HomeMy WebLinkAboutStaff Report 5227
City of Palo Alto (ID # 5227)
City Council Staff Report
Report Type: Inter-Governmental Legislative Affairs Meeting Date: 11/3/2014
City of Palo Alto Page 1
Summary Title: City of Palo Alto Letter to the EPA on Waters of the US
Title: Review and Approval of a Letter from the City of Palo Alto to the
Environmental Protection Agency (EPA) on the Proposed Rule Change to
Waters Protected Under the Clean Water Act
From: City Manager
Lead Department: City Manager
Recommendation
Staff recommends that Council review and approve the attached draft letter from the
City of Palo Alto to the Environmental Protection Agency on a proposed rule change
defining the scope of waters protected under the Clean Water Act.
Background and Summary
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers
(Corps) have published for public comment a proposed rule change defining the scope
of waters protected under the Clean Water Act (CWA). The stated purpose of the rule
rule change is intended to increase CWA program transparency, predictability, and
consistency and result in more effective and efficient CWA permit evaluations with
increased certainty and less litigation, however, the City of Palo Alto, our federal
legislative advocate Van Scoyoc Associates, the US Conference of Mayors, the National
Association of Counties, and many other municipalities and jurisdictions are concerned
that this proposed rule change will have the opposite effect.
Outlined below are some of the major concerns City of Palo Alto staff and our federal
legislative advocate have as referenced in the attached draft comment letter
(Attachment A):
Prior to the release of the proposed rule, the EPA failed to conduct adequate
federal consultations with state and local governments. In recognition of the fact
that state and local governments are strategic partners and co-regulators in
enforcing the Clean Water Act, the EPA should restart the proposed rule process
by first consulting with its municipal partners.
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The proposed rule expands the EPA’s statutory and regulatory limits. By
proposing to define certain water features as broadly as possible, the EPA is
ensuring that their jurisdiction could be asserted almost anywhere in the U.S. In
Palo Alto, this could include features of, or the entire, storm water drainage
system, virtually any water within the floodplain of the Bay and San Francisquito
Creek, and roadside ditches.
The EPA undertook the rulemaking process to clarify recent U.S. Supreme Court
decisions regarding waters and adjacent wetlands subject to the Clean Water
Act. While attempts to clarify the agencies’ regulatory authority are welcomed,
the rule is far more comprehensive in scope than the Section 404 program of the
Clean Water Act, which was the subject of the Supreme Court cases, and creates
new definitions and terms that broaden and deepen the regulatory requirements
for all aspects of the CWA.
Tributaries are defined so broadly in the rule as to regulate every ditch and
channel. The rule exempts only a narrow class of ditches that are excavated only
in uplands, drain only uplands, and have less than perennial flow. In Palo Alto, as
in most jurisdictions, it will be difficult to satisfy the burden of proof that a ditch
meets these narrow requirements, especially given the topography and proximity
to the Bay.
The proposed rule attempts to define new categories of jurisdictional waters
including tributaries and adjacent waters. Due to the extraordinarily broad
definitions of these water features, we believe storm water and other water
infrastructure features such as ditches, canals, and culverts could be deemed
“waters of the U.S.” and, thus, see a dramatically different regulatory structure.
Stormwater is already regulated under the 402(p) program of the CWA, requiring
an NPDES permit. If determined to be waters of the U.S., storm water features
would have to meet water quality standards for fishable and swimmable water,
be subject to increased monitoring, and all discharges into and from the system
would have to be controlled to meet those standards.
Although wastewater treatment systems would be exempt from being designated
as a water of the U.S., that exemption would not necess arily apply to water
reclamation and reuse facilities, which are often located in floodplains and are
designed to achieve benefits not required by the Clean Water Act, as is specified
in the rule. This poses new and costly requirements on the regional water reuse
facility being planning and constructed for south San Francisco Bay.
