DATE: June 12, 2018
SUBJECT:
Title
PRESENTATION ON THE 2017 COPPER LOAD REDUCTION EFFORTS RELATED TO THE SHELTER ISLAND YACHT BASIN TOTAL MAXIMUM DAILY LOAD
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EXECUTIVE SUMMARY:
In 2005, the San Diego Regional Water Quality Control Board (Regional Board) set a Dissolved Copper Total Maximum Daily Load (TMDL) for the Shelter Island Yacht Basin (SIYB). The TMDL required a 76 percent reduction of copper loading by 2022, with interim loading targets of 10 percent and 40 percent (compliance phases) by 2012 and 2017, respectively. The TMDL named the District, the City of San Diego, the SIYB marinas and yacht clubs, hull cleaners, and the recreational boaters themselves, as parties responsible for reducing their copper pollution loads. On March 11, 2011, the Regional Board issued Investigative Order No. R9-2011-0036 to the District. The Investigative Order required that the District annually assess TMDL implementation progress and provide written compliance reports (herein referred to as Progress Reports) to document the actions taken to comply with the TMDL.
The 2017 Progress Report marks the final year of the second interim compliance phase, which required a reduction in copper loading by 40%. Not only was the 2017 interim loading target achieved, but it had surpassed the interim requirement. Vessel tracking indicated that there had been an estimated 45.4 percent (approximately 952.7 kg/yr) reduction in copper loading when compared with the TMDL baseline of 2100 kg/yr. Meeting both the first and second interim compliance phases reflects the continued success of efforts related to identifying load reductions from hull paint conversions, Best Management Practices (BMPs), and other activities implemented through the Copper Reduction Program.
Water quality testing showed the basin average to be 7.9 µg/L, an approximately 5 percent decrease from the baseline average of 8.3 µg/L. Among other things, it also concluded that the basin water quality has been relatively consistent over the past four years.
There have been considerable Copper Reduction Program successes over the course of the five-year 2nd interim compliance phase (2013-2017). Two alternative copper reduction technologies received Board-authorized agreements through the District’s Blue Economy program, hull paint transitions were completed through a State-awarded 319(h) grant, significant changes in policy have occurred at the state level, and special studies have allowed for improved understanding of basin water quality conditions. Additionally, education and outreach continues to be a critical program component.
The final TMDL phase began January 1, 2018. The recently adopted DPR leach rate rule (DPR Rule) and other continued BMPs and outreach measures will likely assist in copper reductions; however, there will still need to be additional initiatives to fully achieve the required 76% loading reduction by 2022. Staff is meeting with the Regional Board on May 24, 2018, for guidance on the final compliance phase of the SIYB TMDL. Based on findings, staff will explore potential policy and program implementation needs based on the discussion with the Regional Board.
RECOMMENDATION:
Recommendation
Receive presentation from staff regarding results of the Shelter Island Yacht Basin TMDL and efforts to reduce copper in the bay.
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FISCAL IMPACT:
This item is for presentation purposes only and has no fiscal impact.
Compass Strategic Goals:
This agenda item supports the District’s strategic goals by seeking copper reductions throughout San Diego Bay and working to improve water quality, with an emphasis on SIYB.
This agenda item supports the following Strategic Goal(s).
• A Port that the public understands and trusts.
• A Port with a healthy and sustainable bay and its environment.
DISCUSSION:
Regulatory Background
In 1996, high concentrations of copper in the water of SIYB prompted the Regional Board to add SIYB to the state’s Clean Water Act Section 303(d) List of Water Quality Limited Segments. The Regional Board found that copper concentrations in SIYB ranged from three to eight micrograms per liter (µg/L), thereby exceeding the water quality objective of 3.1 µg/L.
