FINDINGS FOR THE PUERTO RICO COASTAL NONPOINT PROGRAM FOREWORD This document contains the findings for the coastal nonpoint pollution control program submitted by the Commonwealth of Puerto Rico pursuant to Section 6217(a) of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA). The findings are based on a review of the Puerto Rico Coastal Nonpoint Program, Final Program Submittal, October 31, 1995. The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Environmental Protection Agency (EPA) reviewed this information and evaluated the extent to which it conforms with the requirements of CZARA. NOAA and EPA commend the Commonwealth on the substantial amount of time and effort put into developing your program and we appreciate the commitment you have shown to complete an ambitious task with limited resources. We will continue to work with coastal states and territories to ensure that these findings represent an accurate assessment of current state and territory abilities and efforts to address coastal nonpoint source pollution. We recognize that there may be further administrative changes to the coastal nonpoint program that will impact these findings and we assure you that, once such changes are finalized, we will review these findings in light of the changes and make any necessary adjustments. APPROVAL DECISION NOAA and EPA approve the coastal nonpoint pollution control program submitted by the Commonwealth of Puerto Rico pursuant to Section 6217(a) of the Coastal Zone Act Reauthorization Amendments of 1990, subject to certain conditions. This document provides the specific findings used by NOAA and EPA as the basis for the decision to approve the Commonwealth's program. It also provides the rationale for the findings and includes conditions that will need to be met for the Commonwealth to receive final approval of its program. The timeframes associated with conditions become effective on the date of the approval letter for these findings. INTRODUCTION This document is organized by the major nonpoint source categories and subcategories identified in the section 6217(g) guidance and the administrative elements identified in the program guidance (including the boundary for the 6217 management area). Where appropriate, NOAA and EPA have grouped categories and subcategories of management measures into a single finding. The structure of each finding follows a standard format. Generally, the finding is that the Commonwealth's program includes or does not include management measures in conformity with the (g) guidance and includes or does not include enforceable policies and mechanisms to ensure implementation. In some cases, the finding reflects that the Commonwealth has identified a back-up enforceable policy, but has not yet demonstrated the ability of the authority to ensure implementation. For further understanding of terms in this document, the reader is referred to the following: Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters (EPA, January 1993) Coastal Nonpoint Pollution Control Program: Program Development and Approval Guidance (NOAA and EPA, January 1993) Flexibility for State Coastal Nonpoint Programs (NOAA and EPA, March 1995) The references in this document refer to the Puerto Rico Coastal Nonpoint Program, Final Program Submittal, October 31, 1995 ("program submittal"). NOAA and EPA have written this document as succinctly as possible. We have relied upon, but do not repeat here, the extensive information that Puerto Rico has included in its program submittal. Further information and analysis is contained in the administrative record for this approval decision and may be reviewed by interested parties at the following locations: EPA/Office of Wetlands, Oceans and Watersheds Assessment & Watershed Protection Division Nonpoint Source Control Branch 401 M St., SW (4503-F) Washington, DC 20460 Contact: Ed Drabkowski (202-260-7009) NOAA/Office of Ocean and Coastal Resource Management Coastal Programs Division SSMC-4, N/ORM3 1305 East West Highway Silver Spring, MD 20910 Contact: Bill O'Beirne (301-713-3109 x160) EPA Region II (2WMWSP) 290 Broadway New York, NY 10007-1866 Contact: Donna Somboonlakana (212-637-3700) I. BOUNDARY FINDING: Puerto Rico has included the entire Commonwealth as the management area within which it will implement the coastal nonpoint program. Therefore, Puerto Rico's boundary is sufficient to control the land and water uses that have or are reasonably expected to have a significant impact on the coastal waters of Puerto Rico. II. AGRICULTURE FINDING: Puerto Rico's program includes management measures in conformity with the 6217(g) guidance. Puerto Rico's program includes specific enforceable policies for the irrigation measure and the Commonwealth has proposed specific enforceable policies and mechanisms to ensure implementation of the erosion and sediment control and confined animal facilities management measures, but has not completed development of these authorities. The Commonwealth has identified back-up enforceable policies and mechanisms for the nutrient management, pesticide management, and grazing management measures, but has not yet demonstrated the ability of these authorities to ensure implementation throughout the 6217 management area. CONDITION: Within three years, Puerto Rico will include in its program enforceable policies and mechanisms to ensure implementation of the erosion and sediment control and confined animal facilities management measures. Within