A Sea Change in Pollution Fight

Whether requiring filters in storm drains, banning some garden pesticides or regulating how often people can wash their cars, new water pollution limits taking effect in Orange County could change the way residents do some basic household chores.

Newport Bay, which has long been unsafe for swimming and fishing, is the first of 15 impaired Orange County waterways to be targeted with rules on how much sediment, bacteria, nutrients and other materials can flow into them.

The Santa Ana Regional Water Quality Control Board’s move to regulate pollutants entering Newport Bay puts it in the forefront of governmental bodies enforcing a part of the federal Clean Water Act historically considered too unwieldy to impose.

“The bottom line is a cleaner bay, a bay completely safe to swim in, that’s clear and allows vegetation and fish and all the marine life to prosper,” said Dave Kiff, deputy city manager of Newport Beach.

The limits--known as TMDLs, or total maximum daily loads--are being set by a variety of environmental agencies in an effort to protect waterways throughout California and the nation. TMDLs are precise limits on the amounts of specific pollutants that can enter an impaired waterway from open space, agricultural operations and even residential neighborhoods.

Critics, including farm industry officials and developers who would have to spend more to meet the limits, say it is an open question whether the standards will improve any waterways. Even some regulators have doubts, saying conventional enforcement tactics are more effective.

But environmentalists say the controversy is itself telling.

“The ruckus in this situation is directly proportional to the potential impacts,” said David Beckman, senior attorney with the Natural Resources Defense Council’s Los Angeles office. “The ruckus indicates that this program might actually work.”

The northern portion of Upper Newport Bay has been off-limits for water-contact recreation and shellfish harvesting since 1974. Other portions of the bay have been restricted in subsequent years, mostly for high bacteria counts.

When it was passed in 1972, the Clean Water Act required that pollution limits be set for all U.S. waterways considered unsafe for people and aquatic life. The U.S. Environmental Protection Agency first pursued more obvious sources of pollution, such as oil refineries, manufacturing and sewage treatment plants.

But after dozens of lawsuits across the country--including one filed by Defend the Bay over pollution in Newport Bay--the agency reconsidered and mandated that states set limits for pollution sources, such as farms, nurseries and cities, that were largely ignored in earlier enforcement efforts.

“These are tools to ratchet down pollution so we can achieve water quality standards and get water bodies off the lists of polluted waterways,” said Beckman, noting that a third of the state’s water bodies are polluted.

David Smith, TMDL team leader for the EPA’s regional office in San Francisco, said each of California’s 509 impaired water bodies must have some 1,200 TMDL standards in place by 2012. Nationwide, about 40,000 TMDLs will have to be established.

“This is really the one tool in the Clean Water Act that looks comprehensively at what’s going on in individual watersheds and accounts for individual insults to a water body that add up to be a really bad insult,” Smith said.

While Newport Bay is the first to be targeted, limits will be set for the county’s 14 other polluted waterways over the next decade. The state’s other regional water boards have similar efforts underway. Each waterway must be handled separately.

“Newport Bay can handle so many pounds of this pollutant, [so] we take that number and apportion it out to the various people contributing to [pollution in the bay],” said Kurt Berchtold, assistant executive officer for the Santa Ana regional board.

Those amounts would be much like air pollution credits now widely used--and traded--in regulating smoke-spewing industries.

For example, 250,000 tons of sediment now flows into Newport Bay and its tributaries every year, choking habitat, hindering navigation and requiring regular, costly dredging. By 2008, that amount must be reduced to 125,000 tons.

Newport Beach now is paying about $90,000 a year to maintain and clean catch basins that have been installed upstream to stop sediment from entering the bay. The city also is participating in a $28-million U.S. Army Corps of Engineers dredging project in the Upper Bay that is expected to last 20 years, Kiff said.

Nutrients--nitrogen and phosphorous--also have created problems in the bay, causing algae blooms that deplete the water’s oxygen content, harming aquatic life and affecting recreational use. The TMDL for nutrients will reduce significantly the amount of nitrogen and phosphorous entering the bay.

Newport Beach--along with its upstream neighbors--is monitoring nitrogen and phosphorous levels along San Diego Creek. The Irvine Ranch Water District also is filtering San Diego Creek water through the San Joaquin marsh, which takes 14 days and naturally removes a significant amount of nutrients from the water before it enters the bay, Kiff said.

Fecal coliform bacteria levels have been dangerously high throughout the bay because of urban, agricultural and storm water runoff, as well as natural sources, such as birds. The pollution limits for bacteria would have the bay meeting water-contact recreation standards by 2014, and shellfish harvesting standards by 2020.

The city now is conducting a $175,000 state-funded study to find fecal coliform sources, which are notoriously hard to pinpoint. This information is expected to lead to strategies to reduce bacteria entering the bay.

The Santa Ana regional board also plans to establish a TMDL for toxic materials such as lead, copper, the pesticide DDT and PCBs by 2002.

The fecal coliform and toxics limits, in particular, could mean stricter rules for homeowners and businesses in the Newport Bay watershed, Kiff said.

