Your Rights to Use Copper-Based Paints Under Attack

RBOC is urging boaters in Los Angeles and statewide to take action by May 13 and email the state water board before it acts on a Marina del Rey plan that could lead to requirements that boaters switch from effective copper-based antifouling paints we use on our boat hulls. This could lead to action in several other regions of the state.

It can happen in Marina del Rey and it could happen to boaters in many other parts of the state.  Marina del Rey boaters have only used State approved copper based paint products on their boats and now the Board is telling them that they have a choice to make:  Register for a $1,094 Waste Discharge Permit, pay $8,000 or more to strip and paint their boats, incur more than double the amount of cleaning costs, incur compliance costs, be named a “Responsible Party” for pollutants, risk litigation, and put their property into legal jeopardy --- or, leave the Marina so they won’t be subject to these onerous burdens and legal jeopardy. 

The Issue - Local regional water quality control boards are taking action to implement copper total maximum daily loads (TMDLs) in impaired water bodies in California.  This occurred first in Shelter Island Yacht Basin in San Diego.  Earlier this year, this occurred in Marina del Rey.  Next up could be Newport Beach, and others are anticipated.

In each of these situations, a good deal of misunderstanding surrounds the topic of copper-based anti-fouling paint.  Some regional water quality control boards, following the requirements of the Clean Water Act, have started to implement measures that seek to reduce the amount of copper in the water.  The target has been recreational boaters and the reliance upon copper-based anti-fouling paint.

The real problem, however, is that the current federal standard is overly protective and that, in fact, the copper in the water of our marinas is not in any way toxic to benthic organisms.

RBOC is requesting that you send the text that follows on the next two pages via email to the State Water board before 12:00 noon on Tuesday, May 13, 2014.

Feel free to personalize your email to the State Board, but include the major themes.

Via Email to:               commentletters@waterboards.ca.gov

Send a Copy to:         rboc@rboc.org

Subject Line: Proposed Amendment to the LA Regional Basin Plan To Revise the TMDLs for Marina del Rey Toxic Pollutants

Jeanine Townsend, Clerk to the Board

State Water Resources Control Board

State Water Resources Control Board:

I urge the State Water Resources Control Board to delay implementation or approval of copper TMDLs in any salt water bodies in California until a number of key actions occur, and I urge the Board to reject the proposed amendment to the Los Angeles Regional Basin Plan to revise the Total Maximum Daily Loads for Marina del Rey Toxic Pollutants.

The following points were also raised by other interested parties in opposition to the proposed amendment in comment letters that were sent to the Board (including, but not limited to, those by Alston & Bird and the County of Los Angeles) and at the Los Angeles Regional Water Quality Control Board’s February 6, 2014 meeting. The Board’s responses are inadequate or factually incorrect, as noted herein and in opposition comments and statements by others. 

1. Delay Implementation of TMDLs in Salt Water

I urge the State Water Resources Control Board to delay implementation or approval of copper Total Maximum Daily Loads [TMDLs] in any salt water bodies in California and to reject the proposed amendment until the following occur:

  • Allow divers to implement best management practices - on hull cleaning as per the state report issued pursuant to AB 425 (Atkins, Chapter 587, Statutes of 2013).  It appears to date that implementing best management practices on hull cleaning has had a mitigating effect on copper in the water and there needs to be time to further review the effect.

  • Allow time for the USEPA to approve the Biotic Ligand Model (BLM) - for determining copper toxicity in salt water.  It is believed this approval is forthcoming shortly and therefore there would be accurate site specific information available to the Regional and State Water Boards in determining appropriate implementation methods needed, if any.

  • Allow the paint manufacturers to develop copper paints with lower leach rates - also pursuant to AB 425 (Atkins).  Effective and affordable paints with lower leach rates are in the foreseeable future.

 2. Reject Proposed Marina del Rey Basin Plan Amendment 

Given the enormous cost to the State of California, Counties, Cities and boaters in implementing the revised copper TMDLs, and considering that the above factors may mitigate the need for TMDLs to be necessary at all, this request is reasonable and should be granted by the State Water Resources Control Board.

