HomeMy WebLinkAbout2023-12-21; Notice of Violation from the San Diego Regional Water Quality Control Board (Districts - All); Gomez, PazCoun cil Memor andum
December 21, 2023
To:
From:
Via: Geoff Patnoe, Assistant City Manager
{city of
Carlsbad
Memo ID# 2023126
Re:
Honorable Mayor Blackburn and Members of the City Council
Paz Gomez, Deputy City Manager, Pub~ic arks
Notice of Violation from the San Dieg gional Water Quality Control Board
(Districts -All)
This memorandum provides essential information regarding a Notice of Violation No.
R9-2023-0202 dated December 15, 2023 (Attachment A), issued by the San Diego Regional Water
Quality Cont rol Board (San Diego Water Board).
Background
The City of Carlsbad, along with 37 other agencies in San Diego, Orange, and Riverside Counties,
is subject t o the requirements of San Diego Water Board Order No. R9-2013-0001, as amended
by Order Nos. R9-2015-0001 and R9-2015-0100 (Stormwater Permit), and can be viewed at the
following link:
Order No. R9-2013-0001, as amended by Order Nos. R9-2015-0001 and R9-2015-0100
Originally adopted in 2013, this Stormwater Permit includes Bacteria Total Maximum Daily Load
(TMDL) requirements and limitations, particularly concerning bacteria levels in receiving waters
like the Pacific Ocean. The TMDL mandates monitoring, assess_ments, and annual reporting to the
San Diego Water Board by the responsible agencies.
While several agencies, including Carlsbad, are named responsible for the Pacific Ocean Shoreline
at Moonlight State Beach in the City of Encinitas, only the City of Encinitas contributes any runoff
to Moonlight State Beach . Nevertheless, all five agencies (i.e., Carlsbad, Encinitas, Escondido, San
Marcos and the County of San Diego) are technically accountable for TMDL responsibilities,
including water quality monitoring, assessments and annual reporting. Encinitas, as the sole
discharging agency to Moonlight State Beach, has undertaken these TMDL requirements on
behalf of all five agencies.
Discussion
Water quality monitoring and assessment related to the Bacteria TMDL commenced in 2015,
with the first reports submitted in January 2017. Subsequently, six more TMDL annual reports
were submitted to the San Diego Water Board . However, the January 2022 submission of the
fiscal year 2020-21 TMDL Annual Report recently prompted comments from the San Diego Water
Public Works Branch
Environmental Sustainability Department
1635 Faraday Avenue I Carlsbad, CA 92008 I 442-339-2799 t
Council Memo -NOV from the San Diego Regional Water Quality Control Board (Districts-All)
December 21, 2023
Page 2
Board, particularly regarding assessment calculations and compliance with TMDL requirements in
the Stormwater Permit.
In addition to the Moonlight State Beach TMDL report, the San Diego Water Board staff
identified deficiencies in all submitted TMDL reports for the 29 responsible agencies in San Diego
County. This situation underscores a notable incongruence in the interpretation of the TMDL
requirements within the Stormwater Permit between the responsible agencies and the San Diego
Water Board.
Following discussions and meetings with San Diego Water Board staff in 2022, the City of
Encinitas agreed to modify assessment methodologies and reporting to align with the Board's
interpretation of the Stormwater Permit. These modifications were incorporated into the fiscal
year 2021-22 TMDL Annual Report, submitted in January 2023.
Despite the reporting modifications, Notices of Violation (NOVs) were issued to all 29 responsible
agencies for non-compliance with TMDL requirements of the fiscal year 2020-21 TMDL annual
reports submitted in January 2022.
Next Steps
San Diego Water Board staff has verbally indicated that the NOVs are technicalities and can
formally be converted to 'historical' status in the state's records. Staff will work to ensure that
the NOVs are formally converted as such.