one year, Puerto Rico will develop a strategy (in accordance with Section XIV, page 18) to implement the nutrient management, pesticide management, and grazing management measures throughout the 6217 management area. RATIONALE: As described on pages V.A-1 through V.A-21 of the program submittal, Puerto Rico has identified best management practices (BMPs) to achieve implementation of the agricultural erosion and sediment control, confined animal facilities (large and small), nutrient and pesticide management, grazing and irrigation management measures. The Puerto Rico Law of Waters (12 L.P.R.A. 1501 et. seq.) provides specific enforceable authority to the Department of Natural and Environmental Resources (DNER) to issue permits and franchises to implement the irrigation measures. In addition, Puerto Rico has proposed a Sediment and Erosion Control Regulation (CES Regulations) to implement the erosion and sediment control management measure. The proposed CES Regulations would expand the scope of the current erosion and sediment control requirements. Agricultural practices and methods would be excluded from the application of the regulations, provided that best management practices for the prevention of erosion recommended by the Natural Resources Conservation Service (NRCS), Department of Agriculture (DA) and Agriculture Extension Service (AES) are implemented. As described on page V.A-6 of the program submittal, Puerto Rico's Environmental Quality Board (EQB) will implement the confined animal facilities management measures through the issuance of permits for animal waste facilities pursuant to the proposed Animal Fecal Waste Control Regulation (AFWCR) for controlling animal fecal waste as well as proposed Guidelines for the Construction, Operation, Maintenance and Emergency Measures for Animal Fecal Waste Management Systems in Livestock Enterprises (AFWCR Guidelines). The AFWCR will apply to any confined animal facility that generates five cubic feet of animal fecal waste per day or more, and therefore to all facilities to which the 6217(g) confined animal facility measures apply. Although the AFWCR and AFWCR Guidelines are both subject to additional review and revisions, it is the stated intent of the EQB to have these authorities fully achieve the 6217(g) measures for confined animal facilities. Puerto Rico's program submittal identifies the Pesticides Act of Puerto Rico (5 L.P.R.A. 1001 et seq.) and the Commonwealth's Management Plan for the Control of Pesticides in Ground Water, Final Draft, 1995 as enforceable policies and mechanisms to ensure implementation of the pesticide management measure. However, Puerto Rico has not clearly established the links between these authorities and implementation of the specific (g) measure elements and consequently has not demonstrated how these authorities can ensure implementation of the pesticide management measure throughout the 6217 management area. Puerto Rico's program submittal also identifies backup authorities (Public Policy Environmental Act 12 L.P.R.A. 1121 et seq. and Water Quality Standards Regulation, General Prohibition Clause Articles 6.1, 6.1.1, and 6.1.2) to implement the agricultural management measures. The Water Quality Standards Regulation provides that "no person shall cause or allow the pollution [the altering of the chemical, biological or radioactive characteristics of waterbody directly or indirectly in such a manner as to interfere with the enjoyment of life and property or violate the water quality standards] of the waters of Puerto Rico." In addition, the regulations define pollutants to include "domestic animal or agricultural waste, or any substance or material including sediments and other substances carried by stormwater runoff...." Persons convicted of any violation of the regulation are subject to fines. However, the Commonwealth has not yet demonstrated the ability of these authorities to ensure implementation of the measures throughout the 6217 management area. To strengthen its program, the Commonwealth has proposed an Executive Order that would make the 6217(g) measures official policy of Puerto Rico and mandate their implementation though existing Commonwealth authorities. When approved, the Executive Order would require lead agencies to incorporate the 6217(g) measures into their existing decision- making processes within two years of approval. The Executive Order would require that agencies providing financial or other assistance to agricultural operations ensure that the management measures are complied with on those farms. We encourage Puerto Rico to complete its efforts to develop the Executive Order, the CES Regulations, and the AFWCR and AFWCR Guidelines, as these will provide more specific enforceable policies and mechanisms to ensure implementation of the agricultural management measures. III. FORESTRY FINDING: Puerto Rico has provided sufficient justification to support a categorical exclusion of forestry from its coastal nonpoint program. RATIONALE: As described on in section V.B of the program submittal, no significant silvicultural activity is known to exist or to be planned in Puerto Rico, with the possible exception of some limited activity by the U.S. Forest Service in the Caribbean National Forest. Timber is not considered an important use of Puerto Rico's forests, as illustrated by the extremely low annual harvest volumes (1,700 board feet in 1993) occurring on state forests, and no established timber industry