ITEM: 17

SUBJECT: CONSIDERATION OF APPROVAL OF AN AMENDMENT TO THE WATER QUALITY CONTROL PLAN FOR THE SANTA ANA RIVER BASIN ESTABLISHING A TOTAL MAXIMUM DAILY LOAD FOR NUTRIENTS IN THE NEWPORT BAY/SAN DIEGO CREEK WATERSHED

DISCUSSION: The Water Quality Control Plan for the Santa Ana River Basin (Basin Plan) was adopted by the California Regional Water Quality Control Board, Santa Ana Region (SARWQCB), on March 11, 1994 and approved by the State Water Resources Control Board (SWRCB) on July 21, 1994 and by the Office of Administrative Law (OAL) on January 24, 1995. Pursuant to Section 303(d) of the federal Clean Water Act (CWA), the SARWQCB identified Upper and Lower Newport Bay (Newport Bay) and San Diego Creek, Reaches 1 and 2 (San Diego Creek), as being water quality limited; that is, the applicable water quality standards (beneficial uses and water quality objectives) are not being attained or are not expected to be attained with the implementation of technology based controls. The impairment is due, in part, to excessive levels of nutrients (e.g., nitrogen and phosphorus).

As required by CWA Section 303(d), on April 17, 1998 the SARWQCB adopted a Basin Plan amendment incorporating a Total Maximum Daily Load (TMDL) for nutrients in the Newport Bay/San Diego Creek Watershed (SARWQCB Resolution No. 98-09). The SWRCB approved the Basin Plan amendment/TMDL (Nutrient TMDL) on May 13, 1998 and forwarded it to OAL for approval. OAL is required to review the regulatory provisions of a Basin Plan amendment to ensure that it complies with the standards of the Administrative Procedure Act for necessity, clarity, authority, consistency, reference, and/or nonduplication. OAL staff reviewed the Nutrient TMDL and based on that review advised SWRCB and SARWQCB staff that certain provisions authorized the adoption of "regulatory provisions" without complying with appropriate consistency and procedural requirements.

The Nutrient TMDL was subsequently withdrawn from OAL consideration so that these concerns could be addressed. In order to address OAL's concerns, modifications were made, as appropriate, to the Nutrient TMDL. These modifications were approved by the SARWQCB on October 9, 1998 as SARWQCB Resolution No. 98-100 (Attachment 1). These modifications are minor and will not affect the implementation of the Nutrient TMDL.

POLICY ISSUE: Should the SWRCB:

1. Approve SARWQCB Resolution No. 98-100 amending SARWQCB Resolution No. 98-09 (Nutrient TMDL) and the Water Quality Control Plan for the Santa Ana River Basin.

2. Authorize staff to resubmit the regulatory provisions of the Nutrient TMDL (SARWQCB Resolution No. 98-09) and to submit the regulatory provisions of SARWQCB Resolution No. 98-100 to OAL for approval.

3. Authorize staff to submit the Nutrient TMDL (SARWQCB Resolution No. 98-09) and the approved amendments to the Nutrient TMDL (SARWQCB Resolution No. 98-100) to U.S. EPA for approval.

FISCAL IMPACT: SARWQCB and SWRCB staff work associated with or resulting from this action can be accommodated within budgeted resources.

RWQCB IMPACT: Yes, SARWQCB.

STAFF RECOMMENDATION: That the SWRCB:

1. Approves SARWQCB Resolution 98-100 amending SARWQCB Resolution No. 98-09 (Nutrient TMDL) and the Water Quality Control Plan for the Santa Ana Region.

2. Authorizes staff to resubmit the regulatory provisions of the Nutrient TMDL (SARWQCB Resolution 98-09) and to submit the regulatory provisions of SARWQCB Resolution No. 98-100 to OAL for approval.

3. Authorizes staff to submit the Nutrient TMDL (SARWQCB Resolution 98-09) and the approved amendments to the Nutrient TMDL (SARWQCB Resolution No. 98-100) to U.S. EPA for approval.

NOTE: Attachments not available electronically -- for a copy contact Stephen Fagundes at (916) 657-0914

October 26, 1998 Draft

WHEREAS:

1. The California Regional Water Quality Control Board, Santa Ana Region (SARWQCB) adopted a revised Water Quality Control Plan for the Santa Ana River Basin (Basin Plan) on March 11, 1994.

2. On April 17, 1998, the SARWQCB adopted Resolution No. 98-09 amending the Basin Plan by establishing a Total Maximum Daily Load (TMDL) for nutrients (Nutrient TMDL) discharged in the Upper and Lower Newport Bay (Newport Bay)/San Diego Creek Watershed.

3. On May 13, 1998, the State Water Resources Control Board (SWRCB) approved the Nutrient TMDL and forwarded the Basin Plan amendment to the Office of Administrative Law (OAL) for review of the regulatory provisions.

4. OAL staff reviewed the regulatory provisions and advised SWRCB and SARWQCB staff that certain provisions did not comply with the standards of the Administrative Procedures Act for consistency and procedural requirements. The proposed Basin Plan amendment was subsequently withdrawn from OAL consideration so that OAL's concerns could be addressed.

5. In order to address OAL's concerns, the SARWQCB approved SARWQCB Resolution No. 98-100 (Attachment 1) on October 9, 1998, modifying, where appropriate, those portions of the Nutrient TMDL that were of concern to OAL.

6. The SWRCB finds that the proposed modifications to the Nutrient TMDL are in conformance with the requirements for TMDL development specified in CWA Section 303(d).

7. The SWRCB finds that the proposed modifications to the Nutrient TMDL are in conformance with the requirements of SWRCB Resolution No. 68-16 (Statement of Policy with Respect to Maintaining High Quality of Waters in California).

8. The SARWQCB staff prepared documents and followed procedures satisfying environmental documentation requirements in accordance with the California Environmental Quality Act and other State laws and regulations.

9. The SWRCB will work with the California Department of Fish and Game to ensure that threatened or endangered species are protected, pursuant to Fish and Game Code Section 2055.

10. A Basin Plan amendment does not become effective until approved by the SWRCB and until the regulatory provisions are approved by OAL.

THEREFORE BE IT RESOLVED THAT:

The SWRCB:

1. Approves SARWQCB Resolution No. 98-100 amending the Nutrient TMDL (SARWQCB Resolution No. 98-09) and the Water Quality Control Plan for the Santa Ana Region.

2. Authorizes staff to resubmit the regulatory provisions of the Nutrient TMDL (SARWQCB Resolution No. 98-09) and to submit the regulatory provisions of SARWQCB Resolution No. 98-100 to OAL for approval.

Authorizes staff to submit the Nutrient TMDL (SARWQCB Resolution No. 98-09) and the approved amendments to the Nutrient TMDL (SARWQCB Resolution No. 98-100) to the U.S. Environmental Protection Agency for approval.

The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Resources Control Board held on November 19, 1998.

_____________________________________

Maureen Marché

Administrative Assistant to the Board