Butte County Clerk of the Board

2008 BOARD OF SUPERVISORS MEETING CALENDAR

chapter two

HEALTH EFFECTS AND REGULATION OF NITRATE

This chapter provides background on the adverse health effects of excessive nitrate in drinking water, regulatory structure and authority, and the specific Chico-area enforcement actions taken at the state level.

2.1 Health Effects of Excessive Nitrate

The nitrate regulatory level for groundwater contamination in California is identical to that of the Federal Environmental Protection Agency and the World Health Organization. However, the method of expressing the standard varies (see Chapter 3, page 3-5). In the following discussion an attempt has been made to be consistent in referring to the state of California standard of 45 mg/l as nitrate. Some agencies utilize the standard of 10 mg/l as nitrogen, which refers to the amount of elemental nitrogen in the nitrate compound. These two standards, 45 mg/l as nitrate and 10 mg/l as nitrogen are identical.

When nitrate-nitrogen concentrations in water reach excessive levels there can be harmful biological consequences for humans and other organisms which depend on the water. Of course, human health is of primary concern when setting guidelines for acceptable nitrate levels and proper agricultural practices. The United States Environmental Protection Agency established the current drinking water standard based on the human health risks due to nitrate consumption (Kross, 1993). Although there have been studies performed attempting to assess any causal link of nitrate consumption and various illnesses, only methemoglobinemia (also known as infant cyanosis or blue-baby syndrome) has been proven to result from ingestion of water containing high nitrate concentrations above 45 mg/l (Kross, 1993). Other evidence does raise concerns over other potential health effects, and although inconclusive, cannot be summarily dismissed.

Methemoglobinemia (Blue-baby Syndrome)

More commonly known as blue-baby syndrome or nitrogen cyanosis, methemoglobinemia is the primary health problem driving the establishment of the worldwide nitrate standard of 45 mg/l. Blue-baby syndrome is a condition caused by the incorporation of nitrates into blood hemoglobin forming a compound known as methemoglobin. Hemoglobin is responsible for transporting oxygen in the blood. Methemoglobin cannot transport oxygen. When methemoglobin concentration becomes too high a victim of the disease presents symptoms of anoxia (low blood oxygen) including blue coloration of the skin. Young infants are particularly susceptible to the disease because of unique conditions in their immature intestinal tract.

Since 1945, there have been over 2000 cases of infant methemoglobinemia reported in Europe and North America with 7 to 8 percent of the afflicted infants dying (Rail, 1989). Generally, the incidence of methemoglobinemia in the United States is not known and it is not on the list of diseases that must be reported to public health authorities.

There have been few reported fatalities due to methemoglobin in the past quarter century in the United States (Johnson, 1987). This may be linked to nitrates being less toxic than currently believed. However, the absence of reported cases could also be due to the fact that drinking water in the United States is of generally good quality, coupled with good public knowledge of its potential adverse effects (Bonrud, 1995), resulting in reduced nitrate exposure.

The lack of apparent cases of methemoglobinemia may also be due to the fact that methemoglobinemia can be misdiagnosed as congenital heart disease because of the similar symptoms of both conditions. Some scientific and medical literature suggests that this misdiagnosis occurs (Comly, 1987; Pangaud, 1991; Kross, 1992). Additionally, some scientific literature suggests that asymptomatic cases of methemoglobinemia may occur, but may manifest themselves in retarded growth or other difficult to diagnose conditions (Terblanche, 1991).

The safety factor used to establish a "safe" level of nitrate in drinking water is one, i.e., no margin of safety. For most health effects, a much higher safety factor of 100 is used (Bouchard, 1992). Thus the established regulatory level for nitrate is unique in having a very low safety factor.

Other Health Concerns Associated with Nitrate

Potential Carcinogenic Effects: Another, albeit chronic, health hazard is the possible formation of carcinogenic nitrosamines. Nitrates in the human body can be converted to nitrites and then to nitrosamines. Many types of nitrosamines are carcinogenic in animals. However, the EPA currently does not classify nitrate as a carcinogen (Bouchard, 1992). Several studies have shown a positive correlation between some cancers and nitrate intake (Terblanche, 1991; Bouchard, 1992; Kross, 1993). However, it is apparently thought that the other confounding factors in these studies do not allow the classification of nitrate as a proven or probable carcinogen.

Stomach and Gastrointestinal Cancer: Although many studies have been performed attempting to link stomach and gastrointestinal cancer to nitrate intake, there is no conclusive evidence that there is a correlation. In fact, two particular studies in the United Kingdom have shown an inverse relationship. Instances of stomach cancer are highest in areas where the groundwater concentration of nitrate is lowest and vice versa (Payne, 1993; Forman et al., 1985). Scientists claim that nitrate represents a potential risk because of nitrosation reactions which, with appropriate substrates present, form N-nitroso compounds which are strongly carcinogenic in animals (Forman, 1985). In other areas of the world such as Columbia, Chile, Japan, Denmark, Hungary, and Italy, similar studies have suggested a correlation, although there still exists no concrete evidence to support this theory (Forman, 1985).

