A Presentation by Mark Grey, Ph.D Susan Paulsen, Ph.D, P.E. David Sunding, Ph.D June 4, 2008

1. California Building Industry Association (CBIA)Concerns and Proposed Solutions on the Draft Construction General Permit A Presentation by Mark Grey, Ph.D Susan Paulsen, Ph.D, P.E. David Sunding, Ph.D June 4, 2008

2. CBIA’s Focus in Commenting on the Draft Construction Permit • Create a Workable Permit • Use Technically Sound Approaches & Processes • Risk Assessment • Monitoring and Reporting • Post-Construction Runoff Control • Use NALs as Performance Measures • Consider Economic Impacts

3. CBIA’s Major Concerns • Risk approach factors and use of risk calculator too complex and weighted in favor of high risk • CBIA supportive of using NALs, but approach is untested and needs a focused data collection effort • NELs are not technically supported • Uncertainty created by authorities given to Regional Boards and Public and by pushing projects out of the General Permit • Economic impacts considered simplistically and uncritically, if at all

4. Overall Comments - Preliminary Draft May 2007 • CBIA supports SWRCB goal of improving the permit to improve water quality • Needpermit framework that “Raises the Bar” across the State for all sites, but recognizes different site and receiving water conditions • BMPs work and many projects are implementing effective programs • Comprehensive design, inspection / auditing and enforcement are key to making erosion and sediment controls more effective • Fundamental lack of data to support permit requirements

5. Numerics and Performance • NELs are technically unsupported • Support NALs but recommend approach modification • Conduct focused data collection and analysis effort • Use a “bridge” approach to better understand numeric measures and performance

6. CBIA’s Major Concerns • Risk approach factors and use of risk calculator too complex and weighted in favor of high risk • CBIA supportive of using NALs, but approach is untested and needs a focused data collection effort • NELs are not technically supported • Uncertainty created by authorities given to Regional Boards and Public and by pushing projects out of the General Permit • Economic impacts considered simplistically and uncritically, if at all

7. CBIA asks the Board to Consider • Making the risk calculator simpler and less biased in favor of classifying sites as high risk • Establishing a “bridge” approach to using numerics by removing the NELs and using this permit term to collect data • Removing post-construction components from this permit and inserting them into statewide requirements for municipal systems • Performing a sophisticated economic analysis • Continuing to keep the General Permit as an inclusive permit and establishing limitations on discretion

8. Technical Analysis

9. Technical Analysis • Permit should be pro-active, emphasizing enhanced planning, inspection, maintenance of BMPs to minimize sediment and pollutant transport into storm water • Major issues • Risk approach • ALs/NELs • Post-construction requirements • Monitoring and reporting

10. Risk Approach • Proposed approach is extremely complex • CBIA conducted a Builder Survey that captured the information required for the Risk Determination Worksheet and additional data

11. Risk Approach: Builder Concerns with Information Required • Difficult to identify receiving waters • Difficult to complete channel stability worksheet (too complicated) • K-factor is too ambiguous – website was difficult to navigate • Definitions and parameters were unclear: • length of slope • slope inclination • sensitive receiving water • Indirect discharge – how far? • Demolition is not covered by this classification • Phases of construction were not considered

12. Risk Approach: Sediment Risk Factors • Sediment risk is calculated using RUSLE (comments to follow) • Sediment risk score appears to be calibrated adequately (based on one-year project with 100’ slope lengths) • Suggest updating sources of information • Additional information will follow in written comments

13. Risk Approach: Receiving Waters • Overall receiving water score appears biased high • Should not accrue risk if upstream of 303(d) waters where TMDLs are being met • Terms in worksheet need definition • Propose reducing risk score if not upstream of sensitive receiving waters • Suggest elimination of channel stability index (belongs with post-construction requirements) • Suggest providing credit for other BMPs, not just ATS • Suggest recalibration of overall receiving water score

14. Risk Approach: Receiving Waters

15. Risk Assessment Results

16. Action Levels • Support the concept of action levels (ALs) • For pH, suggest range should be broader • Proposed limit calculated from a limited dataset • Background conditions exceed at times • Calculation method doesn’t consider BMP performance or capability • For sediment, suggest evaluating alternatives to MUSLE approach • Fixed AL • Alternative calculation approaches such as the RUSLE2 or the Water Erosion Prediction Program (WEPP)