exists in the Commonwealth. Most, if not all, silvicultural activity occurs in the interior of the island, away from coastal waters. Finally, silviculture has never been identified as a source of pollution in Clean Water Act Section 305(b) reports. Based on the above factors, forestry does not and is not reasonably anticipated to present significant adverse impacts to coastal waters. IV. URBAN A. NEW DEVELOPMENT FINDING: Puerto Rico's program does not include management measures in conformity with 6217(g) guidance for new development. Puerto Rico's program includes enforceable policies and mechanisms to implement the new development management measure, except that certain authorities apply only to a limited number of activities subject to the management measures. Puerto Rico has also identified back-up enforceable policies and mechanisms to implement the new development management measure, but the Commonwealth has not yet demonstrated the ability of these authorities to ensure implementation throughout the 6217 management area. CONDITION: Within three years, Puerto Rico will include in its program management measures for new development. Within one year, Puerto Rico will develop a strategy (in accordance with Section XIV, page 18) to implement the new development management measure throughout the 6217 management area. RATIONALE: The Regulation for the Use, Surveillance, Conservation and Management of the Territorial Waters, Submerged Lands Thereunder and the Maritime Zone (Maritime Zone Regulations) (article 5.4) provides authority to implement the new development management measure within the rather limited Maritime Zone. Outside of this area Puerto Rico has a number of programs, permit review processes and authorities that are used to evaluate new development. As described in Chapters IV and V of the program document and Appendix W, most new development on the island must receive a permit from either the Planning Board or Regulations and Permits Administration (RPA) pursuant to the Zoning Regulations of Puerto Rico (Zoning regulations), the Zoning Regulations for the Coastal Zones and The Access to Beaches and Coasts of Puerto Rico (Zoning Regulations for the Coastal Zone), and the Subdivision and Urbanization Regulations (Subdivision Regulations). The Planning Board issues special use permits for activities not permitted by right or in unzoned areas, while the RPA issues by right permits (ministerial actions). The 1995 Goals and Policies of the Land Use Plan (Policies 30.01, 30.02 and 30.07), which govern the Zoning regulations, subdivision and urbanization and building regulations, as well as section 15 of the Subdivision Regulations; section 3.06 of the Zoning Regulations for the Coastal Zone, and the Regulation for Environmental Impact Statements all provide for the evaluation and consideration of stormwater runoff in the decision making process. However, none of the authorities contain specific measures or performance standards for post development stormwater runoff in conformity with the 6217(g) guidance. While Puerto Rico has identified this planning and regulatory framework (as well as the Public Policy Environmental Act, 12 L.P.R.A. 1121 et seq. and Water Quality Standards Regulation, described in the Agriculture section above), the Commonwealth has not clearly described or otherwise demonstrated the ability of these authorities to ensure implementation of the measures throughout the 6217 management area. On page V.A-23 of the program submittal, Puerto Rico indicates that, because of the unique characteristics of Puerto Rico, the measures for reducing post-construction stormwater runoff pollutant loadings, rates and volumes for new development will "require significant additional study and analysis" before it can be determined how implementation of the new development measure can be achieved. At this time, Puerto Rico has not provided any analysis or recommendations on how the goals of the management measure will be met. NOAA and EPA would like to work with Puerto Rico to determine the appropriate means for implementing the new development management measure; the above condition provides the Commonwealth with time to carry out the necessary analyses. B. WATERSHED PROTECTION AND SITE DEVELOPMENT FINDING: Puerto Rico's program includes management measures in conformity with 6217(g) guidance for watershed protection and site development except that the measure for limiting the disturbance of natural drainage features does not apply throughout the 6217 management area. Puerto Rico's program includes enforceable policies and mechanisms for watershed protection. Puerto Rico's program also includes enforceable policies and mechanisms to implement the site development management measure, except that certain authorities apply only to a limited number of activities subject to the management measures. Puerto Rico's program also identifies back-up enforceable policies and mechanisms to implement the site development management measure, but the Commonwealth has not yet demonstrated the ability of these authorities to ensure the implementation throughout the 6217 management area. CONDITION: Within three years, Puerto Rico will include in its program management measures in conformity with the 6217(g) guidance for limiting the disturbance of natural drainage features. Within one year, Puerto Rico will develop a strategy (in accordance with Section XIV, page 18) to ensure implementation of the site development