CEASE AND DESIST ORDER NO. R3-2005-0022, CITY OF CARMEL BY THE SEA, MONTEREY COUNTY

 
Carmel Bay Area of Special Biological Significance (ASBS) 

UPDATE: According to Chris Adair, Senior Water Resource Control Engineer, Central Coast Regional Water Quality Control Board, CEASE AND DESIST ORDER NO. R3-2005-0022, CITY OF CARMEL BY THE SEA, MONTEREY COUNTY, although drafted and on the Water Board’s February 2005 agenda, was never issued; “We feel that the work being done between Carmel-by-the-sea (Carmel) and the State Water Board to resolve the ASBS discharge issues meets the intent of the proposed CDO. Until such time as the issues are satisfactorily resolved, the members of the Monterey Regional storm water group (including Carmel) which discharge to the ASBS are required to comply with Attachment 4 of the Phase 2 Stormwater Permit. For more information on Attachment 4, go to the State Board website at www.waterboards.ca.gov and click on Water Quality/Stormwater/Phase 2 or check the EPA website.”

GLOSSARY OF TERMS:

Area of Special Biological Significance (ASBS): “those areas designated by the State Water Resources Control Board requiring protection of species or biological communities to the extent that alteration of natural water quality is undesirable.” Ex. Carmel Bay ASBS (ASBS No. 34)

California Ocean Plan (Ocean Plan): Adopted by the State Water Resources Control Board (State Board) and approved by the U.S. Environmental Protection Agency (U.S. EPA), lists 34 coastal marine waters which the State Board has designated as Areas of Special Biological Significance (ASBS).
To be in compliance with the Ocean Plan, the city must either: 1) redesign or redirect the storm drain system so that no runoff enters in or near the Carmel Bay ASBS; or 2) apply for an exception to the ASBS discharge prohibition.

Ocean P1an, Section III.E.1.: “Waste shall not be discharged to areas designated as being of special biological significance. Discharges shall be located a sufficient distance from such designated areas to assure maintenance of natural water quality conditions in these areas.”

The Ocean Plan, Section III.I.1: Allows the State Board to grant exceptions to this prohibition, provided that the exception "will not compromise protection of ocean waters for beneficial uses, and, [t]he public interest will be served."

State Water Resources Control Board: The branch of State government responsible for protection of water quality, and which develops and implements policies for this purpose. The SWRCB developed the General Permit for use by entities that must be permitted under the Phase II storm water regulations.

Stormwater: Precipitation that does not infiltrate into the soil including material dissolved or suspended in it.

Sources: http://www.waterboards.ca.gov/plnspols/docs/asbs/dischargers/carmelbyseapw_101804.pdf
http://www.waterboards.ca.gov/rwqcb3/Permits/documents/FinalMRSWMPwithallchangesaccepted4-8-05.pdf


BRIEF ABBREVIATED CHRONOLOGY:

March 21, 1974: State Water Resources Control Board, in Resolution Number 74-28, designated 31 Areas of Special Biological Significance (ASBS.) Later, the State Board designated 3 additional ASBS, including the Carmel Bay ASBS (ASBS Number 34), for a total of 34.

2001: The Ocean Plan (Resolution Number 2000-108) states: “Waste shall not be discharged to areas designated as being of special biological significance. Discharges shall be located a sufficient distance from such designated areas to assure maintenance of natural water quality conditions in these areas.”

October 18, 2004: The State Board issued 2 “Prohibition of Waste Discharges into the Area of Special Biological Significance” letters to the Pebble Beach Company and the City of Carmel by the Sea.
“The Prohibition letters explained that storm water discharge from each municipality violates the ASBS discharge prohibition in Section III.E.1 of the Ocean Plan. The Prohibition letters required the discharger to notify the State Board by January 1, 2005, as to whether the discharger intends to apply for an exception to the ASBS-prohibition.”

February 2005: The MRSWMP (Monterey Regional Storm Water Management Program) and the CDOs (Cease and Desist Orders) were postponed from the February 2005 Water Board hearing in response to multiple motions being filed the week prior to the February hearing. The motions were filed by Latham and Watkins, LLP, representing the Pebble Beach Company and the City of Carmel-by-the-Sea, and by the Natural Resources Defense Council (NRDC).

Documents submitted by the two groups included:
1. Oppositions to the Monterey Regional Storm Water Management Program and the Cease and Desist Orders;
2. Motions for continuance;
3. Procedural objections, including objections to Designated Party status for any non-permittee;
4. Subpoenas;
5. Requests for Designated Party status from the Dischargers, environmental groups, several Farm Bureaus, and several golf associations; and
6. Requests for more time for preparation and document review by all parties.

March 22, 2005: The City of Carmel-by-the-Sea submitted a “Small MS4 Permit Waiver Letter for Carmel-by-the-Sea,” which outlined their arguments for not needing Storm Water Permit coverage.

April 14, 2005: Water Board staff issued a response letter informing the City of Carmel-by-the-Sea of steps they would need to take to formally apply for an exception to the Phase II General Permit or an individual NPDES permit.

May 2005: The Water Board staff has withdrawn the Cease and Desist Orders for prohibited ASBS-discharges, pending further consideration.

September 12, 2006: At the City Council meeting, the City Council unanimously approved a Resolution authorizing payment of $125,000 now (and another $125,000, for a total of $250,000, to be paid in FY 2007/08) to the Pebble Beach Company for legal costs associated with CEASE AND DESIST ORDER NO. R3-2005-0022, CITY OF CARMEL BY THE SEA, MONTEREY COUNTY. In the Agenda Item Summary, City Administrator Rich Guillen stated “After nearly 6 months of legal meetings with staff and the WQCB (State Water Quality Control Board) including several State public hearings the total legal costs to the City was $250,000.” And he stated “Legal representation delayed the CDO and provided an opportunity for the three impacted cities and PBC to continue to dialogue with the WQCB to find a workable solution to protect ASBS. The effort is ongoing with another hearing scheduled in September 2006.”

Note: California Environmental Protection Agency, State Water Resources Control Board meeting, September 21, 2006. (http://www.waterboards.ca.gov/wksmtgs/pastagn06.html)

(Source: http://www.waterboards.ca.gov/rwqcb3/Permits/documents/Item4staffrpt.pdf)


For additional perspective,
Monterey County Weekly

Squid
Sep 28, 2006

MONEY FOR NOTHING...

http://www.montereycountyweekly.com/issues/Issue.09-28-2006/opinion/Article.squid_fry