Item 8 Caltrans Cease and Desist Order February 13, 2019 Good morning Chair Young, Board members. I am Dale Bowyer with the Watershed Management Division Dale Bowyer Sr. Engineer Watershed Management Division

Introduction Control trash discharges Meet trash control benchmarks Reporting, assessment, and adaptive management Today we bring before you for your consideration a tentative Cease and Desist Order that would require Caltrans to control discharges of trash from its right of way. In my presentation, I will refer to this as the Order. Caltrans has a statewide stormwater permit that includes requirements to control trash. The Order would require Caltrans to comply with those requirements. We have been working with Caltrans for five years on this issue, and they have failed to make significant progress to date on this crucial pollutant. The Order would require Caltrans to meet trash control benchmarks—that is, to control discharges of trash from a specified amount of areas by associated deadlines. In addition, the Order would require Caltrans to complete additional assessment of its right-of-way and to report on its progress cleaning up trash. This would allow adaptive management and incorporation of lessons learned going forward.

Caltrans Must Control Trash Trash reduction requirements since 2013 Timely trash controls in high trash areas Caltrans is required to control trash discharges from its right-of way. Since 2013, its statewide stormwater permit has included San Francisco Bay Region-specific trash reduction requirements. The permit requires timely implementation of trash controls in all high trash generating areas.

History of Non-Compliance Trash Workplans unacceptable in 2014, 2015, 2016, and 2018 Trash Assessments inadequate 2016 Notice of Violation To demonstrate it has and is implementing a plan to reduce trash consistent with permit requirements, Caltrans has submitted several trash workplans since 2014. We have repeatedly found these plans to be insufficient, because Caltrans did not commit to enforceable trash control areas and deadlines. Where action was proposed, it was slow relative to the size of the problem. The plans were also unacceptable because their basis—visual assessments of amounts of trash on Caltrans right-of-way--was inadequate. As I will describe in a minute, the trash assessments did not provide a sufficient understanding of where the trash sources were and, as a result, the total area of Caltrans right-of-way from which trash must be controlled. In 2016, we issued a notice of violation to Caltrans for the failure to comply with the requirement to implement trash controls in a timely manner. In the over two years since we issued the notice of violation, Caltrans has not demonstrated compliance, or submitted an acceptable plan to come into compliance with their permit.

Trash Generation Map Here is a portion of the most recent map of trash generation conditions reported by Caltrans to us. As you may recall from the trash control requirements you imposed in the MRP, the municipal regional stormwater permit, the Board has recognized an assessment methodology based on visual observations of trash status. Those visual observations translate to a scale of low, moderate, high, and very high. Green is low, yellow is moderate, red is high, and purple is very high. The goal is to turn the map green, or low. On this map, Caltrans takes a similar approach, but it’s not same as that used by the MRP permittees, which results in the assessment being inadequate. Why is it inadequate? You can see that the assessment is far from complete. Significant areas of Caltrans right-of-way have not been assessed. These include parts of Interstate 880, U.S. Highway 1, and many state highways that are also city streets, such as San Pablo Avenue and El Camino Real. It also lacks detail. For example, for the areas that have been assessed, it is impossible to know how Caltrans is distinguishing between highway travel lanes, on- and off-ramps, and leasehold areas, such as the areas under the raised freeways in Oakland. Further, Caltrans has not provided a clear basis for its determinations of low, moderate, high, and very high, beyond stating they are a combination of several factors. Finally, while Caltrans’ trash assessments use the same categories as MRP permittees, the Caltrans versions of those categories generally have more trash. This may result in some areas, such as Interstate 980 in downtown Oakland, being shown as “low” trash generating. In its comment letter, Caltrans requested that it not be required to complete additional assessments, but this, the most-recent assessment, indicates that additional work needs to be done. Overall in our Region, Caltrans has about 25,000 acres of right of way. I want to note that Caltrans’ assessments to date have identified almost 9,000 acres of its right of way that are moderate or higher trash generating areas, under Caltrans’ definition of that term. As anything yellow, red, and purple need control, this assessment shows that there is plenty of work that can be done now, while Caltrans works to better assess its overall right of way.