High Blood Pressure: One study has shown an earlier onset of hypertension in communities exposed to nitrate in drinking water in concentrations of 19 to 123 mg/l (milligrams per liter) as nitrate versus communities with essentially nitrate free water (Terblanche, 1991).

Central Nervous System Effects: A study on 39 children whose drinking water contained 108 mg/l nitrate showed impaired responses to visual and hearing stimulation compared to children drinking water containing only 8 mg/l nitrates (Terblanche, 1991). It is interesting to note that in this study the children with impaired responses had methemoglobin blood levels of an average of 5.5%. It is generally thought that levels of less than 10% are of no medical significance (normal range is less than 2% Terblanche, 1991). This study may thus suggest that the margin of safety in the current standard, although potentially avoiding methemoglobinemia, may not be preventing other adverse effects. The concern that elevated methemoglobin levels will result from consumption of water with elevated nitrate levels seems to be reinforced by a study performed in South Africa in 1991. This study showed that the minimum methemoglobin level found in infants consuming water varying in nitrate concentration from approximately 20 mg/l as nitrate to 100 mg/l was approximately twice the accepted upper normal bound (levels of 4 to 5 % vs. the upper normal level of 2%) (Hesseling, 1991).

Birth Defects: Studies in Australia and Canada have shown statistically increased incidence of congenital malformations associated with wells with high levels of nitrates. However, the studies were considered too limited in scope and the range of defects too broad to demonstrate a causal effect. (Terblanche, 1991). In addition, studies on rats showed that transplacental passage of nitrites can occur, causing raised levels of methemoglobin in the fetus and impaired growth (Shuval, 1977).

Other Concerns: The presence of high nitrates in ground water in the Chico Urban Area, coupled with the linkage to septic sources suggests that many shallow ground water wells are receiving a substantial portion of recycled sewage in their water supply. Under the appropriate conditions in the homeowners leach field, most, if not all, disease-causing organisms should be removed before the wastewater reaches any wells. However, the potential for transmission of disease-causing bacteria or virus is always present. This is especially true at the density of systems that are currently present in the Chico Urban Area, coupled with the fact that septic systems often are subject to conditions not addressed in typical designs. One matter is certain: the effluent reaching ground water would not be allowed to be used for ground water recharge under current California regulations for reclaimed water (Title 22), although that is essentially what is occurring in the Chico Urban Area.

There is also concern that the use of septic tanks and leach fields may be contributing toxic organic compounds to the groundwater. For example, studies have shown that compounds such as chlorinated hydrocarbons and aromatic solvents were present in the septic tanks from single family homes in significant concentrations (Kolega, 1989). There is already a serious problem in groundwater in the Chico Urban Area due to perchloroethylene (PCE), primarily thought to be due to chemical dumping from dry cleaners. It would be unfortunate if septic systems in the Chico Urban Area were to add to the existing problem.

2.2 Drinking Water Standards & Sources of nitrate

The standard for nitrate in drinking water is set at 45 milligrams/liter (mg/l, equivalent to parts per million) as nitrate, by the World Health Organization, the United States Environmental Protection Agency, and the California Department of Health Services (Terblanche, 1991; Bouchard, 1992; Pontius, 1993).

Environmental Protection Agency Regulations

Pursuant to the federal Safe Drinking Water Act, the U.S. Environmental Protection Agency has established the "maximum contaminant level" for nitrate in groundwater. The maximum contaminant level is defined as the "highest level of a contaminant permissible in water in a public water system."

The determining factor in the EPA's decision to set the maximum contaminant level for nitrate at 45 mg/l was the occurrence of methemoglobinemia in infants under six months of age.

The maximum contaminant level reflects the levels at which this condition may occur (Kamrin, 1987). Although the maximum contaminant level for nitrogen was set at 45 mg/l as nitrate, in 1976 the EPA suggested that water having concentrations above 5mg/l as nitrate should not be used for infant feeding (Rail, 1989). This guideline is very conservative and nitrate concentrations below 45 mg/l as nitrate are probably harmless as well. However, because concentrations this low are common, the EPA hopes this guideline will induce people in rural areas to have their wells tested so that severe nitrate contamination is detected and serious health problems are avoided in the future.

Nitrogen is the most abundant element in the atmosphere, composing nearly 80% of the air we breathe (Berner and Berner, 1987). Gaseous nitrogen can be found in many forms, the major ones consisting of Nitrogen (NO₂), Nitrous Oxide (N ₂O), Nitric Oxide (NO), Nitrite (NO ₂^-), Ammonia (NH ₃) (Gaillard, 1995). Some of these gases readily react with rainwater to produce nitrate and ammonium ions in solution. These ions can become part of the soil layer composition, or even enter into a groundwater solution.

The two most important compounds that result from the reaction of these gases and rainwater are nitrate (NO₃^2- an anion) and ammonium (NH ₄⁺, a cation). In the atmosphere, major sources of nitrate include reactions caused by lightning, photochemical oxidation in the stratosphere, chemical oxidation of ammonia, soil production of Nitric Oxide (NO) by microbial processes, and fossil fuel combustion (Gaillard, 1995).