The agencies’ proposed “other waters” category is designed to capture any wet
feature that cannot be found jurisdictional under the “tributary” or “adjacent
water” categories. Under the proposed rule, the agencies will assert jurisdiction
over “other waters, including wetlands,” that “alone, or in combination with other
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similarly situated waters, including wetlands, located in the same region, have a
significant nexus” to a traditional navigable water, interstate water, or territorial
sea. Additionally, buried deep within the proposed rule’s definition of “other
waters” lies a proposal that would allow the EPA and Corps to assert jurisdiction,
without conducting site-specific analysis, over entire “Ecoregions,” many of which
make up large swaths of the state of California, including the City of Palo Alto.
To be clear, staff is not recommending that the City oppose improvements made by the
EPA to the Clean Water Act that enhance the natural environment. Instead, staff’s
recommendation is that the EPA start over with the rule change process and more
directly engage impacted stakeholders. By doing so regulation that provides more
clarity, not less, can be achieved. Staff feels that legal clarity concerning water
regulation is especially important in light of the issues that have arisen as part of the
San Francisquito Creek improvement project.
The deadline for the submission of public comments is November 14, 2014.
Attachments:
A - Draft Comment Letter_11-3-2014 (DOCX)
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DRAFT
Water Docket
Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Docket ID No. EPA-HQ-OW-2011-0880
Subject: Definition of “Waters of the United States” Under the Clean Water Act
The City of Palo Alto, California, appreciates this opportunity to comment on the rule proposed
by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to
define “waters of the United States.” After careful review of the proposed rule and th orough
consideration of its potential impacts on our City, we urge the federal agencies to withdraw this
rule and engage state and local governments and stakeholders in a rulemaking process that can
feasibly advance the goals of the Clean Water Act.
Palo Alto is a city of 62,000 residents in the heart of Silicon Valley . Our city borders the
southern end of the San Francisco Bay and is traversed by San Francisquito Creek. We are
unique in that we operate a full suite of utility services including electricity, water supply, storm
water, and wastewater. Because Palo Alto is an urban community within one of the most
densely populated areas of the United States in an arid western state, one would suspect that a
rule to define waters of the U.S. would have minimal impact on our city and region. However,
the proposed rule could significantly impact our city budget, dramatically increase utility and
insurance fees for our businesses and residents, significantly alter land use decisions, and
further complicate our long-delayed flood control project.
The proposed rule is more than a recitation of water features subject to regulation under the
Clean Water Act. Rather, the rule redefines waters of the U.S. in new categories of water
bodies that are already regulated under the Act but as a point source, not as a water of the U.S.
Such definition triggers a panoply of regulation that will dramatically increase the cost and
regulatory burden for all levels of government and permitted activities. Thes e regulatory
requirements for each water body will include beneficial use designation (assumed as fishable
and swimmable), attainment of water quality standards to meet those designated uses, permits
for the discharge of any pollutants, development of Tota l Maximum Daily Loads, water quality
monitoring, listing each water that fails to attain standards, inventory of all point source
discharges, inventory of all non-point sources contributing to a failed water quality standard,
and EPA consideration of any petition to list an impaired water. With the proposed rule’s
broad definitions of “tributary,” “floodplain,” “riparian area,” and “other waters” within an
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ecoregion that the EPA proposes to categorically consider as jurisdictional water, virtually every
water body in Palo Alto, not expressly exempted, could be designated waters of the U.S.
Specifically, we are concerned with the rule’s impact on storm water, flood protection and
floodplain management, water reuse, water supply, and the potential for litigation.
Storm Water
Palo Alto owns and operates its municipal separate storm sewer system (MS4) and is a co -
permittee of the San Francisco Bay Municipal Regional Stormwater NPDES Permit. We strongly
recommend that because MS4s are already permitted under the Clean Water Act and are
regulated as point sources, they and their component features should be exempt from
definition as waters of the U.S. The existing Section 402(p) permit program mandates the
management and discharge of storm water in our community. The proposed definition of
tributaries creates the prospect of MS4 features being defined as waters of the U.S., resulting in
uncertainty at best and ultimately complex and costly new regulatory requirements for storm
water.