Additionally, discussions are ongoing between the San Diego Water Board and the cities of
Carlsbad, Escondido and Vista and the County of San Diego, to be removed from the Tentative
Time Schedule Order (TSO) No. R9-2023-0006, An Order Requiring Designated Responsible
Permittees to Comply with Bacteria, Project I -Twenty Beaches and Creeks TMDL Requirements
Prescribed in the Regional Municipal Separate Storm Sewer Systems Permit for the San Diego
Region. None of these agencies are hydrologically discharging to the TMDL area of Moonlight
State Beach, so they cannot cause or contribute the water quality issues in that basin. Instead,
the Moonlight Beach drainage area is comprised of discharges entirely from the City of Encinitas.
However, until the City of Carlsbad is completely removed from the TSO and the TMDL permit,
the city will continue to comply with its obligations, including reporting requirements consistent
with the direction from the San Diego Water Board.
Attachment: A. Notice of Violation No. R9-2023-0202 dated December 15, 2023
cc: Scott Chadwick, City Manager
Cindie McMahon, City Attorney
Gina Herrera, Deputy City Attorney
James Wood, Environmental Sustainability Director
Tim Murphy, Senior Program Manager
IP
CALtFOIIMI.&
Water Boards
San Diego Regional Water Quality Control Board
December 15, 2023
Carlsbad Bacteria TMDL Responsible
Copermittees
Sent Via Email Only
In reply refer to/attn:
CW-794838:JTaylor
ATTACHMENT A
GAVIN NEWSOM
GOVt-AllOfl
N,~ YANA GARCIA l ~~ SE.CAETI\RY FOR ~ ENVIRONMENTAL PROTECTION
Subject: Notice of Violation No. RS-2023-0202 for Failure to Comply with the
Requirements Prescribed in Specific Provision 6 of Attachment E to Order No.
RS-2013-0001 , as Amended, for the Total Maximum Daily Load for Indicator
Bacteria, Project I -Twenty Beaches and Creeks in the San Diego Region (Bacteria
TMDL)
Carlsbad Bacteria TMDL Responsible Copermittees,
The California Regional Water Quality Control Board, San Diego Region (San Diego
Water Board) is issuing Notice of Violation (NOV) No. R9-2023-0202 to the Bacteria
TMDL Responsible Copermittees in the Carlsbad Watershed Management Area (WMA)
for failure to comply with National Pollutant Discharge Elimination System (NPDES)
Permit No. CAS0109266 and Waste Discharge Requirements for Discharges from the
Municipal Separate Storm Sewer Systems (MS4s) Draining th e Wa tersheds Within the
San Diego Region, Order No. R9 -2013-0001, as amended (Order).1 Th e Carlsbad
Bacteria TMDL Responsible Copermittees (Respon sible Copermittees) include the
County of Sa n Diego, and the cities of Carlsbad, Encinitas, Escondido, and San
Marcos.
1Order No. R9-2013-0001, as amended by Order Nos. R9-2015-0001 and R9-2015-0100, NPDES No.
CAS0109266, National Pollutant Discharge Elimination System (NPDES) Permit and Waste Discharge
Requirements for Discharges from the Municipal Separate Storm Sewer Systems (MS4s) Draining the
Watersheds within th e San Diego Region (Order), San Diego Water Board, adopted May 8, 2013,
available on the San Diego Water Board website at:
https://www.waterboards.ca.gov/sandiego/water issues/programs/stormwater/docs/2015-
1118 AmendedOrder R9-2013-0001 COMPLETE.pdf
CELESTE CANTO, CHAIR I DAVID GIBSON, EXECUTIVE OFFICER
2375 North side Drive, Suite 100, San Diego, CA 92108-2700 I www.waterboards.ca.gov/sandiego
Carlsbad Responsible Copermittees -
2
-December 15, 2023
Background
The Carlsbad WMA Copermittees submitted a Water Quality Improvement Plan (WQIP)
on June 26, 2015, and Jurisdictional Runoff Management Programs (JRMP) that are
implemented by the Carlsbad WMA Copermittees to achieve improved water quality in
MS4 discharges and receiving waters. The WQIP was accepted by the San Diego
Water Board Executive Officer on November 22, 2016. The WQIP was updated in 2018
and 2021. The 2021 WQIP update was accepted by the San Diego Water Board on
December 13, 2021. The Carlsbad WMA WQIP identifies Nutrients, Bacteria,
Hydromodification Impacts, and Riparian Habitat as the High Priority Water Quality
Conditions (HPWQCs) and Nutrients, Bacteria, Toxicity, Sediment, Hydromodification,
Trash, and Riparian Habitat as the Priority Water Quality Conditions (PWQCs). The
Carlsbad WMA Copermittees must implement the Carlsbad WMA WQIP to address
HPWQCs and PWQCs.