In 2005, the Regional Board set a TMDL1 for the basin, requiring a 76 percent reduction of copper loading by 2022, with interim compliance phases requiring loading reduction targets of 10 percent and 40 percent by 2012 and 2017, respectively. The TMDL named the District, the City of San Diego, the SIYB marinas and yacht clubs, hull cleaners and the recreational boaters themselves as parties responsible for reducing copper pollution loads. Passive leaching of copper from boat hulls and in-water hull cleaning were identified as sources of copper in SIYB.
In March 2011, the Regional Board issued Investigative Order No. R9-2011-0036 to the District. This Investigative Order outlined the SIYB TMDL annual reporting requirements and required the development of monitoring and best management practice (BMP) implementation plans to guide activities over the course of the TMDL. The Investigative Order also required that the District annually assess TMDL implementation progress and provide a written Progress Report to document the actions taken to comply with the TMDL.
Staff has been implementing a multi-faceted copper reduction program (Program) to achieve the TMDL’s load reductions and reduce copper throughout the Bay. The Program focuses on the largest source contributions and identifies a strategic approach to effectively achieve regulatory compliance, while balancing economic and public interests. It is comprised of five elements, as follows:
1. Testing and Research
2. Hull Paint Transition
3. Education and Outreach
4. Policy Development / Legislation
5. Monitoring and Data Assessment
Staff is currently working on several key projects and tasks to execute the multiple elements of the Program. These efforts are summarized annually in the aforementioned Progress Reports. This Board update is intended to discuss the 2017 TMDL findings, as well as summarize the Program’s progress during the 2nd interim compliance phase, and discuss the next steps as the TMDL now moves into in its final five-year compliance phase as of January 1, 2018.
SIYB TMDL - 2017 Findings
The 2017 Progress Report discusses BMP implementation in SIYB and San Diego Bay, and provides information on vessel conversions along with water quality and toxicity monitoring results (Attachment A). Several activities were implemented during 2017, including education and outreach, coordination with state agencies, and continued efforts with permitting and inspecting in-water hull cleaning activities. The District also continued to attempt to work collaboratively with the Shelter Island Master Leaseholders to track vessels and report on hull paint use within the basin.
Continued efforts pertaining to accurate data collection resulted in new protocols for the 2017 reporting period. In December 2017, notification letters were sent to each marina discussing the TMDL status, summarizing their 2016 reporting efforts, and requesting a signed self-certification statement verifying the validity of their 2017 data submission. Summaries of the 2017 water quality and vessel tracking results are provided herein.
Copper Load Estimates
The annual copper loading reduction for 2017 was 45.4%. This reduction surpasses the required interim compliance phase requirement of 40%. Additionally, loading continues to trend downward.
Annual dissolved copper loading reduction was assessed by tracking conversions of hull paints from copper to non-copper, DPR Category I (low leach paints), or low-copper (i.e., less than 40 percent copper) products, and aged copper paints on vessels moored in SIYB and comparing the current loading of 952.7 kg/yr to the SIYB TMDL-assumed baseline loading of 2,100 kg/yr.
This year marks the third year that the 40% loading reduction target was met. As such, the program, with continued implementation, appears on track to continue with load reductions moving into the final compliance phase. Success in meeting interim loading targets, as well as continued decreases in loading annually, can be attributed to the continued efforts in areas such as vessel tracking, voluntary hull paint transitions to low copper or non-copper paints and BMP implementations. Additionally, staff and stakeholders continue to tighten the tracking of vessels, which has revealed an increase in boaters choosing Category 1, low-leach copper paints.
Water Quality- Dissolved Copper Concentrations
Results from the 2017 monitoring event showed that the average dissolved copper level in the basin’s surface waters was 7.9 microgram(s) per liter (µg/L). This was approximately 5 percent lower than the baseline average (8.3 µg/L). The result is also similar to the basin-wide average observed in 2016 (7.1 µg/L), 2015 (6.9 µg/L) and 2014 (7.0 µg/L). Five of the six SIYB sampling stations exceeded the California Toxics Rule (CTR) criterion continuous concentrations (CCC) water quality objective of 3.1 µg/L; while four of the six stations exceeded the CTR acute criterion maximum concentration (CMC) of 4.8 µg/L.