The Board’s Notice Fails The Due Process Test

Although boaters may have been on the mailing list to receive notice of the proposed TMDL, many don’t recall seeing it and certainly would not have realized the importance of the notice because it referenced only “technical changes” to the TMDL.  There was never any warning in the notice about the onerous burdens that would be placed on boaters, such as naming them as “Responsible Parties” and thus liable for copper pollution in the Marina.

By failing to ensure that affected parties were adequately and timely notified, the Board denied stakeholders the right to be heard.  This is a fundamental denial of due process and it denied boaters, anchorages and other interested parties with the opportunity to provide meaningful input in the development of the TMDL Amendment. 

This Regulation puts the Marina del Rey Community in Jeopardy

Litigation is rampant in California.  We all know that, and boaters do not want to be part of an environmental lawsuit because the Board unilaterally says that I’m the “Responsible Party” just because they keep a boat in Marina del Rey.  Questions of liability should be established by an impartial judge, not a regulatory agency in the context of a TMDL Amendment.   

Boaters in Marina del Rey have only used State approved copper based paint products on their boats and now the Board is telling them that they have a choice to make:  Register for a $1,094 Waste Discharge Permit, pay $8,000 or more to strip and paint their boats, incur more than double the amount of cleaning costs, incur compliance costs, be named a “Responsible Party” for pollutants, risk litigation, and put their property into legal jeopardy --- or, leave the Marina so they won’t be subject to these onerous burdens and legal jeopardy. 

The Board says that its “unlikely” for boaters to leave Marina del Rey because of the new regulation.  Would boaters seriously consider leaving the Marina or selling their boat under these circumstances?  Absolutely. 

Invasive Species 

The Regional Board failed to do a meaningful site specific environmental analysis of the increase in invasive species that will result from eliminating copper bio-cide paints.  The Board stated that “adverse environmental effects are acceptable” including the “increased growth of fouling organisms and invasive species” as a result of using non-copper based paints.  Copper biocides have worked well over the decades to reduce the transport of invasive species.  Eliminating this protection could have disastrous consequences.  Non copper paints will foster the growth of biofilms on hulls, which harbor harmful bacteria and carbon, and which cause increased drag, resulting in the burning of more fuel and discharge of more emissions into the marina.  This, plus the dredging the Regional Board wants could seriously threaten the delicate ecosystem of our marina, create new, unknown risks and outweigh the potential benefit from banning copper paint.

The Board’s Economic Analysis Is Wrong

Based on personal knowledge of many boaters, boats are stripped every 20-40 years in Marina del Rey...  and not the 7-10 years stated by the Board.  I don’t know where they got that number, but it’s wrong.

In many cases, boaters are not planning to strip their boats for another 20+ years, well beyond the 10 year compliance period.  But under the Amendment, boaters are facing paint stripping costs, a doubling of cleaning costs, the registration of a Waste Discharge Permit at a current cost of $1,094, potential compliance, enforcement and legal challenges.  The Board’s Economic Analysis was prepared by someone who clearly doesn’t understand boating in Marina del Rey, or the potential costs of this ill-advised regulation.

The Board’s Actions Are Illegal

What’s troubling to boaters is that an unelected, unaccountable board is undertaking to mandate new regulations, name “responsible parties” in a TMDL and create for itself the ability to order remedial action, require permits, impose fines on citizens, harm our local economy and effectively take away our property. 

The Board is misusing its power to impose an unfair regulation that is more costly, more burdensome, and much harsher than what was approved for San Diego’s Shelter Island. 

The Board has no authority to name “Responsible Parties” in a TMDL.  Its actions are outside the law and not authorized by statute or case law.   If this Board can ignore the people, the law, economics, science and common sense, what’s next?

The State Water Control Board should reject the TMDL Amendment. 