Ammonia in the air comes from fertilizer manufacturing, anaerobic decay of organic matter, bacterial decomposition of excreta, and the burning of coal (Gaillard, 1995). Human activities have a major impact on the levels of these compounds that are found in both rainwater and the atmosphere. Many of the major sources of nitrate and ammonium come from the use and production of fertilizers and the burning of fuels, as listed above.

Nitrogen that leaves the atmosphere can be converted back into elemental nitrogen through the process of denitrification. This often takes place in the soil through the activity of bacteria that reduce the nitrate. Ammonium can undergo the process of nitrification, which is an oxidation reaction that converts it to nitrate. Through this mechanism, the nitrogen in the ammonium ion is released back into the atmosphere (Berner and Berner, 1987). After the conversion from elemental into nitrogenous ions in solutions of rainwater, the nitrogen in these compounds can be exhausted back to the atmosphere by the pathways previously described, thus completing the cycle.

Major Sources of Nitrate in Groundwater

Although there are many sources of nitrogen (both natural and human) that could potentially lead to pollution of the groundwater with nitrates, the human sources most often cause the nitrate to rise to a dangerous level. Waste materials are one source of nitrate contamination of groundwater. Many local sources of potential nitrate contamination of groundwater exist, such as "sites used for disposal of human and animal sewage; industrial wastes related to food processing, munitions, and some polyresin facilities" (Vomocil, 1987); and "sites where handling and accidental spills of nitrogenous materials may accumulate" (Hallberg and Keeney, 1993, p. 303).

Septic tanks are another source of nitrogen contamination of groundwater. Many areas of the United States and other countries have reported significant contamination of groundwater from septic tanks. Groundwater contamination is usually related to the density of septic systems (Hallberg and Keeney, 1993). In densely populated areas, septic systems can represent a major local source of nitrate to the groundwater. However, septic systems in less populated areas do not pose a significant threat of groundwater contamination.

When natural sources contribute a high concentration of nitrate to the groundwater, it is usually a result of human disturbance. One example of this is the effect of forested areas on the leaching of nitrate to the groundwater. Natural, mature forests conserve nitrogen but human disturbances can lead to nitrate pollution of the groundwater. However, while this is a potential problem for groundwater, forests represent a very small source of nitrogen compared to agriculture (Hallberg and Keeney, 1993).

Non-agricultural Nitrate Sources

One potentially large source of nitrogen pollution of groundwater is the application of nitrogen-rich fertilizers to turfgrass. This occurs on golf courses and in residential areas. There are five fates for this nitrogen once it is applied to turfgrass. It may be:

    1) taken up by plants

    2) stored in soil

    3) lost to atmosphere

    4) lost to groundwater

    5) lost to runoff (Bocher, 1995)

Many studies have shown that about 30 to 50 percent is taken up by the plant. According to a United States Golfing Association study, only one to two percent of the nitrogen is leached beyond the root zone (Bocher, 1995). This result may occur only when the nitrogen fertilizer is applied carefully and properly. Certain circumstances could lead to more of the nitrogen leaching to the groundwater. Six main factors affect nitrogen leaching:

1) nitrogen rate - One study showed that at one pound of nitrogen per 1,000square feet, no leaching            occurred.

2) nitrogen source - Slow-release fertilizers are a nitrogen source that can reduce the chance of leaching.

3) application timing - In late fall, plants take up less nitrogen and there is a greater chance for leaching to occur.

4) irrigation practices - The more irrigation that takes place the greater the chances for nitrate leaching.

5) soil texture - The sandier the soil the more chance for nitrate leaching.

6) age of site - Younger sites usually have less organic matter and need to be fertilized more, therefore  increasing the chance of leaching. (Bocher, 1995)

Agricultural Sources of Nitrate

Nationwide, agriculturally-related activities are one of the most significant sources of nitrate in ground-water. Excessive use of nitrogen-based fertilizers, livestock manure storage, and crop irrigation (leading to nitrate leaching) are primary well contaminants.

The application of nitrogen based fertilizers to crops may result in excess nitrogen in the soil if more fertilizer is applied than can be taken up by the plants. While unlikely, given the cost and modern farming techniques used to determine the optimum level of fertilizer required, if over fertilization does occur it may result in leaching of nitrates into the groundwater.

Livestock and dairy practices which concentrate animals, particularly feed lots and small grazing pastures, also concentrate animal wastes and potentially lead to groundwater contamination by nitrate. Even small farms can contribute to the problem of excess nitrates because of the high concentrations of manure in barnyard or feedlot areas (Hallberg and Keeney, 1993). Another potential agricultural source of nitrate leaching to the groundwater is the storage of manure. Certain high-density livestock enterprises store manure in piles or as a slurry in lagoons. These practices may result in excessive leaching of nitrates if not properly managed.

2.3 Regulation of Groundwater Nitrate in California

Porter-Cologne Water Quality Control Act (State Water Code)

The Water Code of the State of California (short title-Porter-Cologne Act) is the enabling code for the State Water Resources Control Board and the Regional Water Quality Control Boards. The Water Code requires the Regional Board to develop Basin Plans which contain water quality objectives to maintain beneficial uses of the waters of the State. The code further defines waters of the State to include groundwater.