Water Quality- Toxicity
The 2017 monitoring program also found that two stations (SIYB-1 and SIYB-2, the stations farthest inside the basin) had statistically significant toxic effects on the development of mussel larvae. However, no toxicity was observed in the fish larvae survival tests. Over the course of TMDL monitoring, chronic toxicity has been observed at these same two stations, only when dissolved copper concentrations have exceeded 10 µg/L.
Special Tidal Phase Study
A Time Series Study was approved in October 2017 and performed in January 2018 to evaluate the potential influence of tides on dissolved copper concentrations in surface waters of SIYB. The Time Series Study determined that tides may influence dissolved copper concentrations to a greater extent at locations that are closer to the mouth of the basin. When Time Series Study results by tidal phase were compared to the average concentrations observed at the nearest TMDL stations, similar ranges of variability were observed during the high tide phase of the Time Series Study, and less variability was associated with the low tide phase (Attachment B).
Second Interim Compliance Phase Milestones
The 2nd interim compliance phase (2013-2017) had several considerable successes between 2013 and 2017 in each area of the Program. These include:
• Testing and Research: The approval of two alternative copper reduction technologies, Rentunder and Red Lion, both received Board-authorized agreements through the District’s Blue Economy program and are preparing to start this summer (2018).
• Hull Paint Transition: The 319(h) Grant was awarded to the District by the State Water Quality Control Board through a competitive application process. During the Second Interim Compliance Phase, this grant was implemented and completed. At its’ conclusion in 2015, a total of forty-one recreational vessels were converted to non-copper hull paint. These voluntary conversions resulted in 36.9 kg/yr loading reduction into SIYB.
• Education and Outreach: Efforts continued via outlets including special events, web material, and print material available to the boating community.
• Policy Development/Legislation: Significant changes in policy have occurred at the state level, which started with the District sponsored Bill AB425 in 2013 and will be culminating July 1, 2018 with the onset of a new statewide regulation setting a maximum copper leach rate for hull paints. This progress is described in further detail below in the Additional Commentary section.
• Monitoring and Data Assessment: Annual TMDL monitoring, as well as three additional special studies were conducted during this time period. The additional efforts included a culvert hydrology analysis, an enhanced water column study, and a time series study evaluating tidal influence; where all resulted in improved overall scientific understanding of basin water quality conditions.
Additional Commentary Regarding Regulatory Progress at the State Level
Part of the Program’s strategic approach has been to encourage statewide changes for copper paint use. As a result of the District-sponsored AB425 legislation passed in 2013, DPR has been working to formally establish the leach rates set forth from AB425.
a milestone was achieved in November 2016 when DPR published for public review, an Initial Statement of Reasons establishing the intent to adopt a new rule for copper antifouling paint leach rates. The DPR Rule set forth a maximum allowable copper leach rate of ≤9.5 µg/cm2/day for copper antifouling paint products registered in California for use on recreational vessels. In addition, the DPR Rule proposed to cancel the registration for all products exceeding the leach rate. In 2017, the DPR Rule was formally adopted (Attachment C) and becomes effective July 1, 2018. When this rule goes into effect, only products lower than 9.5 µg/cm2/day leach rate will be available. This will apply to all recreational vessels in the SIYB and San Diego Bay. Based upon the current vessel paint statistics from the 2017 reporting period, an initial assessment (presented in the Progress Report) estimated that the DPR Rule could potentially achieve a 61% load reduction, leaving the need for an additional reduction of 15% copper loading in SIYB to achieve TMDL compliance. Moreover, a substantial portion of this reduction could be achievable within 3-5 years when considering the normal life of a copper paint and the need for repainting with available products.