Summary of Alleged Violations
1. Fa ilure to Report Dry Weather Single Sample Maximum Exceedance
Frequencies
Pursuant to Specific Provision 6.d.(1 )(c)(i) of Attachment E to the Order: The
Responsible Copermittees must analyze the dry weather and wet weather monitoring
data to assess whether the interim and final WQBELs for the Pacific Ocean Shoreline
segments or areas listed in Table 6.0 have been achieved.
Observations :
The Responsible Copermittees failed to report the dry weather single sample
maximum exceedance frequencies for total coliform, fecal coliform, and Enterococcus
at station EH-420 in accordance with Specific Provision 6.d.(1 )(c)(i) of Attachment E to
the Order as part of the 2020-2021 WQIP Annual Report. Finding 1 from Attachment 1
of the San Diego Water Board's November 7, 2023 letter, Updated Clarification of
Requirements for Bacteria TMDL Compliance Assessments, identifies the following:
The 2020-2021 Bacteria TMDL Compliance Report did not include an
assessment of the dry weather SSM exceedance frequencies. The
Responsible Copermittees failed to report the dry weather SSM
exceedance frequencies for total coliform, fecal coliform, and
Enterococcus at station EH-420 in accordance with Specific Provision
6.d .(1 )(c)(i) in Attachment E to the Order.
2. Fai lure to Properly Calculate Dry Weather 30-day Geometric Mean Exceedance
Frequencies
Pursuant to Specific Provision 6.d.(1)(c)(ii)[d] of Attachment E to the Order: The
exceedance frequency must be calculated by dividing the number of 30-day geometric
means that exceed the 30-day geometric mean receiving water limitations in Table 6.2
by the total number of 30-day geometric means calculated from samples collected
during the dry season.
Carlsbad Responsible Copermittees -3 -December 15, 2023
Observations:
The Responsible Copermittees failed to properly calculate the 30-day geometric mean
exceedance frequencies for total coliform, fecal coliform, and Enterococcus at station
EH-420 in accordance with Provision 6.d.(1 )(c)(ii)[d] of Attachment E to the Order as
part of the 2020-2021 WQIP Annual Report. Finding 2 from Attachment 1 of the San
Diego Water Board's November 7, 2023 letter, Updated Clarification of Requirements
for Bacteria TMDL Compliance Assessments, identifies the following:
Section 3.1.2 of the 2020-2021 Bacteria TMDL Compliance Report
identifies th at dry weather samples collected between October 1, 2020,
and September 30, 2021, were used in the calculation for the 30-day
geometric mean exceedance frequ ency. Pursuant to Specific Provision
6.d.(1 )(c)(ii) the dry weather 30-day geometric mean exceedance
frequencies must be calculated for samples collected during the dry
season only (May 1, 2021, to September 30, 2021). The Responsible
Copermittees failed to properly calculate the 30-day geometric mean
exceedance frequencies for total coliform, fecal coliform, and
Enterococcus at station EH -420 in accordance with the requirements in
Specific Provision 6.d.(1)(c)(ii)[d] of Attachment E to the Order.
3. Fai lure to Report Wet Weather 30-day Geometric Mean Exceedance
Frequencies
Pursuant to Specific Provision 6.d.(1 )(c)(iii)[e] of Attachment E to the Order: The
data collected for dry weather must be used in addition to the data collected for wet
weather to calculate the wet weather 30-day geometric means. The exceedance
frequency of the wet weather 30-day geometric means must be calculated by dividing
the number of geometric means that exceed the geometric mean receiving water
limitations in Table 6.2 by the total number of geometric means calculated from
samples collected during the wet season.
