Environmental  Action...

RBOC's summary correspondence on the recent workshops and public comment period by the San Diego Regional Water Quality Control Board

  This letter  is RBOC President  Russ Robinson's most recent correspondence to the San Diego Regional Water Quality Control Board detailing the RBOC's position on the current proposed regulations governing the limitations on the use of anti-fouling paints in the Shelter Island Yacht Basin.

December 10, 2003

 Via overnight delivery

 December 2, 2003

 Ms. Lesley Dobalian

California Regional Water Quality Control Board

San Diego Region

9174 Sky Park Court, Ste. 100

San Diego, CA 92123-4340

 

RE:           Amendment to the Water Quality Control Plan for the San Diego Region to Incorporate a Total Maximum Daily Load (TMDL) for Dissolved Copper in Shelter Island Yacht Basin, San Diego Bay

 

- Public Review Draft Dated October 24, 2003

 

Members, San Diego Regional Water Quality Control Board:

   Recreational Boaters of California [RBOC] believes that the proposed action to amend the water quality control plan is premature, and requests that the Board refrain from adopting the proposed amendment at this time. 

   RBOC is the nonprofit organization that promotes and advocates the interests of boaters statewide before the legislative and executive branches of government.

   Our organization appreciates the interest of the San Diego Regional Water Quality Control Board in ensuring that the waters in Shelter Island Yacht Basin are clean and safe for our citizens and the environment.  The recreational boating public, including approximately 2,000 boaters in the affected area, has a vital interest in protecting and enhancing water quality.

   RBOC believes it is important that any action to adopt the regulation be in accordance with all applicable laws, rules, guidelines and orders that apply to this action.  However, it is our understanding that the adoption of the amendment is precluded by Executive Order S-2-03 that has been recently promulgated by Governor Schwarzenegger.

   Governor Schwarzenegger issued Executive Order S-02-03 on November 17, 2003 with an immediate effective date. The text and intent of that action is for regulatory agencies to cease processing proposed regulatory actions for further review for 180 days.


RBOC Letter to Ms. Lesley Dobalian

December 2, 2003

(PAGE TWO)

   RBOC would also like to emphasize that the proposed amendment contains findings and actions that directly impact the boaters as well as the clubs and marinas where many boaters keep their boats. It is also anticipated that the action proposed for Shelter Island will serve as a precedent that will be followed by similar actions in jurisdictions throughout the state and even in other parts of the country. It is therefore critical that any proposed action be based upon sound studies, findings and facts.

   However, based upon our analysis of the public review draft, RBOC believes that this is not the case. 

   It has been brought to our attention, for instance, that at least one significant scientific study demonstrating that environmental protection can be accomplished with copper-based anti-fouling hull coatings has not been considered. That study is “Biofouling Resistance of Cupronickel – Basics and Experience”, authored by W. Schleich and K Steinkamp, KM Europa AG, Division Marine Applications, Germany.

   That study makes the affirmative statement that no detrimental ecological effects are expected when cupronickel is used as a design material and corrodes at normal corrosion rates. According to that study, the toxic ions that are released tend to generate organo-metallic complexes and become, therefore, biologically unavailable.

   RBOC is also troubled by the implicit understanding that the proposed action would not pose significant undue hardships to the boating community, a conclusion that has been stated informally in the public workshops. It is our belief that this is not a realistic conclusion. The proposed action will force boaters, clubs and marinas to take significant actions at great cost, and many boaters will not have the financial ability to comply.

   It also appears that the jurisdiction of the Board over the basin is questionable.  It is our understanding that the Shelter Island Yacht Basin is a navigable waterway, and that the jurisdiction of the board does not extend to navigable waterways.

   RBOC is also concerned that the proposed action is inappropriately based upon speculation, questionable conclusions, and several key assumptions. 

   It was stated at the recent workshop that the specific cause of copper ions leaching from the bottom of docked boats, and that tests have not been conducted to determine the sources of contamination including but not limited to storm drain runoff.

  In addition, RBOC questions the conclusion that has been made that the levels of copper found in the tissues of sea organisms transported into the basin necessarily equates to the

RBOC Letter to Ms. Lesley Dobalian

December 2, 2003

(PAGE THREE )

 levels of contamination in the water – especially since this appears to be a fundamental basis for the proposed action.

   The conclusion is far from certain, in light of the report of the Environmental Bureau of Investigation that the levels of copper in found in sea animals do not necessarily equate to the levels of contamination in the water.