The Basin Plan for Region 5, by reference, establishes water quality objectives for potable groundwater to be identical to the Department of Health Services maximum contaminant levels. In the case of nitrate, this standard is 45 mg/l as nitrate.

The Water Code also establishes the enforcement actions available to the Board in the event that water quality objectives are exceeded. These enforcement tools include prohibitions of certain types of discharges, Cease and Desist Orders, and Cleanup and Abatement Orders, as well as administrative and judicial civil liabilities (fines).

State Water Resources Control Board and Regional Boards

The State Water Resources Control Board (SWRCB) was created by the Legislature in 1967. The mission of the State Board is to ensure the highest reasonable quality of waters of the state, while allocating those waters to achieve the optimum balance of beneficial uses. The joint authority of water allocation and water quality protection enables the State Board to provide comprehensive protection of California's waters.

The State Board consists of five full-time salaried members, each filling a different specialty position. Board members are appointed to four-year terms by the Governor and confirmed by the Senate.

There are nine Regional Water Quality Control Boards. The mission of the Regional Boards is to develop and enforce water quality objectives and implementation plans which will best protect the beneficial uses of the State's waters, recognizing local differences in climate, topography, geology and hydrology.

Each Regional Board has nine part-time members appointed by the Governor and confirmed by the Senate. Regional Boards develop "basin plans" for their hydrologic areas, issue waste discharge requirements, take enforcement action against violators, and monitor water quality.

The task of protecting and enforcing the many uses of water, including the needs of industry, agriculture, municipal districts, and the environment is an ongoing challenge for the State and Regional Boards.

Programs of the State Board

Numerous State Board activities protect both surface and ground water. Permits are required of all communities and businesses wishing to discharge wastes into State waters. These permits are issued and enforced by the Regional Boards.

Other important programs include the Board's Waste Disposal to Land Regulations, waste discharge requirements which are issued by the Regional Boards to control the discharge to land of hazardous and nonhazardous wastes.

The Toxic Pits Cleanup Act regulates surface impoundments containing liquid hazardous wastes and requires double-lining and monitoring.

The Solid Waste Assessment Testing (SWAT) program detects hazardous waste leakage from solid waste disposal sites.

The Underground Storage Tank Program is aimed at finding, preventing, and cleaning up leakage from tanks that contain gasoline and other hazardous substances. The California Underground Storage Tank Cleanup Fund was established in 1990 to pay for corrective action and third party liability costs resulting from leaking petroleum underground storage tanks. The fund also pays for direct cleanup of abandoned sites that require prompt action.

The Spills, Leaks, Investigation, and Cleanup Program (SLIC) manages sites with pollution from recent or historic surface spills, subsurface releases (such as pipelines), complaint investigations, and all other unauthorized discharges that pollute or threaten to pollute surface or ground water.

The Aboveground Petroleum Storage Act protects the public and the environment from spillage of petroleum-derived chemicals stored in thousands of aboveground tanks.

The Department of Defense and Department of Energy Program was created to establish procedures to clean up pollution at federal military sites and federal energy sites.

Under the federal Resource Conservation and Recovery Act (RCRA), hazardous wastes are tracked from "cradle to grave"; from generation to storage to transport to disposal. The State Board plays an important role through its own authority in the areas of land disposal and ground water monitoring. It also performs water quality-related review work to provide the California Department of Toxic Substances Control, the program's lead agency, with information to guide it in issuing permits to land disposal facilities.

Central Valley Regional Water Quality Control Board

The Central Valley Regional Water Quality Control Board oversees the largest single basin in California, covering 40% of the state. Encompassing virtually all the lands which drain through the Delta and into San Francisco Bay, the Central Valley Region stretches from the Oregon border to Ventura County.

The regional board consists of nine members appointed by the Governor. State law specifies that the board members shall "represent and act on behalf of all the people and shall reside or have a principal place of business within the region." The board's membership consists of the following:

(1) One person associated with water supply, conservation, and production.(Vacant)

(2) One person associated with irrigated agriculture. (Craig Pedersen)

(3) One person associated with industrial water use. (Charles Ahlem)

(4) One person associated with municipal government. (Vacant)

(5) One person associated with county government. (Vacant)

(6) One person from a responsible nongovernmental organization associated with recreation, fish, or wildlife. (Steven Butler, Chair)

(7) Three persons not specifically associated with any of the foregoing categories, two of whom shall have special competence in areas related to water quality problems.