management measure throughout the 6217 management area. RATIONALE: Puerto Rico's program includes a number of measures to avoid the conversion of highly erodible areas, preserve areas providing water quality benefits, and limit impervious surfaces. The 1995 Goals and Policies of the Land Use Plan includes general policies to control sources of pollution and reduce adverse impacts on natural resources (policy 30.01), control land development activities, construction and subdivision that may adversely impact water quality, including controlling excessive paving, clearing and grubbing, removal of vegetation and earth moving (30.02), and to avoid activities that may create a deterioration or destruction of natural systems that are critical for the preservation of the environment, such as wetlands or flood plains (30.03, 30.05). However, the 1995 Goals and Policies of the Land Use Plan lacks policies to specifically limit the disturbance of natural drainage features. Within the Coastal Zone, the Zoning Regulations for the Coastal Zone include a general provision to retain natural vegetation, topography and coastal forms on-site (3.08); establish protective coastal management zoning districts for mangroves (15), conservation of resources (17), and preservation of resources (22), which restrict or prohibit development that would adversely affect natural resources. The Zoning Regulations for the Coastal Zone also prohibit subdivisions, projects or development within Natural Reserves Areas designated and adopted by the Planning Board, where development could destroy and/or degrade natural reserve areas (3.06). The Planning Board has adopted a Special Area Management Plan for mangroves (as summarized in Appendix Q) and other natural resources areas to provide additional management and protection of these resources (as described in Chapter IV of the program submittal). Within the Maritime Terrestrial Zone (MTZ), projects must avoid impacts to wetlands generally (Art 5.4(B)) and identify wetlands, submerged aquatic vegetation, and areas susceptible to erosion as inappropriate locations for development (Art. 6.1). The Puerto Rico Zoning Regulations and Subdivision Regulations (as described in Appendix W and the Environmental Law Handbook of Puerto Rico), the Zoning Regulations for Coastal Zone, the Watershed Protection Act (12 L.P.R.A. 231- 235) and Regulation for the Use, Surveillance, Conservation and Management of the Territorial Waters, Submerged Lands Thereunder and the Maritime Zone, provide the enforceable policies and mechanisms for implementing the watershed protection management measure. In its program submittal, Puerto Rico states that its Water Resources Committee (WRC) is attempting to "integrate all the existing statutory, regulatory and policy mechanisms that directly or indirectly call for watershed protection into a coherent program." NOAA and EPA encourage the Commonwealth to pursue these efforts to further implement the watershed protection management measure. With regard to site development, Puerto Rico's planning and regulatory framework described above generally applies throughout the 6217 management area. However, the authorities cited include numerous exemptions, exceptions and exclusions, which individually would exempt activities subject to the management measures. Furthermore the Commonwealth has not demonstrated that, taken together, the authorities would provide coverage for all applicable activities. Puerto Rico has identified backup authorities, including the Water Quality Standards Regulation (described in the Agriculture section above), but has not clearly described or otherwise demonstrated the ability of these authorities to ensure implementation of the measures throughout the 6217 management area. C. CONSTRUCTION SITE EROSION AND SEDIMENT and CHEMICAL CONTROL FINDING: Puerto Rico's program does not include management measures in conformity with the 6217(g) guidance for construction site erosion and sediment control and construction site chemical control. The Commonwealth's program does not include enforceable policies and mechanisms to ensure implementation of the management measures throughout the 6217 management area. CONDITION: Within three years, Puerto Rico will include in its program management measures in conformity with the 6217(g) guidance for construction site erosion and sediment control and construction site chemical control. Within three years, Puerto Rico will include in its program enforceable policies and mechanisms to ensure implementation of the construction site erosion and sediment control and construction site chemical control management measures throughout the 6217 management area. RATIONALE: As explained in discussions with Puerto Rico staff, Puerto Rico uses its 1977 Manual of Standards and Specifications for the Control of Soil Erosion and Sedimentation for selection of BMPs and as the basis for certification of plans. However, the Manual was not included in the submittal and it is our understanding that the Commonwealth does not have any performance standards, consistent with minimizing erosion and retaining sediment on site, upon which to base approval of plans and selection of practices. According to Puerto Rico, the Regulations for the Control of Atmospheric Pollution; and the State Implementation Plan for Air Pollution Control, Regulations for Certification of Plans and Documents and the Interagency Agreement For the Implementation of the Soil Erosion and