17. Numeric Limits • NELs are not appropriate for this permit • Proposed NELs have an inadequate basis • Inappropriate to apply an NEL to all storms, all conditions, without exception or recourse • Proposed NELs do not consider ambient or background conditions • No assurance that BMPs can achieve these limits

18. Numeric Limits: Proposed NEL for Turbidity • Derived without necessary BAT/BCT evaluations • Based on non-representative dataset • Background conditions frequently exceed • Calculated NALs may exceed NELs, so cap is arbitrary • No information on whether or not BMPs can achieve these limits over wide range of hydrologic conditions, areas, soil types

19. Numeric Limits • From Blue Ribbon Panel report: “… if chemical addition is not permitted, then numeric limits are likely not feasible … action levels are likely to be more commonly feasible … it is important to consider natural background levels of turbidity or TSS in setting [NELs] or [ALs] for construction activities…”

20. Background Levels of TSS or Turbidity Can Be Naturally High Source: General Construction Permit: Action Levels and Numeric Effluent Limits Analysis (Flow Science, 2008)

21. Background Levels of TSS or Turbidity Can Be Naturally High Source: General Construction Permit: Action Levels and Numeric Effluent Limits Analysis (Flow Science, 2008)

22. Background Levels Can Exceed Proposed NEL From Draft CGP Fact Sheet at p. 56.

23. Available BMP Data Cannot Support NEL Application • There is little quantitative information over a range of sites and conditions • Little info on performance variation with soil type, rain intensity, when BMPs are used in series/combination • No evidence (either way) that BMPs can achieve the proposed NELs at all times, in all places

24. AL/NEL Recommendation • NALs may be appropriate, but should be developed and implemented appropriately • Current program should not include NELs • State Board should implement a robust program of data collection to provide the data necessary to develop NELs for future permits, if that is the goal of the program

25. Comments on RUSLE/MUSLE • RUSLE used in risk calculations, MUSLE for NALs • Derived from USLE: • Numeric values typically assigned to these variables determine gross erosion and sediment yield are erroneous and cannot be supported scientifically A = R x K x LS x C x P

26. Comments on RUSLE/MUSLE • More detailed research is needed to calibrate the MUSLE model if it is to be used to develop NALs/NELs • Erodibility index should not use tolerable soil loss value (“T”), which relates to soil productivity and not water quality • “R” factor: TAMU web site requires additional explanation, may return questionable values • “K” NRCS values doe not apply to construction site soils; do not represent substrate soils • “LS”: single value too simple for complex sites • Suggest further research into alternatives: • Updated values for factors • RUSLE2 • WEPP to integrate multiple soil profiles within single drainage basin

27. Post-construction Requirements • Do not belong in CGP • Feasibility concerns • Prescriptive approach may lead to inappropriate outcomes • Standards are insufficiently specified to be implemented, do not address range of elements required to manage impacts comprehensively • Recommendations: • Eliminate post-construction language from permit • Implement via statewide requirements for municipal systems

28. Monitoring and Reporting • Concern that proposed data collection will not be useful or usable • Effluent monitoring may be difficult on large or long linear sites, may be many discharge points • Receiving water (RW) monitoring • Difficult to identify RW • May be difficult to safely access • Site’s connection to RW water may be remote and tenuous • RW monitoring requirements should be tied to sensitivity of RW, not just site risk • Support uniform, third-party data collection as part of well-designed study

29. Permit Should Support a Strong BMP-Based Approach • BMPs can and do improve water quality • Board Staff should recognize BMPs as an effective way to reduce risk

31. Economics Analysis

32. Economic Impacts of the Proposed Construction General Permit for Regulation of Stormwater Dr. David Sunding June 4, 2008

33. Conceptual Analysis of Economic Impacts • PCGP impacts a wide range of projects • Real estate development (residential, commercial) • Public projects (schools, hospitals, etc.) • Highway projects • Imposes a range of costs on developers • Additional expenses for monitoring, equipment • Delay • Uncertainty about outcome and timing of permitting process, and about weather