The rule proposes that all tributaries are waters of the U.S. and defines a tributary as a water
characterized with a bed and banks and ordinary high water mark, which directly or indirectly
contributes flow to other waters of the U.S. Likewise, wetlands, lakes, and ponds are a
tributary if they contribute flow to other waters. The rule goes further to clarify that a tributary
does not lose its status as water of the U.S. if, for any length, there are natural b reaks (such as
wetlands, debris piles, boulder fields, or streams that flow underground) or man -made breaks
(such as bridges, culverts, pipes, or dams). Therefore, by tracing this definition upstream from
a storm water discharge point, any MS4 feature that collects rain water or runoff could be
considered as water of the U.S., including surface ditches or channels that are part of our storm
water system because these features have beds, banks, and ordinary high water marks that
conduct flow to a water of the U.S. Even our upstream detention basins would be jurisdictional
because they hold water that drains through ditches and pipes to a water of the U.S. If MS4
features escape the “tributary” definition, they could nevertheless be captured as water of the
U.S. if they lie in the floodplain, which covers a significant portion of Palo Alto.
Palo Alto is committed to green infrastructure, yet green infrastructure itself can be defined as
water of the U.S. Constructed wetlands, swales, and detention basins invite the additional
regulation required for waters of the U.S., and cities will be dissuaded from building such
features if they are subject to additional, costly regulation.
Flood Protection and Floodplain Management
Palo Alto lies within a 50-square-mile floodplain than reaches from the Santa Cruz Mountains to
San Francisco Bay. For the past 16 years Palo Alto and neighboring communities, impacted by a
major flood in 1998, have tried to focus the resources and priorities of the federal gove rnment
on restoring an adequate level of flood protection. Construction is now delayed because water
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quality permits are being used by regulatory agencies as leverage for mitigation demands. The
proposed rule would further complicate this matter and create untenable circumstances for
further improvements in flood protection and use of the floodplain and riparian areas.
The proposed rule would categorically include all “waters” within a floodplain or riparian area
as waters of the U.S. The rule does not enumerate criteria for defining nor does it identify
boundaries for these areas, yet asserts jurisdiction o ver all “waters,” which are also undefined,
because these waters are neighboring or adjacent to other jurisdictional waters . The rule
assures that the EPA will use its best professional judgment to determine the boundary for
these areas. This lack of specificity requires that every activity, including public improvements
in flood protection, infrastructure, and facility maintenance, engage federal and state agencies
in any land use decision within an area that is undefined. While this has historically been a
large enough challenge in permitting Section 404 dredge and fill activities, the experience is
now extended to every other aspect of the Clean Wa ter Act, as required in this rule. As waters
of the U.S., any activity would have to ensure the attainment of water quality standards for the
designated use of the identified water, and permit applicants would be subject to variable and
often arbitrary compensatory mitigation requirements imposed by the permitting agency.
We ask that a final rule include science-based criteria and greater clarity of adjacent and
neighboring “waters” and a definition of floodplain and riparian areas that are not entirely
arbitrary. The Federal Emergency Management Agency (FEMA) expends over $100 million
annually identifying floodplains, and recognizes the authority of local government to adopt the
appropriate ordinances to manage land uses within the designat ed floodplain. This proposed
rule grants full discretion to EPA to exercise best professional judgment to identify a floodplain
and imposes the full force of the Clean Water Act on any land use decision that could affect
undefined “water” within that floodplain or riparian area.
Water Reuse
Palo Alto is an active participant in the Regional Water Quality Control Plant Water Reuse
Program. Since 1980 this program has reused over 10 billion gallons of water for irrigation and
cooling, reducing the need to import potable water and reducing discharges of wastewater into
San Francisco Bay. Water reuse in California is an essential requirement to meet demand,
particularly at a time of recurring droughts. Investing in the necessary infrastructure and
facilities to increase water reuse is expensive, and while government must ensure public safety
and environmental compliance, it should not discourage the investment. Unfortunately, the
proposed rule introduces impediments to water reuse and does not protect investments made
in water reuse, even though federal agencies encourage such activity.