Sedimentation Control Program provide the enforceable policies and mechanisms to implement the management measures. Puerto Rico asserts that the Regulations for the Control of Atmospheric Pollution and the State Implementation Plan for Air Pollution Control require erosion and sediment control plans to be developed for all urban area sources, roads, parking lots, and construction sites for construction projects in lots greater than .22 acres. The plans must submitted to EQB for certification pursuant to the Regulations for Certification of Plans and Documents. To be certified, the erosion and sediment control plans must be consistent with BMPs outlined in the EQB's 319 nonpoint program pursuant to the Regulations for the Control of Atmospheric Pollution and the Interagency Agreement For the Implementation of the Soil Erosion and Sedimentation Control Program. However, the Commonwealth has not provided NOAA or EPA with documentation regarding the Regulations for the Control of Atmospheric Pollution; and the State Implementation Plan for Air Pollution Control. Within the Coastal Zone, construction activities that are conducted on sites one half acre or greater require the development, certification and implementation of an ESC plan (Zoning Regulations for the Coastal Zone 3.11). Coordination for submittal and review by specific agencies is set forth in the Interagency Agreement For the Implementation of the Soil Erosion and Sedimentation Control Program. Plans developed under these provisions are required to be certified by EQB pursuant to the Certification of Plans Act (23 L.P.R.A. 73 et. seq.). However, a review of the authorities indicate that construction activities that are not currently required to submit an erosion and sediment control plan include singe-family residential development, commercial developments with less than 10,000 square feet of floor space, and industrial developments with less than 15,000 square feet of floor space. The Commonwealth has proposed new erosion and sedimentation control regulations that would strengthen the current program and require that a new technical manual be issued within one year of promulgation of the regulations. NOAA and EPA encourage the Commonwealth to pursue passage of these regulations to provide for a stronger erosion and sedimentation control program. In its program submittal, Puerto Rico states that developers can be required to address chemical control in their erosion and sediment control plans. However, no additional information was provided on the specific management measures that are used to implement construction site chemical control. The Department of Natural Resources' Ranger Corps has authority to enforce against construction activities undertaken without approved plans. In addition, Puerto Rico has also identified its Water Quality Standards Regulation as backup enforcement authority to implement the measures. (See the discussion of water quality standards in the Agriculture section above) D. EXISTING DEVELOPMENT FINDING: Puerto Rico's program includes management measures in conformity with 6217(g) guidance for existing development, except that it does not include measures to limit destruction of natural conveyance systems throughout the 6217 management area or identify pollutant reduction opportunities and establish a schedule for the implementation of appropriate controls. Puerto Rico's program includes enforceable policies and mechanisms to implement the existing development management measure. CONDITION: Within three years, Puerto Rico will include in its program management measures to limit destruction of natural conveyance systems and identify priority pollutant reduction opportunities and establish a schedule for the implementation of appropriate controls in conformity with the 6217(g) guidance. RATIONALE: As described in Appendix W of the program document, Puerto Rico's Subdivision Regulations (PR#3) require that all projects requiring a siting or subdivision permit must establish and dedicate for public use a 5 meter buffer area adjacent to any waterbody on the site. In addition, the Regulations for the Management of Coastal Zones requires structures adjacent to shorelines to be setback from the MTZ (highest tide line including storm surges) not less that 50 meters. Puerto Rico's program includes the 1995 Goals and Policies of the Land Use Plan and Coastal Zone Management Regulation (PR#17) and Environmental Review Regulations which provide for the evaluation, consideration and minimization of impacts to natural drainage features and natural topography of the site (PR#17 3.08) when developing land use plans for the Commonwealth and issuing siting permits, subdivision and coastal zone permits. However, the provisions for minimizing impacts to natural drainage features applies only within the coastal zone. In addition, the Organic Act of the Planning Board (23 L.P.R.A. 62 et seq.) includes policies that require zoning regulations (districts) for the establishment of green belts. However, Puerto Rico's program does not include measures for identifying priority pollutant reduction opportunities and developing schedules to implement stormwater control projects for areas that are already developed. As described for new development above, Puerto Rico indicates that this management measure "needs to undergo significant discussion and review by concerned agencies' planning staff, and most probably, undergo a relatively long development and evaluation