(Karl E. Longley, Robert Schneider, Susan Azevedo)

An essential aspect of the Butte County Nitrate Compliance Program has been the participation and close communication among the public, the Board of Supervisors' committee, Regional Board staff, and the County's project team. The involvement of Regional Board staff has greatly contributed to the progress of the County's effort, particularly in representing the regulatory perspective during innumerable debates and discussions regarding very complex issues. This close communication enabled the County to aggressively pursue the facts, evaluate alternatives, and fashion the best solutions possible. Key Regional Board staff members are:

    Gary M. Carlton, P.E., Executive Officer (Sacramento)

    James C. Pedri, P.E., Assistant Executive Officer (Redding)

    Ronald S. Dykstra, P.E., Senior Water Resource Control Engineer (Redding)

Water Quality

Until recently, the quality of groundwater was generally taken for granted. Because it is shielded from the elements, its quality generally is good, although it sometimes contains high levels of dissolved minerals. Groundwater may be very "hard" (high in the minerals calcium and magnesium). Hardness does not pose a health risk but does make household cleaning tasks more difficult. Also, soap lathers less vigorously in hard water than in soft water.

The link between pollution and groundwater is less obvious than it is with surface water, where it is easier to see and monitor the effects. Surface waters may become polluted more quickly and readily, but they are better equipped to handle pollution. The exposure to air and sunlight as a swift-moving stream courses along causes some pollutants to evaporate, while others are consumed or rapidly diluted by aerobic (oxygen-using) bacteria.

Groundwater lacks the natural self-cleansing abilities of streams and rivers. Below grade, there is much less exposure to the atmosphere. The environment is relatively bacteria-free and the temperature relatively constant. As the water inches along, the lack of turbulence allows pollutants to move through the system as a "plume" rather than disperse and become diluted.

It was once believed that soil would filter out all contaminants, and it does filter out many. However, with the introduction of thousands of new chemical compounds into the environment and major advances in detection technology, traces of chemicals have been discovered in wells throughout the state and nationwide. Once a groundwater supply is contaminated, it is difficult and expensive to clean up.

2.4 Use of Onsite Systems in California

Notwithstanding any perception to the contrary, the dependence on individual onsite systems in California is widespread and is increasingly considered a permanent condition. California residents currently utilize approximately 1.1 million onsite systems, primarily conventional septic tank and leach field units. Due to the escalating cost of community sewerage systems, the population trend away from cities, and the regulatory encouragement for disposal to land rather than receiving waters, the use of such systems is increasing.

The primary responsibility for permitting onsite sewage disposal systems lies with county health departments, with the regional boards providing oversight only in rare cases. In general, each regional board establishes minimum guidelines for the use of septic systems in a given area. As long as these standards are adhered to and there is little evidence of system failures, such as surfacing effluent or indications of water contamination, the counties administer their individual programs.

Report of the State TAC for Onsite Sewage Disposal Systems

The State Water Resources Control Board convened a Technical Advisory Committee (TAC) in the early 1990's in response to the 1987 Federal Clean Water Act. The Clean Water Act required specific efforts to address non-point source pollution, of which the Technical Advisory Committee for Onsite Sewage Disposal Systems was one element.

The Technical Advisory Committee was comprised of state regulators, county health officers, private wastewater consultants and academicians, including Dr. Dennis Rolston of the Department of Land, Air and Water Resources at U.C. Davis, who provided valuable services to Butte County's technical team. Also participating was Norman Hantzsche, P.E., of Questa Engineering Corporation, who co-authored the equation for predicting ground water nitrate subsequently used by the Regional Board in justifying the Chico-area prohibition order. (See section 3.4 for further discussion of the Hantzsche Equation.)

The Technical Advisory Committee recommended five major management strategies to address potential pollution from onsite sewage disposal systems. Recommendations were:

1. Adopt local and regional policies and procedures for onsite disposal systems.

2. Site and design onsite disposal systems to protect groundwater and surface water.

3. Encourage implementation of programs by local agencies to assure adequate system operation and to     upgrade deficient systems.

4. Develop an oversight monitoring program where necessary to assure protection of water quality.

5. Develop policies and regulations which provide for the analysis of cumulative impacts from onsite disposal systems.

Use of Onsite Systems in Butte County

Butte County is largely rural in nature, with approximately 54% of the County's 204,260 residents living outside the limits of the incorporated cities of Chico, Paradise, Oroville, Gridley and Biggs. There are over 41,000 onsite systems in the County, the overwhelming majority of which are individual septic tank and leach field systems. Many of the County's onsite systems serve the unsewered communities of Paradise, Durham, Cohasset, and Forest Ranch, as well as the unincorporated portion of the Chico Urban Area.

The primary problem resulting from the use of septic systems in the Chico Urban Area is the contamination of groundwater by nitrate. Most California septic systems are in areas of low development densities, typically single family homes on lots greater than one acre. The Chico Urban Area population of approximately 85,000 includes about 35,000 of which 12,000 units are affected by the Prohibition Order. There are also many commercial and other non-residential facilities served by septic systems in the Chico area. Additionally, the Chico Urban Area has dwelling unit densities of over 15 units per acre and fairly widespread development on the order of 8-10 units per acre. Although septic systems in this area are subject to surface failure, this problem does not appear to be widespread primarily because of the fast percolating soils in the area.