Respectfully,

Key Amendment Made to SB 436 Prior to Passage

RBOC is very appreciative with the amendments made to SB 436 on September 11 before the bill proceeded through the Legislature at the end of session.

While RBOC has not yet removed our opposition to SB 436 at this moment, we do confirm and acknowledge that the amendment resolves our most significant issue: opening up the boater-financed state Harbors and Watercraft Revolving Fund [HWRF] for a non-boating purpose: the prevention of damage to streets and property within cities caused by beach erosion and flooding.

The remaining provision in SB 436 would still authorize a grant or loan of $1,000,000 from the Harbors and Watercraft Revolving Fund to pay for emergency measures to prevent flood damage and erosion to streets and property along Hueneme Beach. This is not a use that directly benefits the boaters who pay their hard-earned taxes and registration fees into the Fund.

RBOC appreciates the efforts of the many California boaters who reached out to their legislative representatives in the State Capitol in the final days of session and made the significant amendment possible. BoatU.S. and its members played a vital role in this effort.

RBOC Urging Boaters to Contact their Assembly Members

SB 436 [Jackson] Boater Funds for Non-boating Programs

RBOC urges California boaters to contact their state Assembly Members and urge them to vote “no” on SB 436 [Jackson] when this bill is taken up on the Assembly Floor [Assembly Third Reading].

Quick action is needed – this bill was just created through amendments on September 6 and we anticipate it will be acted upon before the Legislature recesses this first year of the 2013-2014 legislative session on Friday, September 13.

SB 436 would open up the boater-financed state Harbors and Watercraft Revolving Fund [HWRF] for a non-boating purpose: the prevention of damage to streets and property within cities caused by beach erosion and flooding, including $1 million for streets and property located along Hueneme Beach.

While RBOC recognizes the importance of prevention efforts at Hueneme Beach, boaters are not the source of the damage, nor are they the beneficiaries of the prevention efforts that would be financed by their fuel tax dollars and registration fees.

 

SB 436 - Boater Funds for Non-Boating Programs

September 10, 2013

Instructions –

  • Identify your Assembly Member and his \ her contact information:

 http://findyourrep.legislature.ca.gov/

  • Click onto the link to your Assembly Member’s website. This site will provide the phone number and usually a contact form for emails.
     

  • Use the sample text below for an email, fax or phone call to your Assembly Member. Make sure to identify yourself as a constituent.
     

  • Please submit ASAP, quick action is needed – this bill was just created through amendments on September 6 and we anticipate it will be acted upon before the Legislature recesses this first year of the 2013-2014 legislative session on Friday, September 13.

 

The Honorable [insert name]

State Assembly

State Capitol

Sacramento, CA 95814                      

 

Re: SB 436 [Jackson] – Oppose

                       

New Bill Created on September 6 - Boater Funds for Non-boating Programs

 

Dear Assembly Member [insert name]:

 

I am a constituent and I urge you to vote “no” on SB 436 [Jackson] when this bill is taken up on Assembly Third Reading.

 

I am seriously concerned that SB 436 would open up the boater-financed state Harbors and Watercraft Revolving Fund [HWRF] for a non-boating purpose: the prevention of damage to streets and property within cities caused by beach erosion and flooding, including $1 million for streets and property located along Hueneme Beach.

 

While I recognize the importance of prevention efforts at Hueneme Beach, boaters are not the source of the damage, nor are we the beneficiaries of the prevention efforts that would be financed by our fuel tax dollars and registration fees.

 

As the Department of Boating and Waterways has now become a Division within the Department of Parks and Recreation effective July 1 as per the provisions of GRP #2 of 2012, it is critical that the transition preserves and maintains the integrity, vitality, structure, funding and effectiveness of the HWRF that works to provide programs and services that directly benefit the boaters who provide our hard-earned taxes and fees for this special fund. SB 436 is contrary to these principles.

 

Thank you for this opportunity to discuss my position on this bill.

 

[name]

[insert street address, city \ state \ zip so Member can confirm you are a constituent]