  The proposed action is also based upon several assumptions that may in fact not be true.  Perhaps the most significant is the assumption that the presence of copper has an adverse effect.  The metal is considered an essential part of life, and is required for iron metabolism and other bodily functions.

  The assumption is also being made that certain data is correct even though a great portion of the data is in fact quite antiquated. The most recent data on actual copper levels in the Shelter Island Yacht Basin, for instance, was conducted in the year 2000 by the US Navy.

   In addition, it is being assumed that the levels of copper in the basin are above standard levels and that, therefore, marine life must be suffering. However, there has been no actual study to determine if this is accurate.

   Yet another assumption is that most boats remain in their slips so the greatest levels of contamination come from natural leaching, to be exact, 98%. It does not follow that an "exact" percentage can be based upon assumptions.

   It has also been stated in the public workshops that there have been no adverse effects on marine life measured in the Shelter Island Yacht Basin.  This is not a sound basis for the proposed action, especially since the basin was placed on the list of impaired waters in 1996.

   Yet another concern has arisen with the statements that have been made that the limited data that has been used for the development of the proposed action was gathered on tests performed on simulated boat hulls. Utilizing data generated by this type of activity is inappropriate for the significant proposed action.

   It also appears that the proposed action is based upon the existence of a situation which has not occurred: the enactment of either a national or statewide ban on the use of copper-based antifouling paints.

RBOC Letter to Ms. Lesley Dobalian

December 2, 2003

PAGE FOUR

    RBOC believes that the proposed amendment is premature and should not be adopted until the essential studies have been conducted, and until all of the pertinent studies that have already been conducted have been analyzed and their findings incorporated into any approach that is taken by the board.

   RBOC also urges the Board to consider reasonable alternatives to the proposed action.  The boating community has actively participated in the development of a “best management practices” approach to environmental issues that has produced noted success for the protection of the environment on challenging issues such as the presence of MTBE in bodies of water that are sources of drinking water. It would appear that a collaborative effort could be a productive and effective approach to the copper issue as well.

   RBOC appreciates this opportunity to make this request, and we look forward to your favorable consideration.  I can be reached at (408) 732-0320, and our legislative advocate, Jerry Desmond, Jr., can be reached at (916) 441-4166.

 Sincerely,

  

Russ Robinson, President

 Rboc/Ldobalian12-03
 

 

 

May 15, 2003

 

Did you know...

Very soon, the San  Diego Regional Water Quality Control Board will request enactment of legislation that will facilitate the implementation of  a state mandated permit system, requiring a NPDES Permit.   (National Pollutant Discharge Elimination System)

Letters are needed requesting an imediate delay of the SDRWQCB hearing scheduled for June 11 to take public comment on Order No. R9-2003-0215.

Your public comment about  this pending Legislation will be vital. apathyThis legislation needs  to pass,  however then it will be too late.     So plan on attending and speaking to the matter at the hearing.  Correspondence should be sent to:

Mr. John Robertus
Executive Officer & BOARD
California Regional Water Quality Control Board
San Diego Region
9174 Sky Park Court, Suite 100
San Diego, CA 92123-4340

NOTE  Letters sent must be received by 5 P.M. June 5 in order to be considered.

This legislation is directly focused on Marinas and Yacht Clubs and excludes Port Operations, Commercial Businesses, the Military and other non-recreational activities, and has been crafted specifically by the primary governing agency.  It contains very stringent regulations with   known detrimental  impacts affecting a vast cross section of recreational users and water oriented activity.  

When enacted, all Marinas and Yacht Clubs will require a NPDES Permit to operate.   This permit and the extensive use of stringent regulations are geared to reduce the the non-source point pollution generated by all recreational users of the California Bays and Harbors.   

The significance and types of pollution are detailed in the SDRWQCB prepared Fact Sheet, 26 pages used as the "indictment" and the logic basis for the proposed legislation.    Read it and weep... 

 Enactment of these regulations permit the setting of regulatory standards, government supervised, unfunded "citizen policed" enforcement , and allows for the  implementation of an arbitrary  "Zero Tolerance" non-compliance enforcement program .   This regulatory tool will be available to a number agencies exercising their self-meditated agendas.     Additionally the "Permit" revenue collected is directed to be used to offset known permit administration and enforcement expenditures.

Well crafted legislation positions the burden of enforcement of these proposed  new regulations on marina operators and on Yacht Clubs, their directors and staff.    Check this list out!   Other features permit civil litigation (as with the ADA legislation) as a direct action in compliance disputes.  