2.5 Regulatory Actions in the Chico Urban Area

Nitrate Action Plan

In response to an order of the Regional Board (Resolution 84-074), Butte County and the City of Chico prepared a "Nitrate Action Plan" in 1985 to address the nitrate problem in the Chico Urban Area. The Nitrate Action Plan addresses density limits on developments in the Chico Urban Area. The plan was subsequently amended in 1988 to establish a proposed sewer time line for affected areas.

Following time extensions granted by the Regional Board, preparation of a draft sanitary sewage plan, storm drainage plan, and financial plan were completed in late 1987. The City of Chico has subsequently adopted the sanitary sewer master plan. The draft financial plan and storm drainage plan have never been adopted.

In response to the plan the City and County have limited installation of new septic systems, banned dry wells used for storm water disposal, have worked to make alternate water supplies available, and have adopted water well ordinances requiring sealing of wells to prevent interconnection of contaminated and uncontaminated aquifers. However, there have been problems and differences concerning interim development density and the provision of sewers to problem areas.

Originally, the City and County adopted different density limitations for new development on septic tanks. The City's version limited new single-family residential development to one dwelling unit per acre and other developments to 375 gallons per acre per day. The County plan limited the density of new subdivisions to three units per acre.

In 1988, the County and City adopted a revised Nitrate Action Plan incorporating the requirement for Regional Board approval of a sewer time line on all developments of greater than one unit per acre. The amended plan achieved consistency between the County and City on development densities, and incorporated areas in the northwest urban area into the City's sewer service area which were previously excluded from sewer service.

Currently, both the County and City administer the Nitrate Action Plan. However, the basin plan amendment is the primary tool that limits development in the urban area and prevents further degradation of the aquifer.

The versions of the Nitrate Action Plan adopted by the County and City are identical except for a final paragraph within the County's plan addressing annexation to the City of Chico. The County's adopted version includes the following paragraph:

V. Annexation to the City of Chico

The City of Chico shall not require that property owners be annexed to the City, or agree to waive their rights to protest annexation to the City in order to be connected to the sewer collection system and the water pollution control plant.

A copy of the Nitrate Action Plan as adopted by Butte County appears as Appendix N at the back of this document. Once adopted, the Nitrate Compliance Plan will supersede the Nitrate Action Plan. Elements of the Nitrate Action Plan (regarding septic tank installation standards in the Chico Urban Area) proposed to remain in effect after the adoption of the Nitrate Compliance Plan are shown in Appendix O.

Regional Board Prohibition Order

Due to the Regional Board's perception that the Nitrate Action Plan was not being implemented in a timely manner, and due to the fact that significant portions of the shallow aquifer were being contaminated and would continue to be contaminated, the Regional Board established a prohibition on individual disposal systems in the Chico Urban Area. The prohibition called for the cessation of the installation of new individual disposal systems after July 1, 1988, and the elimination of existing systems on lots of less than one acre after July 1, 1993.

The order was protested to the State Board which established a review committee to examine the basis for the prohibition. The findings of the committee supported the prohibition. However, the dates contained in the original prohibition were by that time unachievable. Therefore, the order was readopted in 1990 with revised dates of July 1, 1990, and July 1, 1995, respectively. A copy of the Prohibition Order (Regional Water Quality Control Board Order No. 90-126) is included herein as Appendix C.

Recent Requirements of the Regional Board

At its meeting in January 1995, the Regional Board received a verbal progress report from its staff and Butte County, and subsequently adopted Resolution No. 95-024 (attached as Appendix D). At the County's request, this resolution deferred enforcement action relative to the Prohibition Order to allow time for the County to complete an implementation plan setting forth in detail local plans for compliance with the groundwater nitrate standards.

Specifically, Butte County agreed to the following conditions of the Regional Board's deferral of enforcement action:

1. Present summary results of the technical program and the foundational logic underlying the action items set forth in the balance of the plan.

2. Creation of a feasibility plan and cost estimates to address sewering for the purpose of defining sewering costs and methods.

3. Presentation of a plan delineating the areas where sewering is proposed and areas where alternatives to sewering or "no action" is appropriate.

4. Presentation of a plan and implementation schedule for providing sewer service to those areas planned to be sewered.

5. Description of a plan and implementation schedule for the installation and operation of mechanisms for additional nitrate removal by available appropriate technology in those areas where it can be shown that the on-site systems will protect present and future beneficial uses.

6. Present a plan and implementation schedule for establishment of a public entity to oversee the operation and maintenance of onsite wastewater systems.

7. Set forth land use policies and development regulations for the subject area which support and are consistent with each component of the Plan.

8. Develop a program for the training and certification of designers, plan checkers, inspectors, repair and maintenance persons, pumpers and others involved in onsite wastewater processes.

The County has subsequently endeavored to complete the referenced work in accordance with the deferral resolution and has continued to involve Regional Board staff in each effort. The current status of Butte County responses to each of the Regional Board's conditions is summarized in the following Table 2-1.