process before Puerto Rico can indicate for sure the details of its implementation." NOAA and EPA would like to work with Puerto Rico to determine the appropriate means for implementing the existing development management measure; the above condition provides the Commonwealth with time to carry out the necessary analyses. E. NEW and OPERATING ONSITE DISPOSAL SYSTEMS (OSDS) FINDING: Puerto Rico's program includes management measures in conformity with the 6217(g) guidance for new and operating onsite disposal systems except for: (1) denitrifying systems where nitrogen-limited surface waters may be adversely affected by excess nitrogen loadings from onsite systems; (2) adequate separation distances between OSDS and ground water for single family development; and (3) inspections of new and operating systems for single family development. Puerto Rico's program includes enforceable policies and mechanisms to ensure implementation throughout the 6217 management area. CONDITION: Within three years, Puerto Rico will include in its program management measures in conformity with the 6217(g) guidance for: (1) denitrifying systems where nitrogen-limited surface waters may be adversely affected by excess nitrogen loadings from onsite systems; (2) adequate separation distances between new single family OSDS and ground water; and (3) inspections of new and operating systems for single family development. RATIONALE: For multi-family (e.g. apartments condominiums), commercial, and industrial developments that include OSDS, Puerto Rico's program includes the Underground Injection Control Regulations and the Standards of Design for Wastewater Treatment Facilities and Construction Requirements for Groundwater Pollution Control Systems (as described on page V.A-38 of the program submittal), which address size, design, and location of OSDS and establish protective setback distances of systems and drainage fields from property lines, sources of water supply, streams, and separation distances of four feet from groundwater and buildings in conformance with the 6217(g) measures. These provisions, however, do not apply to single family systems. For single family residences using OSDS, the Regulation and Permit Administration's Building Regulations (PR#7) include provisions for the size, design, and location of individual sewage disposal systems, and establish protective setback distances of systems and drainage fields from property lines, sources of water supply, streams, and buildings. The regulations also provide for pre-and post inspections of the site to ensure standards are met. The Building Regulations, however, provide for only a two foot separation distance between drainage fields and groundwater, which does not conform to the (g) measures. The Underground Injection Control regulation provides for pre and post construction inspections. It also provides for inspections at the time operation permits are renewed and imposes monitoring and reporting requirements (302 -304). However, the frequency at which permits are renewed is not specified. The EQB can renew an operation permit for a septic tank per the Underground Injection Control regulation, rule 303 H.3.1.a), for reasons such as alterations or additions to the structure, the receipt of additional information not available at the time of permit issuance, or transfer of permits. Puerto Rico's program does not include provisions for denitrifying systems where nitrogen-limited surface waters may be adversely affected by nitrogen loadings from OSDS for either new or existing systems. NOAA and EPA encourage Puerto Rico to adopt the proposed Executive Order which will help address the above deficiencies by establishing the 6217(g) management measures as Commonwealth policy, which will then be implemented through the authorities identified above. F. POLLUTION PREVENTION FINDING: Puerto Rico's program includes management measures in conformity with the 6217(g) guidance. RATIONALE: The Puerto Rico Environmental Quality Board and Department of Natural and Environmental Resources participate in a number of educational efforts and pilot programs to address the components of this management measure, including the publication of brochures, a pilot program for household hazardous chemical collection and disposal, and a pilot program for used oil collection. G. ROADS, HIGHWAYS, AND BRIDGES FINDING: Puerto Rico's program does not include management measures for roads, highways, and bridges in conformity with the 6217(g) guidance. Puerto Rico includes backup enforceable policies and mechanisms to implement the management measures for roads, highways and bridges, but has not yet demonstrated the ability of these authorities to ensure implementation throughout the 6217 management area. CONDITION: Within three years, Puerto Rico will include in its program measures in conformity with the 6217(g) management measures for roads, highways, and bridges. Within one year, Puerto Rico will develop a strategy (in accordance with Section XIV, page 18) to implement these management measures throughout the 6217 management area. RATIONALE: Puerto Rico's programs to implement the management measures for planning, siting, and development do not specify procedures and criteria used in environmental reviews of proposed projects. Puerto Rico notes that federally funded projects must meet American Association of State Highway Transportation Officials (AASHTO) guidelines. However it should be noted that the AASHTO