Our History
The 1987 Amendments to the Clean Water Act included Section 402(p), adding discharges from Municipal Separate Storm Sewer Systems (MS4s, or storm drains) to those regulated under the Act. Around the same time, California began referencing stormwater runoff as a source of pollutants to be controlled under the Porter-Cologne Water Quality Act. The California Water Quality Control Board for the San Francisco Bay Region (RWQCB) began issuing municipal stormwater NPDES permits in 1989.
Anticipating that they would soon be issued such permits, and with the encouragement of the RWQCB, Contra Costa municipalities established the Contra Costa Clean Water Program (CCCWP) in 1991.Two years later, the first permit was issued jointly to the Contra Costa municipalities within the San Francisco Bay Region—the cities of Clayton, Concord, El Cerrito, Hercules, Lafayette, Martinez, Orinda, Pinole, Pittsburg, Pleasant Hill, San Pablo, San Ramon and Walnut Creek, the towns of Danville and Moraga, and the western portion of Contra Costa County. The cities of Brentwood and Antioch joined in implementing permit activities, anticipating they too would soon be issued a similar permit by the California Water Quality Control Board for the Central Valley Region.
In 1987, amendments to the Federal Water Pollution Control Act, also referred to as the Clean Water Act, expanded the existing National Pollutant Discharge Elimination System (NPDES) permit program[2] to begin regulating, among other things, discharges from storm drains owned and operated by municipalities. In November 1990, USEPA published regulations that established application requirements for stormwater permits for municipal stormwater discharges.
The Permittees operate under a “Program Agreement”, which was first entered into in 1991 and has been updated several times since. The roles and responsibilities of CCCWP staff and the 21 Permittees are outlined in the Program Agreement, which was last updated in 2010.
Funding Shortfalls
Municipalities’ authority to raise taxes or fees to pay for governmental activities has been sharply constrained by voter initiatives. Each Contra Costa municipalities’ stormwater assessment has a maximum limit authorized in 1993; all municipalities that have assessments reached that limit in 2009, when the MRP was issued by the San Francisco Bay Water Board.
Also since 1993, each successive NPDES permit has added additional and more stringent requirements that are more expensive to implement. A 2011 study showed that, for most Contra Costa municipalities, the costs of implementing the current NPDES permits will considerably exceed available revenues. Most municipalities are unable to shift General Fund revenues to pay for stormwater pollution prevention, as those limited funds may be inadequate, now or in the future, to pay for services such as police and fire protection.
Consequences of Non-Compliance
The Water Boards derive their authority from the California Water Code and the Federal Clean Water Act. Those laws provide for substantial fines for non-compliance. The Water Boards have audited the municipalities’ local programs and have issued notices of violation for failure to implement the permit in the manner specified.
Under provisions of the Clean Water Act, Permittees can be the subject of lawsuits brought by third parties. Lawsuits by advocacy organizations have been resolved by court orders that have included additional requirements and schedules for compliance and have required municipalities to also pay litigation costs for both sides. Costs for some California municipalities have totaled in the millions of dollars. For example, under a 2012 settlement, the City of Malibu agreed to implement $5.6 million in retrofits to its storm drain system, pay $750,000 in legal fees, and allocate $250,000 toward additional monitoring of receiving waters. The settlement came shortly after the City completed a state-of-the art stormwater treatment facility, Malibu Legacy Park, at cost of $50 million.
Most permit-mandated activities—but not all—help improve the local environment and residents’ quality of life. They also further the multi-decadal effort to restore the San Francisco Bay/Delta Estuary and its tributaries. The municipalities’ ability to prevent stormwater pollution is fiscally constrained to a degree that is slowing progress toward these goals.
Coordination with the Water Boards
The staff of the Water Boards and Water Board members alike is aware that funding constraints make it impossible for the municipal Permittees to implement all the requirements of their current NPDES permits. Based on 20 years of experience implementing their municipal stormwater pollution-prevention programs, municipal staff have proposed to prioritize actions that have proven most beneficial to water quality and have asked that permit requirements that are less beneficial be eliminated or reduced. However, the Permittees ultimately have no authority over permit conditions, and cannot guarantee that permit conditions are reasonable or implementable or that the prescribed actions are effective or worthwhile. Those decisions rest entirely with the Water Boards, which generally approve the recommendations of their staff.
Efforts to Secure Additional Funding
In 2012, the Contra Costa County Flood Control and Water Conservation District, acting on behalf of the CCCWP and the municipalities, sponsored a mail-in ballot initiative. The initiative would have added an additional fee to property tax bills to fund the rising costs of stormwater pollution prevention programs and NPDES permit compliance. The initiative required approval by 50% of responding property owners. It did not succeed.
In the absence of new revenues for stormwater pollution prevention, Contra Costa municipalities are exploring ways to improve cost recovery or to assign costs for controlling certain pollutant sources that originate on private property. They are also seeking community partners for trash cleanup, and aim to integrate stormwater treatment retrofits into some future transportation projects. The success of these innovative efforts, and whether they will enable municipalities to maintain compliance, remains to be seen.
Summary
Contra Costa municipalities stretch available money and resources to provide municipal services. These services include public safety, flood protection, libraries, and parks. The municipalities are also committed to preventing stormwater pollution, protecting local waterways, and preserving local environmental quality. They balance this commitment with a parallel commitment to comply with Water Board Orders where the means exist to do so. However, revenues for stormwater quality protection have been level since 2009—while compliance costs continue to increase.
[1] Cities of Antioch, Clayton, Concord, El Cerrito, Hercules, Lafayette, Martinez, Oakley, Orinda, Pinole, Pittsburg, Pleasant Hill, San Pablo, San Ramon and Walnut Creek, and the towns of Danville and Moraga.
[2] In 1972, provisions of the Federal Water Pollution Control Act were amended so that discharge of pollutants to waters of the United States from any point source is effectively prohibited, unless the discharge is in compliance with a National Pollutant Discharge Elimination System (NPDES) permit.