In considering proposals from Butte County, the Regional Board is itself constrained by applicable provisions of the Porter-Cologne Water Quality Control Act, which state:

Limitations of prohibitions. Where it appears that adequate protection of water quality, protection of beneficial uses of water, and prevention of nuisance, pollution, and contamination can be attained by appropriate design, location, sizing, spacing, construction and maintenance of individual disposal systems in lieu of elimination of discharges from such systems, and where an authorized public agency provides satisfactory assurance to the regional board that such systems will be appropriately designed, located, sized, space, constructed, and maintained, such discharges shall be permitted so long as such systems are adequately designed, located, sized, spaced constructed, and maintained.  --§13282 of the Porter-Cologne Water Quality Control Act

Prohibition against specifying manner of compliance; exceptions. (a) No waste discharge requirement or other order of a regional board or the state board or decree of a court issued under this division shall specify the design, location, type of construction, or particular manner in which compliance may be had with that requirement, order or decree, and the person so ordered shall be permitted to comply with the order in any lawful manner. . .--§13360 of the Porter-Cologne Water Quality Control Act (relevant portion)

Section 13282 and Section 13360 of the Porter-Cologne Water Quality Control Act appear to provide a statutory vehicle to negotiate the County's response to the Prohibition Order.

Potential Enforcement Actions by the Regional Board.

To date the sole action by the Regional Board has been to establish the basin plan amendment (prohibition) against the use of septic tanks in the Chico Urban Area. This order is not an enforcement action in and of itself, but sets the stage for potential enforcement actions. Should it be necessary to enforce compliance because of, for example, a lack of responsiveness or progress on the part of the County, termination of the Implementation Plan at public referendum, or failure of an essential component to win voter approval, the Regional Board may choose to proceed with enforcement actions.

The Water Code gives the Regional Board broad authority and mechanisms for enforcement to prevent the degradation of both surface water and groundwater. Failure of a discharger to comply with a prohibition order may be followed by enforcement actions as prescribed by the Water Code and implemented by the Regional Board, Attorney General, and the courts. In this instance, the role of Butte County as the representative of approximately 12,000 individual dischargers would cease and enforcement actions could be taken directly against each discharger.

Enforcement actions authorized by the Water Code fall into two basic categories: those that direct future actions by dischargers and those that address past violations. Actions which generally direct future action include imposition of time schedules (§13300) issuance of Cease and Desist Orders (§13301-13303) and Cleanup and Abatement Orders (§13304). Actions taken to address past violations include administrative civil liability (§13350), and referral to the Attorney General or District Attorney (§13331 and 13305).

The Cleanup and Abatement Order is generally used when there has been a specifically identifiable discharge and discharger, and the contaminated water (groundwater or surface water) can be cleaned up. Although the shallow groundwater in the Chico Urban Area is arguably susceptible to cleanup, a treatment system to accomplish this would likely be exorbitantly expensive. However, it is within the scope of the Water Code and the purview of the Regional Board to require such a cleanup.

If the prohibition order was not complied with, the most likely enforcement scenario is the Cease and Desist Order which is the type of order that has been used in similar circumstances in the past. The largest action of such a type within the Central Valley Regional Water Quality Control Board was the issuance of approximately 900 individual Cease and Desist Orders to the residents of the Town of Cottonwood, Shasta County, in the early 1980's.

Table 2-1 Summary of Responsiveness to Regional Water Quality Control Board Requirements

The establishment of either of the above two orders sets the stage for administrative or judicial civil liability (fines) for failure to comply. Prior to the issuance of a Cease and Desist Order or a Cleanup and Abatement Order, the Regional Board has no individual discharger against which to initiate liability. The fines for failure to comply with a Cease and Desist Order range from a minimum of $100 per day to a maximum of $1,000 dollars per day (administrative liability) or to a maximum of $10,000 dollars per day under the judicial civil liability process. Failure to comply with a Cleanup and Abatement Order may result in a minimum fine of $500 per day to as much as $15,000 per day if imposed by the court.

Failure to pay an adopted civil liability could result in criminal charges, but would most likely result in a lien being placed on the discharger's property making it effectively unsalable.

2.6 Role of County Service Area 114

County Service Area 114 has played a pivotal part in recent progress in resolving the Chico Urban Area's groundwater nitrate issue. The funds generated by annual assessments on approximately 10,000 parcels have enabled all of the studies and other efforts made during the last five years. A map of CSA 114 is provided in Appendix P.

Scope of Authorized Activities

The Nitrate Action Plan required the County to form a county service area (CSA) implementing the objectives and actions of the Plan. Formation of the CSA was approved by the Local Agency Formation Commission (LAFCo) on November 3, 1988 and by the Board of Supervisors on December 20, 1988. The title given to the CSA was County Service Area 114 (CSA 114).

Initially, CSA 114 was empowered and utilized to finance a nitrate well monitoring program and financing for feasibility and planning studies for possible future actions related to the Nitrate Action Plan. The powers of the CSA were subsequently expanded by LAFCo on June 6, 1991 and by the Board of Supervisors on September 17, 1991 as set forth in Resolution 91-108:

"5. The types of extended county services to be provided within said area in addition to those authorized by Resolution No. 88-194 adopted by the Board of Supervisors on December 20, 1988, are: sewer service, drainage control and road maintenance, limited to the preparation of detailed engineering studies dealing with the design of wastewater and storm water collection, transportation, disposal and drainage facilities and structures to protect the quality of groundwater in the area."