guidance does not necessarily provide for the implementation of all roads, highways, and bridges measures and specifically the post-development runoff measure. While the Federal Highway Administration (FHWA) rules do call for post-development controls, Puerto Rico did not specifically refer to those rules. For Commonwealth funded roads and highways, Puerto Rico plans to adopt the AASHTO Guidelines and FHWA Guidance (23 C.F.R. Part 650.211). For locally and privately funded projects, Puerto Rico has not identified what criteria and guidelines, if any, will be used in reviews. Puerto Rico plans to meet the management measures for construction site erosion and sediment control and chemical control by updating its Environmental Quality Board's 1977 Manual of Standards and Specifications for the Control of Soil Erosion and Sedimentation. The EQB will adapt the manual so that it may be used in conjunction with the proposed Regulation for the Control of Erosion and Sedimentation (see discussion under agriculture and urban construction site erosion control above). Also, the Commonwealth will need to include construction site chemical controls in the updated manual to meet the construction site chemical control management measure. Within the coastal zone, the Zoning Regulations for Coastal Zone (7.02) include an enforceable policy stating that new roads within the coastal zone must be designed and constructed, if possible, so that they will not affect the natural flow or drainage of the waters in such a way that adjacent ecosystems such as swamps and mangroves are adversely affected. However, the requirements do not specifically implement the 6217(g) measures nor do they cover the entire 6217 management area. Elsewhere, the present program is voluntary except where federally issued NPDES construction storm water permits are required (when 5 or more acres of land are disturbed). For a discussion of the Commonwealth's program to implement measures for construction site erosion and sediment control for roads highways and bridges, see the more general discussion of construction site erosion control (section IV. B above). According to the program document, the Department of Public Works and Highway and Transportation Authority plan to jointly establish a program to implement the 6217(g) management measures for all Puerto Rico roads, highways, and bridges, including planning, siting, development, bridges, operation and maintenance and runoff systems measures. The Department of Natural Resources' Ranger Corps has authority to enforce against projects operating without approved ESC plans. In addition, Puerto Rico has identified backup enforceable policies and mechanisms (see the discussion above of water quality standards, the proposed Executive Order, and environmental impact statement), but has not yet demonstrated the ability of these authorities to ensure implementation. V. MARINAS AND RECREATIONAL BOATING FINDING: Puerto Rico's program includes management measures in conformity with the 6217(g) guidance, except for the marina flushing, storm water runoff, fueling station design, liquid material management and boat operation management measures. Puerto Rico's program includes enforceable policies and mechanisms to ensure implementation of the marina and recreational boating management measures with the exception of the petroleum control, boat cleaning and boat operation management measures, for which Puerto Rico has identified backup enforceable policies and mechanisms, but has not yet demonstrated the ability of these authorities to ensure implementation throughout the 6217 management area. CONDITION: Within three years, Puerto Rico will develop management measures in conformity with the 6217(g) guidance for marina flushing, storm water runoff, fueling station design, liquid material management, and boat operation. Within one year, Puerto Rico will develop a strategy (in accordance with Section XIV, page 18) to implement management measures for petroleum control, boat cleaning and boat operation throughout the 6217 management area. RATIONALE: Puerto Rico's program includes The 1988 Guidelines for the Siting of Marinas in Puerto Rico and Guidelines for the siting of Marinas in Puerto Rico (Eastern Coast) (Marina Siting Guidelines), which are used by DNER in evaluating proposals for new marinas or modifications to existing marinas (see program submittal, p. V.A-56). As described in an executive summary and checklist in Appendix 2.A, the Marina Siting Guidelines include measures for the marina siting and design and boat operation measures. In addition, the Maritime Zone Regulations provide authority to ensure implementation, since new and existing marinas need to obtain a concession permit from the DNER in order to make use of any portion of the MTZ and submerged lands under the territorial waters of Puerto Rico. Concession permits are renewable on a periodic basis, thereby providing the ability to require operation and maintenance conditions for existing marinas. The Maritime Zone Regulations and Marina Siting Guidelines address water quality, habitat protection, shoreline erosion, solid waste, and maintenance of sewage facilities. The measures for petroleum control, maintenance of sewage facilities, and boat cleaning are addressed by the Boat and Harbor Act of 1970 with the Water Quality Standards Regulation as a backup authority. However, neither the Marina Siting Guidelines, nor the Maritime Zone Regulations provide