Recycled water is treated and distributed in ancillary infrastructure to a wastewater treatment
system and can include channels to convey wastewater, settling or retention b asins, and a
separate pipe system to deliver the recycled water. Some of these facilities could fall under the
definition of “tributary” of the proposed rule, could be located within a floodplain or riparian
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area, and would not necessarily be covered by the wastewater treatment exemption in the
rule, which stipulates the exemption only for “waste treatment systems, including treatment
ponds or lagoons, designed to meet the requirements of the Clean Water Act.” While water
recycling provides further treatment of wastewater, the purpose for its treatment is not
“designed to meet the requirements of the Clean Water Act.” Further, the rule’s exemption for
settling basins does not afford sufficient protection for water reuse facilities because it does not
cover detention basins, reservoirs, or associated infrastructure such as channels, ditches, or
other conveyances.
At a minimum, we ask that the final rule include a clear exemption for all water reuse and water
reclamation facilities.
Water Supply
The City of Palo Alto purchases its water supply from the San Francisco Regional Water Supply
System, a system of reservoirs and aqueducts that delivers water from the Sierra Mountains to
San Francisco and surrounding communities. The quality of the water from the SF Regional
Water Supply System is such that it requires minimal to no pre-treatment. The system of
reservoirs and many of the associated rivers and streams are already considered “Waters of the
United States” under the Clean Water Act. We are unaware of any consultation that has taken
place with state and regional entities that own and manage these water supply facilities with
respect to any changes that may occur as a result of this proposed rule. We urge the agencies
to carefully consider the impact of this rule on water supply systems and make the appropriate
changes in the final rule to ensure that the public can continue to rely upon these sources for
dependable and affordable water supply.
Potential for Litigation
The City of Palo Alto prides itself on environmental stewardship and exceeds state and federal
mandates for the utility services we provide our residents. We consider ourselves a partner
with the federal and state governments in achieving the objectives of the Clean Water Act.
However, the proposed rule fails to provide the necessary clarity that gave impetus to this rule.
We support a rulemaking process that interprets court decisions and ensures future progress in
meeting the requirements of the Act. Unfortunately, the aggressive reach of this rule and its
ambiguous provisions and terminology introduces uncertainty, requires more agency analysis
and intervention, and creates increased potential for litigation. In order to avoid bureaucratic
delays and litigation, we provide the following examples of ambiguity that require clarification:
The definition of all “waters” adjacent to other jurisdictional waters needs to be
clarified. Existing requirements cover only adjacent wetlands, yet the concept is
expanded in the rule to include all waters.
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“Significant nexus” should be defined in science-based terms to determine whether
“other waters” are sufficiently linked to waters of the U.S. The rule defines significant
nexus as any connection that is “more than speculative or insubstantial.”
“Riparian area” and “floodplain” must be defined to better inform land use decisions
and describe the jurisdictional boundaries of regulation.
Ditches that are excavated in uplands, drain only uplands, and have less than perennial
flow are exempt from the rule. However “upland” is not defined, nor is “perennial
flow.” It is unclear how an applicant would be able to prove that a ditch would warrant
the exemption and whether the exemption is nullified if the ditch traverses a wet area.
This is particularly important for municipalities that maintain roadside ditches.
The wastewater treatment exemption has a history of legal challenge. Its application to
water reuse facilities and storm water features must be clearly defined.
We appreciate your consideration of these comments. The proposed rule is an ambitious start
to the necessary rulemaking process, but in its current form introduces greater uncertainty,
costly regulation, possible water supply reductions, and potential litigation. We strongly urge
the agencies to withdraw the rule and engage Clean Water Act partners, namely state and local
governments, and stakeholders in crafting a more feasible rule.
Sincerely,
Nancy Shepherd
Mayor, City of Palo Alto
cc: Palo Alto City Council
Palo Alto City Manager
Senator Barbara Boxer
Senator Dianne Feinstein
Congresswoman Anna Eshoo