It is through CSA 114 that funds have been raised to prepare the scientific studies to determine the credibility of the previous assertions regarding the nitrate contamination of the groundwater and its relationship to septic systems in the Chico Urban Area. CSA 114 was also the funding mechanism for the preparation of sewer feasibility studies for three key areas which have been identified as requiring sewer service. Any expansion of powers beyond those currently specified would require review and approval by the Board of Supervisors and LAFCo.

At its inception, CSA 114 incorporated all parcels within the unincorporated area of the Sphere of Influence of the Chico Urban Area. Included within the CSA were tracts of undeveloped land which developed over time. At the time of development, several of these properties were connected to the sewer and developed apermanent solution to drainage. In some cases, these properties were annexed to the City of Chico.

In June of 1994 the Board of Supervisors acted to place those parcels within CSA 114 which were connected to sewer and had a permanent solution for drainage into a separate zone of benefit which carried no assessment. The Local Agency Formation Commission also instituted a new procedure in which all parcels which had sewer and a permanent solution to drainage would be removed from CSA 114 at the time of annexation to the City of Chico.

At its September 14, 1999 meeting, the Board of Supervisors amended its policy regarding the assessment of parcels within CSA 114. The new policy simplifies the criteria for a parcel to be charged the assessment. Only parcels within CSA 114 that utilize on-site septic systems will continue to be assessed the parcel fee. All parcels that receive sewer service will not be charged the assessment. In accord with Regional Board's staff's letter of August 18, 1999, the storm drainage concern, as addressed in the Nitrate Action Plan, is no longer an issue. The Regional Board's letter and a memorandum from the County Administrative Office which addresses the policy change for the assessment of parcels within CSA 114 is provided in Appendix K.

Summary of Activities and Expenditures

The activities and expenditures of CSA 114 reflect the central mission and scope of authority originally approved and later expanded by the Board of Supervisors and the Local Agency Formation Commission. All expenditures were properly authorized by the Board of Supervisors or, with certain smaller expenses, by the Administrative Office.

Most expenditures have been for professional services in project management, research, hydrogeology, soil chemistry, engineering, and related activities. Other funded activities of note include the study of recirculating trickling filters (RTF), formation of the Greater Chico Urban Area Redevelopment Project and, early on, reimbursement of an agreed share of costs for the Sanitary Sewer Master Plan and Storm Drainage Master Plan.

The potential for statewide application of a successful and cost-effective recirculating trickling filters retrofit to existing septic systems persuaded the State Water Resources Control Board to award a $15,000 state grant to the County for the recirculating trickling filters study. The state's payment from the State Water Resources Control Board's Cleanup and Abatement Fund, was received by the County in June of 1996.

The funds expended from CSA 114 related to formation of the redevelopment project area are committed to be reimbursed from tax increment funds. Further, the Chico Redevelopment Agency has agreed to reimburse CSA 114 for the cost of the sewer feasibility studies. Table 2-2 summarizes the assessments, revenues and expenses through CSA 114 from its 1989 creation.

Table 2-3 summarizes the description of revenues and expenditures through CSA 114 since 1989. This table breaks out total expenditures through CSA 114 since 1989 for revenue spent on environmental monitoring costs, engineering feasibility studies, technical review consultation costs, and planning and project management expenses.

For more detailed information on CSA 114 fund expenditures refer to Tables 1 and 2 in Appendix Q. In this appendix Table 1 describes in greater detail CSA 114 fund expenditures per fiscal year. Table 2 describes in greater detail CSA 114 fund expenditures per project category.

[Refer to the following pages for Tables 2-2 and 2-3].

Table 2-2 CSA 114 Revenue and Expenditures, 1989-1997

Table 2-3. CSA 114, Description & Amounts of Expenditures per Category (1989-1999)

(a) Environmental Monitoring, Studies & Fees - Includes well construction and installation, monitoring costs, permit fees, nitrate characterization study, and hydrologic and soils investigations.

(b) Project Management - Includes administration of consultant contracts, preparation of work plans, interfacing with regulatory and local agencies, providing administrative support to County staff, and administering to the Citizens Nitrate Advisory Committee.

( c) Environmental Impact Report (EIR) & Planning Related Services - Includes preparation of sewer and storm drain master plans, City of Chico EIR study, formation of City/County Redevelopment Agency (i.e. Greater Chico Urban Area Redevelopment Project Agency), sewer financing study, and strategic planning.

(d) Engineering Services and Sewer Feasibility Studies - Includes sewer feasibility cost estimates for areas north and south of Lindo Channel and associated engineering related technical memoranda.

(e) Technical Review and Special Research - Includes technical peer review of groundwater monitoring studies, other technical studies, training and seminars.

(f) Butte County service costs - Includes staff time/support from Administrative Office, Auditor's Office, County Counsel, Environmental Health, Development Services & Public Works.

(g) Miscellaneous support services - Includes office supplies, materials for Citizens Nitrate Advisory Committee, printing and mailing costs, legal notices, and public outreach.