Statewide Trash Amendments Control trash in “significant trash generating areas” by 2030 Trash amendments requirements will be in Caltrans 2020 permit permit - Significant = moderate and above In 2015, the State Water Board amended the Statewide Ocean Plan and Inland Surface Waters Plan to include a trash control requirements that apply statewide, and which apply to Caltrans. These amendments require dischargers to control trash from all significant trash generating areas. Caltrans’ permit is scheduled for reissuance by the State Water Board in 2020. When it is reissued, the requirements will be added to the permit, with a deadline of no later than 2030. The reissued permit will require implementation of trash controls in all significant trash generating areas statewide by 2030. As I noted in the previous slide, when you adopted the MRP, you included trash control requirements for discharges of trash from moderate, or yellow, areas and above. In other words, you consider moderate or above areas to be significant trash generating areas.

CDO Requirements Meet trash control benchmarks Assess trash generation status Submit maps, workplans, and feasibility studies The tentative order would require Caltrans to implement trash controls for benchmark acreages by certain dates. The benchmarks for 2020 through 2024 were determined based on work already planned by Caltrans. The 2026 benchmark of 3,720 acres was the result of an agency-to-agency negotiation process. Caltrans would be required to periodically assess its right-of-way, similar to what MRP Permittees are required to do. The tentative order would also require submittal of Workplans, Trash Control Feasibility Studies to find the best sites for full trash capture, and an annual trash generation map. Together, these tools would demonstrate the specific work accomplished or planned to control trash.

Caltrans Trash Control Projects On right-of-way (ROW)  capture On ROW  enhanced maintenance (capture equivalent) Off ROW  cooperative capture projects with municipalities Caltrans has a number of ways it can implement trash controls. These include installation of full trash capture devices, such as inlet screens or hydrodynamic separators on its right-of-way. These can be very expensive, according to Caltrans up to $200K per acre treated for retrofit projects that are done separate from any other work. Also, there are enhanced maintenance measures, where Caltrans increases trash pickups and sweeping to control trash, equivalent to trash capture. These are challenging because of Caltrans’ existing limited maintenance budget. Finally, Caltrans can work with local entities to install off-ROW full trash capture devices through cooperative projects that treat both Caltrans and municipality land. These can be much less expensive, with costs ranging from about $20K to $50K per Caltrans ROW acre treated. Actual costs can be as low as $2,000 per acre for total municipal and Caltrans areas treated.

Funding Options SHOPP Program ≈ $130 Million/year Cooperative Implementation Maintenance Funds SB 1 ≈ $2.5 Billion/year Capital Project Funds Caltrans has various sources of funds to control trash. Its State Highway Operations and Protection Program, SHOPP for short, funds the majority of stormwater controls and is the main source of funding for trash reduction. This source is $130 million/year statewide. Of this, Caltrans has suggested a willingness to direct to our Region about $200 million over 6 years. For on-right-of-way projects funded under this program, it can take 4 to 6 years to from conception to completion of construction. Off-right-of-way projects can be constructed much faster. We have committed to work with Caltrans to pursue cooperative implementation projects with local municipalities due to the increased cost-efficiency and speed of these projects. Several have already begun. Other sources of funds include maintenance funds to implement enhanced trash removal, funds from Senate Bill 1, which includes $2.5 billion a year statewide to Caltrans, and funds for other capital projects.

Comments Treat more area, faster Assessments equivalent to MRP assessments We received numerous comments from municipalities, environmental groups and other interested parties during the five-week comment period. Commenters urged a faster implementation schedule with increased acreages treated – Save the Bay, among others, urged an accelerated schedule Commenters are supportive of future trash generation reassessments and asked that we ensure Caltrans’ trash generation assessments are consistent with MRP Permittee assessments. The Order would require Caltrans to do this.

Conclusion Enforcement necessary Trash control benchmarks Future assessments necessary In conclusion, Caltrans has not met permit requirements, necessitating enforcement action. This Order would require trash controls consistent with requirements in the Caltrans permit and the Statewide Trash Amendments. The Order would require Caltrans to meet mandatory minimum benchmarks of trash control by dates certain. Future assessments are needed to fully define the task—namely, how much right of way requires trash control, and the best means of achieving that. The Order would also direct Caltrans to update assessments to adequately control trash from their ROW. The Order includes a requirement for these assessments. That concludes my presentation.