State Water Resources Control Board s1

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Mr. James Herink State Water Resources Control Board Office of the General Counsel 1001 J Street, 22nd Floor, Sacramento, California 95814 RE: RESPONSE TO PETITION - SWRCB File A-2072

On July 16, 2010 the State Water Resources Control Board (State Board) advised the South Orange County Wastewater Authority (SOCWA) and the South Coast Water District (SCWD) (jointly Petitioners) that their Petition, referenced above, was complete and the State Board would commence its review. The State Board further indicated that all interested parties could respond to the petition within 30 days. ______is an interested party and is pleased to submit its comments on this matter.

1 . [Your organization] is an Interested Party

[State facts describing the function of your entity, its geographic boundary and your interest in the issues raised such as: We are a wastewater agency that relies on outfalls such as the San Juan Creek Ocean Outfall (SJCOO) to discharge wastewater. We are also concerned about the impact these issues may have on the ability to obtain and use recycled water or to tap previously unused brackish water supplies. OR

We are a water agency which is charged with the implementation of a recycled water project and we view the issues raised herein as impacting our ability to perform this vital undertaking. We are also concerned about the impact these issues may have on the ability to tap previously unused brackish water supplies. OR We are a City and we are deeply concerned with the need to have outfalls such as the San Juan Creek Ocean Outfall (SJCOO) available to us for meeting current needs and future growth. We are also concerned about the impact these issues may have on the ability to obtain and use recycled water or to tap previously unused brackish water supplies.

We are a water agency/organization/city/county and we are deeply concerned about the water shortage in Southern California and our reliance on the Delta for our water supplies. We believe that the State Board and all regional boards should make every effort to support the development of sustainable local water sources and recycled water projects. ] 2. The State Board should review the petition to ensure a consistent statewide approach with respect to brine discharge

The State Board is responsible for resolving statewide standards that are being applied inconsistently among the regional water boards. Currently, the regional water boards are inconsistent in their approach to locating sampling sites for determining compliance with brine effluent limitations. For example, in this case, the San Diego Regional Water Quality Control Board (SDRWQCB) amended the prior NPDES Permit to require SCWD to sample the GRF’s brine discharge and determine compliance with the Ocean Plan standards prior to blending with other wastewater at the outfall. In contrast, the Monterey Regional Water Pollution Control Agency (MRWPCA) is allowed to discharge brine waste blended with secondary treated wastewater from its treatment plant into Monterey Bay pursuant to its NPDES permit issued by the Central Coast Regional Board.

The SDRWQCB, itself, also authorizes the blending of brine discharge. The City of Oceanside operates a Brackish Groundwater Desalination Facility that treats groundwater extracted from the Mission Hydrologic Subarea for potable uses. SDRWQCB allows this facility to dispose waste brine to the Oceanside Ocean Outfall pursuant to its NPDES Permit. Unlike the outfall monitoring requirements for the SCWD GRF, the waste brine is sampled at the outfall after it is blended with other wastewater.

Regional Boards, as well as all water and wastewater agencies should be concerned about the statewide implications of this isolated SDRWQCB approach as there are no factual distinctions between the GRF and other existing permitted facilities and other planned facilities where ocean disposal of brine in compliance with discharge point standards (at the outfall) is desirable and expected.

3. The SDRWQCB decision undermines the State Board’s Recycled Water Policy.

On or about June 4, 2008, Governor Arnold Schwarzenegger signed Executive Order S-06-08 wherein he proclaimed a statewide drought and directed his Department of Water Resources and other entities to take immediate action to address the situation. In recognizing this proclamation, the State Board wrote in support of the governor’s directive: “ California is facing an unprecedented water crisis. The collapse of the Bay-Delta ecosystem, climate change, and continuing population growth have combined with a severe drought on the Colorado River and failing levees in the Delta to create a new reality that challenges California’s ability to provide the clean water needed for a healthy environment, a healthy population and a healthy economy, both now and in the future.”

Recycled Water Policy, Adopted February 3, 2009 by the State Board.

The State Board has declared that it “will achieve [its] mission to ‘preserve, enhance and restore the quality of California’s water resources to the benefit of present and future generations,’” and it “strongly encourage[s] local and regional water agencies to move toward clean, abundant, local water for California by emphasizing appropriate water recycling, water conservation, and maintenance of supply infrastructure and the use of stormwater (including dry-weather urban runoff) . . . .” Id.