“We joke about the ‘urban-runoff police,’ that there will be people enforcing car-washing regulations and [issuing] citations and fines if your sprinkler is on too long, and if you didn’t pick up after your pet,” Kiff said. “That’s not out of the question.”

The San Diego regional board, which shares jurisdiction of Orange County with the Santa Ana board, is working on four TMDLs in San Diego County. The board’s chairman, Wayne Baglin, believes the limits are too costly and time-consuming.

“I’m very suspicious of them because, from my perspective, public employees think that conducting a study is taking action,” Baglin said. “So what’s happening is no one’s cleaning up the water; all they’re doing is producing more paperwork. TMDLs are lifetime careers for all public employees and consultants.”

Baglin said the target dates, which often are 10 to 20 years away, are unsatisfactory and that regulators ought to force municipalities to clean up their waterways immediately.

Developers also are leery of TMDLs, saying they add another layer of regulation to an already cumbersome process. Compliance with federal, state and local regulations already adds $95,000 to $115,000 to the cost of a $300,000 home in Orange County, said Laer Pearce, executive director of the Coalition for Habitat Conservation, a coalition of large landowners and utilities.

“What’s going to happen is you’re going to drive up the cost of complying into the billions of dollars and maybe get a microscopic tick on the scale of environmental improvement,” he said. “Everybody wants to be good, but where’s the cost-benefit analysis?”

Environmentalists, however, are convinced that TMDLs are vital to improve water quality.

“The state water board and the EPA both have dropped the ball for 20 years,” said Beckman, who represented Heal the Bay and the Santa Monica BayKeeper in a lawsuit against the EPA that led to a massive settlement in January 1999. The agency ultimately agreed to set pollution limits in Los Angeles and Ventura counties--a task involving beaches and more than 130 water courses.

“Historically, [water officials] left a lot of tools in the toolbox,” Beckman said. “That is changing. This is a tool that has not been used before, potentially a very powerful tool [that] has had the effect of really shaking up a lot of dischargers.”

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Cutting Back

The Santa Ana Regional Water Quality Control Board has set precise limits on how much bacteria, sediment and nutrients enter Newport Bay.

FECAL COLIFORM

At 43rd Street Beach in Newport Bay, from March to December 1999 (the time county took fecal coliform samples), there were an average of 1,887 organisms per 100 milliliters of water.

Swimming in such contaminated water can lead to nausea, vomiting, diarrhea and respiratory, ear, nose and eye problems.

Fecal coliform limit:

coming from: urban, storm water and agricultural runoff, natural sources (birds), boats, etc.

By 2014, the water will meet swimming standards (monthly averages of less than 200 organism in 100 milliliters of water with no more than 10% of samples exceeding 400 organisms per 100 milliliters of water).

By 2020, the water will meet shellfish harvesting standards (monthly averages of less than 14 organisms per 100 milliliters of water with no more than 10% of samples exceeding 43 organisms per 100 milliliters).

SEDIMENT

There is about 250,000 tons of sediment coming the Bay and its tributaries every year.

Sediment chokes habitat and requires costly dredging for navigation.

Sediment limit:

coming from: Irvine, Tustin, Lake Forest, Costa Mesa, Santa Ana, Newport Beach and Orange County

-reduce the annual average sediment load into the watershed by 50% to 125,000 tons per year by 2008.

NUTRIENTS

Nutrients--nitrogen and phosphorus--contribute to algal blooms, which deplete the water’s oxygen supply and are not aesthetically pleasing.

Between 1990 and 1997, the average amount of nitrogen entering the Newport Bay watershed was 1,087,000 lbs. per year New limits require that this be gradually reduced to 298,225 lbs. per year by 2012.

TOXICS

Toxics, such as copper, lead, DDT and PCBs, harm marine life. A toxics limit is being developed and should be completed by 2002.

Sources: State Water Resources Control Board, Santa Ana Regional Water Quality Control Board

Graphics Reporting by SEEMA MEHTA

Local Pollution

Of the 509 impaired water bodies in California, 15 are in Orange County:

-Anaheim Bay (metals, pesticides)

-Huntington Harbour (metals, pathogens, pesticides)

-Newport Bay, Lower (metals, nutrients, pathogens, pesticides, priority organics)

-Upper Newport Bay Ecological Preserve (metals, nutrients, pathogens, pesticides, sediment/silt)

-San Diego Creek, Reach 1 (metals, nutrients, pesticides, sediment/silt)

-San Diego Creek, Reach 2 (metals, nutrients, sediment/silt, unknown toxicity)

-Pacific Ocean, Aliso (high coliform count)

-Pacific Ocean, Dana Point (high coliform count)

-Pacific Ocean, Laguna Beach (high coliform count)

-Pacific Ocean, Lower San Juan (high coliform count)

-Pacific Ocean, San Clemente (high coliform count)

-Aliso Creek mouth (high coliform count)

-San Juan Creek mouth (high coliform count)

-Aliso Creek (high coliform count)

-San Juan Creek, Lower (high coliform count)

Sources: State Water Resources Control Board, Santa Ana Regional Water Quality Control Board

Graphics Reporting by SEEMA MEHTA