34. Developer Ready to break ground Evaluate Site Risk, Prepare SWPPP Risk Level 1, 2, 3 Risk Level 4 Submit SWPPP and CGP application Apply for Individual Permit Board Approval Yes No Reevaluate Risk and SWPPP: Resubmit Permit application; Delay incurred Break Ground, deploy Sediment, Erosion and Runoff controls Monitoring Action Level Exceedence? Yes No NEL requirements: Sampling, Enhanced BMPs, ATS Project Complete Project Complete

35. Comparison to Staff Economic Analysis • Only cost considered is purchase of monitoring equipment (Fact Sheet, p. 52) • Estimated at $1,000 per site • Does not meet state or federal requirements for economic analysis

36. Compliance Expenses • Compliance cost components: • Administrative costs related to SWPPP preparation and risk calculator • Monitoring • REAP • Additional site specific measures • Specific compliance costs for a project depend on risk level, actual sediment and receiving water characteristics

37. Compliance Requirements for Risk Levels

38. Sample Costs for a 5-Acre Site • Baseline • SWPPP ($12,750) • Visual monitoring ($10,235) • Erosion and sediment controls ($11,425) • Incremental • Trained preparer ($500) • Rain event monitoring ($34,765) • REAP ($10,000) • Site specific measures • ATS ($43,875) , Enhanced BMPs ($8,750) • Cover for inactive areas • Significant incremental costs for risk levels 2 and 3 • Risk level 4 in a separate category

39. Delay and Uncertainty • PCGP comes at the end of the permitting process • Resulting delays are pure economic losses • Developers • Homebuyers • Example: 50-acre site of $500,000 homes at 6 homes/acre • 14-day delay costs developer $100,000 at market interest rates • Homebuyer impacts are in addition • PCGP imposes significant uncertainty • Risk class is unknown ex ante • Compliance requirements difficult to ascertain • Length of permitting process • Weather conditions during construction period

40. Framework for Proper Consideration of Economics • Use available information to classify developable lands by risk category • Develop ranges of compliance costs by category • Overlay development probabilities for some planning period (2030) • Aggregate expected per-acre costs • Compare to benefits achieved and assess reasonableness

41. Ventura County

42. Summary • DCGP imposes several types of costs: • Compliance costs • Delay costs • Uncertainty (timing, requirements, weather) • Range of potential costs is large and difficult to estimate ex ante • No way to assess at present whether cost burden is justified by the benefits of the regulation

43. Responses to Dr. Wolff’s Questions

44. Where is Complexity Needed? • Risk approach should be simplified • Consider alternatives to MUSLE/RUSLE, or simpler approach • Complexity is warranted in any approach to NELs • Should consider local conditions (steepness, soil type, natural sediment loads) • Should consider receiving water conditions (type of channel, sensitivity of habitat) • Should consider design storm or other hydrologic conditions

45. What Kind of Data Collection and Reporting Would Be Best? • Support centralized data collection, to generate a dataset to support the State Board’s goals for the permit • Concern with proposed data collection and NEL/AL approaches • Local, site-specific monitoring can be more limited • Receiving water monitoring should be regional or targeted

46. What Kind of Data Collection and Reporting Would Be Best? (cont.) • Data collection could be a joint venture between the SWRCB and the regulated community • Conducted by an independent contractor • Data to include water quality, site characteristics, BMP characteristics, storm characteristics, receiving water characteristics • Data to be gathered for a range of sites that represent all risk levels, regions, soil types, receiving water risk, etc.

47. Is A Tiered Compliance Structure a Desirable or Undesirable Feature? • Support use of NALs to facilitate data collection and to improve understanding of construction site runoff and BMPs • Do not support NELs at this time • Support comprehensive, well-designed data collection efforts

48. Numeric Performance Standards “Bridge” Approach

49. Summary • Permit framework is sound; CBIA support • Make the risk calculator simpler • Establish a “bridge” approach to using numerics • Remove the NEL for turbidity and pH • Remove post-construction requirements • Perform a sophisticated economic analysis • Keep the General Permit as an inclusive permit and establish limitations on discretion