Furthermore, the State Board has stated that

“After experiencing two years of drought, California's water reserves are extremely low in many parts of the state. The California water rights system is designed to provide for the orderly allocation of water supplies in the event that there is not enough water to satisfy everyone's needs… If you plan to grow crops that will need water beyond the limited supply available, you may find yourself in a very serious dilemma… If you hold a water right for domestic or municipal use, you may also need to reduce water use and seek alternate supplies. If there are no alternate supplies available, you may be required to reduce water use down to what is necessary for health and safety purposes.

Notice of Surface Water Shortage for 2009, February 26, 2009.

Consistent with this backdrop, Water Code Section 13241 provides that in establishing water quality objectives, each regional board must consider “the need to develop and use recycled water.” Water Code § 13241(f).

It is clear that the discharge of the GRF brine effluent to the outfall did not and would not result in any significant environmental impact since the outfall was in compliance and would remain in compliance with the Ocean Plan standards. In fact, the increase in Total Dissolved Solids (TDS) at the point of compliance remained at approximately 11.5 mg/liter; the San Juan Creek Ocean Outfall (SJCOO) is permitted to discharge 30 mg/liter, leaving more than 60 percent of the outfall’s permitted TDS capacity unused. In contrast, the need to redirect the brine effluent to SOCWA’s J.B. Latham Treatment Plant in Dana Point directly affects the plant’s ability to recycle water due to increased salinity within the plant. Besides the obvious impact on SCWD’s effort to provide a sustainable new local source of water (as urged by the State Board), the SDRWQCB’s action also threatens water recycling projects within its jurisdiction. If such an approach is adopted by other regional boards it could undermine similar efforts throughout the state in direct contravention of the clear legislated and regulatory policy statements supporting the critical need for development of brackish and degraded water resources. Surely, this could not have been intended and the State Board must rectify the situation and act consistent with the goals set forth in its Recycled Water Policy.

4. Sampling at the outfall is the appropriate determination of compliance under the federal clean water act and the state Porter Cologne Act

Effluent is not regulated under the Clean Water Act (“CWA”) until it is discharged into “waters of the United States” or the ocean. “Effluent limitation” is defined as “any restriction . . . on quantities, discharge rates, and concentrations of pollutants which are discharged from point sources into waters of the United States, the water of the continuous zone, or the ocean.” 40 C.F.R. § 122.2. Furthermore, “discharge” is defined as “[a]ny addition of any ‘pollutant’ or combination of pollutants to ‘waters of the United States’ from any ‘point source.’ 40 C.F.R. § 122.2. The CWA defines the term “waters of the United States” as “navigable water” meaning “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). Therefore, both definitions limit regulation to effluent discharged into waters of the United States and the CWA does not regulate effluent unless and until it reaches those waters.

In this case, the sampling point which provided the data for determining whether an effluent limitation was exceeded was essentially a pipe that does not qualify as a tributary or water body in general. This pipeline terminates at the point where the GRF was transferred to the SJCOO pipeline and prior to discharge at the permitted ocean outfall – the first point at which “waters of the United States” are involved. Thus, the permit in question incorrectly establishes the point for measuring for compliance; it should instead be when it enters into the waters of the United States. The established facts are that in this matter, when discharged into the waters of the United States, the discharge from the GRF would not have created a situation where the effluent limitations of the SJCOO would have been exceeded.

The resolution of these issue is not only critical for our (agency) (city) but for any operation, public or private, that involves the disposal of brine and the development of sustainable local water sources and recycled water. These are critical statewide policy issues that demand the attention of the State Board, and justify affirmation of the petition.

[Closing Signature]

cc: Patricia J. Chen, Esq. Miles· Chen Law Group, P.C. 9911 Irvine Center Drive, Suite 150 Irvine, CA 92618 [email protected]

Steven L. Hoch, Esq. Brownstein Hyatt Farber Schreck, LLP 2029 Century Park East, Suite 2100 Los Angeles, CA 90067 [email protected]·

Catherine George Hagan, Esq, Office of Chief Counsel, State Water Board clo San Diego Region, Regional Water Quality Control Board 9174 Sky Park Court, Suite 100 San Diego, CA 92123-4340 chagan@waterboards,ca,gov