Observations:
The Responsible Copermittees failed to report the wet weather 30-day geometric
mean exceedance frequencies for total coliform, fecal coliform, and Enterococcus at
station EH -420 in accordance with the requirements of Specific Provision
6.d.(1 )(c)(iii)[e] in Attachment E to the Order as part of the 2020-2021 WQIP Annual
Report. Finding 4 from Attachment 1 of the San Diego Water Board's November 7,
2023 letter, Updated Clarification of Requirements for Bacteria TMDL Compliance
Assessments, identifies the following:
The Responsible Copermittees failed to report the wet weather 30-day
geometric mean exceedance frequencies for total coliform, fecal coliform,
and Enterococcus at station EH-420 in accordance with the requirements
in Specific Provision 6.d.(1 )(c)(iii)[e] of Attachment E to the Order. The
2020-2021 Bacteria TMDL Compliance Report does not include an
assessment of the wet weather 30-day geometric mean exceedance
frequencies for total coliform, fecal coliform, and Enterococcus at station
Carlsbad Responsible Copermittees -4 -December 15, 2023
EH-420 as required. Table 2 of this attachment identifies there were a total
of 31 samples (7 wet weather samples and 24 dry weather samples
collected in the wet season) available to calculate 30-day geometric mean
exceedance frequencies during the wet season.
Summary of Potential Enforcement Options
The violations alleged above may subject the Responsible Copermittees to additional
enforcement by the San Diego Water Board or State Water Resources Control Board,
including a potential civil liability assessment of $10,000 per day of violation (Water
Code section 13385) and/or any of the following enforcement actions:
Other Potential Enforcement Options Applicable Water Code
Technical or Investigative Order Sections 13267 or 13383
Cleanup and Abatement Order Section 13304
Cease and Desist Order Sections 13301-13303
Time Schedule Order Sections 13300, 13308
In addition, the San Diego Water Board may consider revising or rescinding applicable
waste discharge requirements, if any, referring the matter to other resource agencies,
referring the matter to the State Attorney General for injunctive relief, and referral to
the municipal or District Attorney for criminal prosecution.
The San Diego Water Board reserves the right to take any enforcement action
authorized by law. In making the determination of whether and how to proceed with
further enforcement action, the San Diego Water Board will consider the severity and
effect of the violation, the level of cooperation, the time it takes to correct the identified
violations, and the sufficiency of the corrections.
The written correspondence should be submitted to SanDiego@waterboards.ca .gov
with the following signed certification statement. All reports submitted to the San Diego
Water Board required by this Order, must be signed by the duly authorized
representative for the Discharger and must include the following statement:
I certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and evaluate
the information submitted. Based on my inquiry of the person or persons
who manage the system, or those persons directly responsible for gathering
the information, the information submitted is, to the best of my knowledge
and belief, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the possibility
of fine and imprisonment for known violations.
Carlsbad Responsible Copermittees -5 -December 15, 2023
Each electronic document must be submitted as a single file, in Portable Document
Format (PDF) format, and converted to text searchable format using Optical Character
Recognition (OCR). All electronic documents must include scanned copies of all
signature pages or other acceptable electronic signature format. Electronic documents
submitted to the San Diego Water Board must include the following identification
numbers in the header or subject line: PIN: 794838:JTaylor.
For questions pertaining to the subject matter, please contact Jessica Taylor at (619)
521-5893 or Jessica.Taylor@waterboards.ca .gov.
Respectfully,
Kelly Dorsey Digitally signed by Kelly Dorsey
Date: 2023.12.15 13:49:56 -08'00'
' '
Kelly Dorsey, PG
Assistant Executive Officer
San Diego Water Board
cc:
City of Carlsbad
City of Encinitas
City of Escondido
City of San Marcos
County of San Diego