Of special interest is the effectiveness and success of copper as an inhibitor of marine boat bottom growth.    Copper is the number one item on other proposed legislation establishing mandated "Zero Tolerance" regulations to limit the use of incompatible compounds that are effective at reducing marine growth on boat bottoms and electrolysis caused by galvanic action of dis-similar metals in salt water.  (No more zincs!)

 
What Can be Done!
Letters to the S.D. RWQCB Executive Director and Board Members requesting a meeting 
delay will be a meaningful signal to this agency that there is real public concern and interest 
in this matter.   Additionally correspondence requesting a delay will further support the 
recent RBOC request for a 4 month delay.  (5/19/03 RBOC Letter)
Comments can demonstrate  the significant concern for an accurate assessment of the data 
used for setting this proposed binding public law.    The need for an accurate careful review
 of the data referenced by the problems identified in the SD RWQCB Fact Sheet (2.3meg PDF file)
require real public scrutiny.   Of note not mentioned, the proposed regulations have selected 
data standards different than the recent new federal standards  adopted as the  national 
standard.    The potential loss of federal CWA (Clean Water Act) grant funding resulting from 
adoption of non-CWA standards must be reconciled.   (Ref. info. below)
 
Letters to RWQCB must be received by 5 P.M. June 5 in order to be considered. 
 
Additional benefits can also be gained by sending or e-mailing a copy of your RWQCB
 correspondence to your state legislators.    Visit the links below for address and e-mail 
information.         State Assembly          State Senate

 

What are Key Dates!

 Comments by June 6

June 11 Board Hearing - The Regional Board is scheduled to consider Order No. R9-2003-0215 on June 11, 2003 at a public hearing to be conducted at the Board’s regular meeting. The meeting commences at 9:00 am at the following location:

 

Who can be Contacted:

 California Legislature Home Page   http://www.leginfo.ca.gov/yourleg.html

State Senators    

http://www.sen.ca.gov/~newsen/senators/senators.htp

State Assembly Members

http://www.assembly.ca.gov/acs/acsframeset7text.htm

 
References:

Page 8, lower.. Item #8 then New section titled: 

POTENTIAL NEGATIVE PROGRAMMATIC EFFECTS

From:

ST ATE OF CALIFORNIA

State Water Resources Control Board

Staff Review Document:

COMMENT ON ADVANCED NOTICE OF PROPOSED RULEMAKING ON

DEFINITION OF "WATERS OF THE UNITED STATES"

March 12, 2003

 

To:              California Boaters

From:          Russ Robinson, President

Bill Patton, Vice President-South

Recreational Boaters of California

Date:           May 14, 2003

Re:              Proposed Coastal Marina Water Quality Permit

In response to inquiries from boaters and clubs, this is to provide an overview of the proposed Coastal Marina Water Quality Permit [Order No. R9-2003-0215].  This is a general “National Pollutant Discharge Elimination System” [NPDES] permit, intended to cover discharges resulting from activities at marinas.

The San Diego Regional Water Quality Control Board is scheduled to consider this proposed permit at its June 11 meeting in San Diego.

As proposed on May 12, it is intended that the permit would be required of marinas - including yacht clubs - that:

[A] are located within the Board’s jurisdiction; and 

[B] are situated along the coast; and

[C] have slips for at least 10 boats.   

This new permit would not apply to commercial operations, navy operations, inland reservoirs [considered to be already adequately regulated as sources of drinking water], or boats at moorings or anchorages outside marina boundaries.

The permit would apply to marinas and yacht clubs where approximately 11,000 boats including those berthed at these harbors:

-         Dana Point Harbor.

-         Oceanside Harbor.

-         Mission Bay.

-         San Diego Bay

-         Camp Pendleton.

      This action by the SDWQCB could be a precedent for similar action by other regional water quality control boards across the state.

                                  [continued]

RECREATIONAL BOATERS OF CALIFORNIA

May 14, 2003 - Proposed Coastal Marina Water Quality Permit

PAGE TWO

·        The Requirements - As proposed, marinas and yacht clubs would be required to:

 [A] Complete and submit to the Board within 60 days of the effective date of the permit a General Permit Authorization Application document together with required attachments, a map showing the exact location of the marina and possible discharge locations, and an annual fee in an unspecified amount.