Next Steps
The Progress made during the 2nd interim compliance phase demonstrates that copper reduction efforts are having a positive impact on decreasing the copper loads. When put into effect on July 1, 2018, the DPR Rule is likely to lower the copper loads into SIYB and other marina basins in the Bay, and results should be evident over the next 3-5 year period. As such, it will be critical to monitor and understand how the load reductions and water quality change as a result of this statewide mandate.
For continued measurable water quality improvements to be realized (i.e., reductions in basin-wide dissolved copper levels), it is anticipated that while the DPR Rule will help get closer to the compliance goal, additional reductions in copper loading will be necessary.
The next key step is meeting with the Regional Board in order to receive and understand clear compliance expectations of the TMDL. Once understood, the Regional Board’s expectations will determine how staff designs implementation activities over the final five year compliance phase (2018-2022). Staff is scheduled to meet with Regional Board staff on May 24, 2018. Once the expectations of the Regional Board are clearly understood, staff will update the Board with the information learned. Implementation activities will focus on mitigating the delta between what the DPR Rule will likely achieve (61% loading reduction) and the final TMDL target of a 76% loading reduction. Working with stakeholders and the Regional Board will be an important part of developing implementation activities.
General Counsel’s Comments:
The Office of the General Counsel reviewed this agenda as to form and legality.
Environmental Review:
This informational presentation to the Board by staff regarding the 2017 progress report on copper load reduction efforts related to the Shelter Island Yacht Basin Total Maximum Daily Load does not constitute an “approval” or a “project” under the definitions set forth in California Environmental Quality Act (CEQA) Guidelines Sections 15352 and 15378 because no direct or indirect changes to the physical environment would occur. CEQA requires that the District adequately assess the environmental impacts of projects and reasonably foreseeable activities that may result from projects prior to the approval of the same. Any project developed as a result of Board’s action or direction that requires the District or the Board’s discretionary approval resulting in a physical change to the environment will be analyzed in accordance with CEQA prior to such approval. CEQA review may result in the District, in its sole and absolute discretion, requiring implementation of mitigation measures, adopting an alternative, including without limitation, a “no project alternative” or adopting a Statement of Overriding Consideration, if required. The current Board direction in no way limits the exercise of this discretion. Therefore, no further CEQA review is required.
In addition, this Board item complies with Section 87 of the Port Act, which allows for the establishment and maintenance of those lands for open space, ecological preservation and habitat restoration. The Port Act was enacted by the California Legislature and is consistent with the Public Trust Doctrine. Consequently, the proposed Board action is consistent with the Public Trust Doctrine.
This informational presentation does not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit (CDP) Regulations because they will not result in, without limitation, a physical change, change in use or increase the intensity of uses. Therefore, issuance of a Coastal Development Permit or exclusion is not required. However, development within the District requires processing under the District’s CDP Regulations. Future development, as defined in Section 30106 of the Coastal Act, will remain subject to its own independent review pursuant to the District’s certified CDP Regulations, PMP, and Chapters 3 and 8 of the Coastal Act. The Board’s direction or action in no way limits the exercise of the District’s discretion under the District’s CDP Regulations. Therefore, issuance of a CDP or exclusion is not required at this time.
Equal Opportunity Program:
Not applicable.
PREPARED BY:
Kelly Tait
Senior Environmental Specialist, Environmental Protection
Attachment(s):
Attachment A: Executive Summary of the 2017 Shelter Island Yacht Basin Dissolved Copper Total Maximum Daily Load Monitoring and Progress Report
Attachment B: 2018 Time Series Study- Map of sampling sites and testing results
Attachment C: Department of Pesticide Regulation Final Text of Regulation: Title 3 California Code of Regulations (CCR) section 6190 Rule 16-005
Rule
1. SIYB TMDL Technical Report, 2005 http://www.waterboards.ca.gov/sandiego/water_issues/programs/watershed/docs/swu/shelter_island/techrpt020905.pdf