Conditional Waivers of Waste Discharge Requirements for Low Threat Discharges
CONDITIONAL WAIVERS BACKGROUND
The Water Code defines “waste” as “sewage and any and all other waste substances, liquid, solid, gaseous, or radioactive, associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation, including waste placed within containers of whatever nature prior to, and for purposes of disposal.”
“Discharge of waste” occurs whenever a waste is placed upon the ground or enters any “waters of the State.” The Water Code defines “waters of the State” as “any surface water or groundwater, including saline water, within the boundaries of the State.”
Water Code section 13264(a) states that “no person shall initiate any new discharge of waste...prior to the filing of the reports required by section 13260 and no person shall take any of these actions after filing the report but before whichever of the following occurs first:
- The issuance of waste discharge requirements pursuant to section 13263.
- The expiration of 140 days after compliance with section 13260 if the waste to be discharged does not create or threaten to create a condition of pollution or nuisance.
- The issuance of a waiver pursuant to section 13269.”
Water Code section 13260(a)(1) requires that any person (including any city, county, district, State, and the United States to the extent authorized by Federal law) discharging, or proposing to discharge, wastes within any region that could affect the quality of waters of the State, other than into a community sewer system, must file a ROWD with the appropriate California Regional Water Quality Control Board (Regional Water Board).
Water Code section 13263(a) requires that each Regional Water Board prescribe discharge requirements for any existing or proposed waste discharges within its area of jurisdiction, except discharges into a community sewer system. The Regional Water Board is authorized to prescribe waste discharge requirements even if no ROWD has been filed.
Finally, Water Code section 13269 gives each Regional Water Board the authority to conditionally waive the provisions of sections 13260(a)(1), 13263(a), and 13264(a) for a specific discharge or type of discharge. In order to do so, a Regional Water Board must determine that a waiver for a specific discharge or type of discharge is consistent with the Basin Plan and is not against the public interest.
Because the resources available to the San Diego Water Board are significantly less than those needed to regulate all possible waste discharges in the Region, focusing staff resources on discharges according to their potential threat to water quality is necessary. Most types of discharge that have a higher threat to water quality are typically point sources. Discharges from point sources are readily amenable to regulation and shown to be effectively regulated through the adoption of general or individual WDRs.
However, there are several types of point source, as well as nonpoint source discharges that may not have an adverse affect on the quality of the waters of the State, and/or are not readily amenable to regulation through WDRs. For these types of discharges, issuing a conditional waiver may be appropriate. The types of discharges which may be eligible for a waiver only include discharges to land and groundwater, and discharges to surface waters that are not otherwise subject to National Pollutant Discharge Elimination System (NPDES) regulations. NPDES regulations are Federal requirements and the State does not have the legal authority to waive NPDES regulations.
The San Diego Water Board developed and formally issued conditional waivers for specific types of discharge in the San Diego Region with a resolution adopted in 1983. The conditional waivers were incorporated into the Basin Plan in 1994 to centralize the information in one location for the public.
Water Code sections 13269 (pertaining to waivers) and 13350 (pertaining to civil liability) were amended in 1999. The amendments to section 13269 require the San Diego Water Board to do the following:
- For waivers in effect on January 1, 2000, review the terms, conditions and effectiveness of each waiver issued;
- Renew waivers for specific discharges or types of discharge by January 1, 2003 (failure to renew a waiver automatically results in termination of the waiver);
- Determine if general or individual WDRs should be issued for ongoing discharges where waivers have been terminated;
- Establish waiver conditions;
- Enforce waiver conditions; and
- Renew each waiver every five years (or each waiver will expire automatically).
The amendments to section 13350 specify that any person that discharges waste in violation of a waiver condition shall be liable civilly and remedies may be proposed, in accordance with Water Code section 13350(d) or (e). Therefore, waiver conditions are enforceable.
Waivers must be consistent with the Basin Plan and in the public interest. The consistency requirement means that a waiver cannot permit dischargers to violate water quality objectives or Basin Plan prohibitions. In order for the waivers to be consistent with the Basin Plan, the following general overall conditions apply to each specific type of discharge for which a waiver of WDRs and/or the requirement to file ROWDs may be issued:
- The discharge shall not create a nuisance or pollution as defined in the Water Code;
- The discharge shall not cause a violation of any applicable water quality standard for receiving waters adopted by the San Diego Water Board, or the State Water Resources Control Board (State Water Board), as required by the Clean Water Act; and
- The discharge of any substance in concentrations toxic to animal or plant life is prohibited.
In addition to the general overall conditions listed above, issuing conditional waivers would not be against the public interest under one or more of the following circumstances:
- The type of discharge is effectively regulated by other public agencies; or
- The type of discharge does not adversely affect the quality or the beneficial uses of the waters of the State; or
- The type of discharge is not readily amenable to regulation through adoption of WDRs, but warrants San Diego Water Board oversight to ensure compliance with the mandated conditions (e.g., Basin Plan water quality objectives).