act protects historic and prehistoric archaeological resources. The Coastal Zone Management Act of 1972 (COMA) administered by NOAA provides grants to coastal states to develop coastal management plans. It also provides for state review of federal actions, including leasing of tracts for oil development and designation of ocean dump sites in federal

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50 waters that might directly affect the coastal zone. Although the State Water Resources Control Board has primary authority to regulate water quality, the California Coastal Commission is responsible for reviewing federal actions for consistency with the state's coastal management plan. In this role, the commission has had a major influence on proposed oil and gas development activities on California's outer continental shelf. Under the CZ}LA National Estuarine Reserve Research Program, the Secretary of Commerce may designate a state or estuary as a national reserve upon nomination for such designation by the state's governor. The Tijuana Estuary is the first estuary in the Southern California Bight to receive such status. The California Coastal Commission controls development within the coastal zone by issuing permits and approving local development plans in accordance with the California Coastal Act of 1976. The California Coastal Conservancy is authorized to make grants to local governments to acquire and restore critical habitats, including coastal wetlands. INTERAGENCY COOPERATION Complex environmental problems may not fall neatly within the areas of responsibility of individual agencies. They may involve the responsibili- ties of several agencies, or none, and may cross jurisdictional boundaries. In delegating responsibility for regulatory activities in the bight to different state and federal agencies, the U.S. Congress and the state legislature have not always been able to anticipate such problems. As a result, agencies must deal with policy conflicts, gaps, and overlaps. In addition, monitoring and research results generated by one agency can relate to the statutory responsibility of another. There are several examples in the bight of inter- agency cooperation that has successfully resolved such conflicts, and a few are mentioned below. The previous chapter described how the San Diego County Depart- ment of Public Health, the San Diego Regional Water Quality Control Board, and the U.S. State Department's International Boundary Commis- sion cooperated on the design of a monitoring program to assess sewage contamination from Tijuana. In addition, the EPAs Region IX office co- operates with the U.S. Army COE and with the Regional Water Quality Control Boards in establishing discharge and disposal limitations and mon- tonng programs. The California Cooperative Oceanic Fisheries Investigation (CalCOFI) program is a long-standing example of a joint monitoring and research program involving federal and state resource agencies and an academic institution. The State Water Resources Control Board and the California Department of Fish and Game have combined resources to establish a

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51 statewide Mussel Watch Program to monitor toxic contamination. This program complements NOAA's National Status and [lends Program. The NOAA Sea Grant programs (which receive matching funds from the state of California), the U.S. FWS, the Coastal Conservancy, and the Califor- nia Department o f Fish and Game have cooperated in coastal wetland restoration projects. Responding to mounting public concern over the condition of Santa Monica Bay, the Southern California Association of Governments (SCAG), funded the Santa Monica Bay Study. The study's goal was to compile all data relevant to the bay, perform an overall assessment of the state of its marine environment, and develop an implementation plan for specific actions to improve it. The study's steering committee is a consortium of representatives from local and state governments, environmental and academic groups, federal agencies, and local dischargers. Ten local entities and the SWRCB (using Clean Water Act monies) are funding the study. The San Diego Regional Water Quality Control Board has initiated a similar program to address environmental problems in San Diego Bay. PUBLIC CONCERNS FOR THE BIGHT There is intense public interest and awareness about environmental quality in Southern California. As a result, the public has been very vocal in advocating strong and effective environmental protection policies for the Southern California Bight. A sampling of public concerns and perceived policy needs for the bight ecosystem can be gained from the October 1986 triennnial review of the California ocean plan (State Water Resources Control Board, 1987) and from the presentations of interested parties to the case study panel. The following points were made by representatives of citizen organizations: . The California ocean plan (State Water Resources Control Board, 1987) needs clearer definitions of narrative terms such as "degrade." It is difficult to assess the information provided by monitoring in the context of such vague objectives. Not enough attention is being paid to nonpoint sources of contam- inants entering the bight, such as stormwater drains and aerial fallout. The plan should consider placing monitoring requirements on these sources. . There should be a shift from discharge standards and effluent lim- itations based on allowable concentrations of contaminants in receiving waters to standards and limitations based on mass emissions of contami- nants. This would better reflect the loading of the marine environment. A more complete assessment of the cumulative effects of marine contamination is necessary.

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52 The plan should require monitoring of sediments and biota to better assess cumulative levels of contaminants and their associated effects. There should be more independent review and oversight of the monitoring programs performed by dischargers. Self monitoring should be eliminated and monitoring put in the hands of state agencies. There should be better analysis of monitoring data submitted to public agencies and better communication of that information to the public. An oceanic institute associated with local universities should be established to conduct regular monitoring currently performed by discharg- ers, to coordinate monitoring by other agencies, and to perform related research. Standardized bioassay protocols and bioaccumulation tests should be required to better assess the toxicity of effluents to marine life and the hazards of eating fishery products from coastal areas. The public appears to expect monitoring activities to provide informa- tion that answers four basic questions: 1. Is it safe to swim in the ocean? 2. Is it safe to eat the local seafood? 3. Are fisheries and other living resources being adequately protected? 4. Is the health of the ecosystem being safeguarded? These are the public expectations that the panel perceives drive the actual monitoring programs. However, monitoring is carried out within a broader societal context, which includes such issues as cost, the effects of competing uses on land, water, and air quality, and tradeoffs between short and long-term costs and benefits. The challenge is valid and useful to management decision making in that it provides information addressing public concerns. SUMMARY The regulatory framework in the Southern California Bight is indeed complex and far reaching. Successful implementation of monitoring pro- grams often requires a high degree of cooperation among state and federal officials. The efficient design of a monitoring system that can meet the vari- ous objectives of regulatory interests and not impose unreasonable burdens on the regulated community is a formidable task. In succeeding chapters, the details of this system are discussed and its success at meeting these criteria assessed. In part, the success of the regulatory program and the role that monitoring plays depend on public confidence. The public continues to

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53 question the efficacy of monitoring and the status of the marine environ- ment. Subsequent chapters will offer suggestions about the technical design of monitoring programs that may address those questions.