[B] Prepare, submit, implement and, within one year, comply with a written Marina Pollution Prevention Plan.  The plan must incorporate several components intended to reduce or prevent discharge of waste or pollutants to surface waters, including:

-         Planning and organization to develop and implement the plan;

-         A site map;

-         An inventory of materials;

-         A description of pollution-related activities;

-         An assessment of pollution discharge potential;

-         A description of existing and new Best Management Practices to be implemented;

-         Training of staff;

-         Monitoring of the facility; as well as

-         Maintenance of logs and reporting.

[C] Comply with various provisions, prohibitions and requirements set forth in the proposed order on an ongoing basis. Some are:

-         Taking reasonable steps to minimize, correct or prevent an adverse impact on the environment resulting from noncompliance.

-         Performing daily visual monitoring.

-         Performing quarterly site evaluations.

-         Preparing quarterly spill/illicit discharge logs.

-         Preparing and submit annual summaries of spills.

-         Evaluating monitoring data and reporting annually.

-         Providing advance notice of any changes that may cause noncompliance.

-         Reporting any noncompliance that may endanger health or the environment.

-         Providing the Board with any information it may request to determine compliance.

-         Notifying the Board of any new introduction of pollutants.

-         Notifying the Board of any substantial change in the volume or character of pollutants being introduced into the discharge.

[continued

RECREATIONAL BOATERS OF CALIFORNIA

May 14, 2003 - Proposed Coastal Marina Water Quality Permit

PAGE THREE

·        Responsibilities - Marinas and yacht clubs would be responsible for compliance with these proposed requirements. Individual boaters would continue to be responsible for compliance with the "no discharge zone" requirements which currently apply to each of the impacted marinas and yacht clubs, as well as compliance with any and all laws \ regulations that apply to their boats.

·        Documents \ More Detailed Information  – The Board on May 12 issued the following documents related to the proposed permit. They are available at its website: http://www.swrcb.ca.gov/rwqcb9/programs/sdbay%20permit/sdbay%20permit.html

·         Fact Sheet

·         Tentative Order No. R9-2003-0215

·         Monitoring and Reporting Program No. R9-2003-0215

·         Attachment A- Application Requirements Information Sheet

·         Attachment B- Basin Plan Waste Discharge Prohibitions

·         Attachment C- Code of Federal Regulations

·         References

The Board conducted a public workshop on April 18 and has been reviewing the input received then. In addition, it is our understanding that the Board believes that the proposal is reasonable in that it emphasizes Best Management Practices and education as opposed to enforcement, and in that it does not propose specific effluent limits.  The proposal is also considered “past-due” because, since 1976, each area subject to the proposal has been a no-discharge zone.

·        Copper-based Antifouling Paint - It should also be noted that the Board is also considering copper-based antifouling paint in a separate proceeding.  Consideration is currently being given to the adoption of specific, “Total Maximum Daily Loads” [TMDLs] that will impact discharges of copper in the Shelter Island Yacht Basin portion of San Diego Bay. It appears that different levels are being proposed for specific locations. For example, the following conceptual numbers have been provided:

[A] a TMDL of 1 part per billion at the mouth of the basin.

[B] a TMDL of 3.1 parts per billion half-way down the basin.

[C] a TMDL that is two to three-times that high at the end of the basin.

 [continued]

RECREATIONAL BOATERS OF CALIFORNIA

May 14, 2003 - Proposed Coastal Marina Water Quality Permit

PAGE FOUR

·        Comments by June 6   - Interested persons are invited to submit written comments regarding the proposed Coastal Marina Water Quality Permit [Order No. R9-2003-0215]. Comments should be submitted in person or by mail to:

Executive Officer

California Regional Water Quality Control Board

San Diego Region

ATTN: Peter Michael

9174 Sky Park Court, Suite 100

San Diego, CA 92123-4340

Phone: 858-467-2990

Email: michp@rb9.swrcb.ca.gov

The Board is requesting that written comments be received by the Board before June 11, 2003, or if hand carried, by the end of the Regional Board public hearing on this permit on June 11, 2003. To ensure that the Board has the opportunity to fully study and consider written material, comments should be received no later than 5:00 p.m. on June 6.

·        June 11 Board Hearing - The Regional Board is scheduled to consider Order No. R9-2003-0215 on June 11, 2003 at a public hearing to be conducted at the Board’s regular meeting. The meeting commences at 9:00 am at the following location:

San Diego Water Quality Control Board Regional Board Room

9174 Sky Park Court

San Diego, California

#     #     #

Rboc/SDRWQCBM5-13-03