specific measures in conformity with the 6217(g) guidance for marina flushing, storm water runoff, fueling station design, liquid material and boat operation management measures. Puerto Rico is proposing two additional approaches to enhance and ensure implementation of the complete suite of marina and recreational boating management measures. First, as previously discussed, the territory has proposed an Executive Order that would mandate implementation of the 6217(g) measures and make them official policy of Puerto Rico. Second, the Tourism Company of the Department of Economic Development and Commerce, has recommended that DNER and cooperating agencies develop a guidance document for the establishment of marinas that would establish the measures as minimum requirements for new marinas. Puerto Rico further intends to coordinate and incorporate the individual review procedures of the agencies listed above into a comprehensive Development Projects Permitting process, which will further facilitate the implementation of management measures. NOAA and EPA strongly encourage Puerto Rico to complete development of the guidance document and formalize the development review process in order to further implementation of all of the marina and recreational boating management measures in conformity with the 6217(g) guidance. VI. HYDROMODIFICATION FINDINGS: Puerto Rico's program includes management measures in conformity with the 6217(g) guidance, except it does not contain: (1) a process to improve surface water quality and restore in-stream and riparian habitat through the operation and maintenance of existing modified channels; (2) management measures for erosion and sediment control and chemical and pollutant control at dams; (3) management measures for protection of surface water quality and in-stream and riparian habitat from the effects of dams; and (4) management measures for shorelines and stream banks. Puerto Rico's program includes enforceable policies and mechanisms to ensure implementation, except for erosion and sediment control and chemical and pollutant control at dams. CONDITION: Within three years, Puerto Rico will include in its program (1) a process to improve surface water quality and restore in-stream and riparian habitat through the operation and maintenance of existing modified channels; (2) management measures for erosion and sediment control and chemical and pollutant control at dams; (3) management measures for protection of surface water quality and in-stream and riparian habitat from the effects of dams; and (4) management measures for shorelines and stream banks. Within three years, Puerto Rico will include in its program enforceable policies and mechanisms to ensure implementation of the management measures for erosion and sediment control and chemical and pollutant control at dams throughout the 6217 management area. RATIONALE: Puerto Rico evaluates the potential effects of channelization on physical, chemical characteristics of surface water and in-stream and riparian habitat for both new channelization activities and modification of existing channels through the Environmental Review Process pursuant to the Regulation for Environmental Impact Statements, siting permits pursuant to the Zoning Regulations (as described in Chapters IV and V and Appendix W), and for projects involving dredging, through Permits pursuant to the Regulation for the Extraction of Materials From the Earth Crust and through the Maritime Zone Regulations for dredging in the MTZ. These permit applications for new projects are reviewed for impacts on the natural integrity of water bodies and natural drainage systems. The Commonwealth intends to evaluate the DNER Flood Control Program, and programs in other agencies, to determine the extent to which the Commonwealth's programs can currently be used to identify opportunities to improve surface water quality and in-stream and riparian habitat through operation and maintenance of existing modified channels. Puerto Rico's program does not contain management measures for protection of surface water quality and habitat from the effects of dam operation, or management measures for shorelines and stream banks. The Commonwealth recognizes that it may need to develop some interagency agreements for development and implementation of the management measure for dams to protect surface water quality and in-stream and riparian habitat. The Commonwealth is also waiting for the completion of an island-wide coastal erosion study, and may develop an Action Plan for the management measure for shorelines and stream banks depending on the results. Finally, for a discussion of the Commonwealth's program to implement measures for erosion and sediment control for activities involving construction and maintenance at dams, see the more general discussion of construction site erosion control (section IV. B above). VII. WETLANDS, RIPARIAN AREAS and VEGETATED TREATMENT SYSTEMS FINDING: Puerto Rico's program includes management measures for protection of wetlands and riparian areas in conformity with the 6217(g) guidance, except that the measures apply within a limited area. The Commonwealth has identified backup enforceable policies and mechanisms for the management measure for protection of wetlands and riparian areas, but has not yet demonstrated the ability of these authorities to ensure implementation throughout the 6217 management area. Puerto Rico's program includes management measures in conformity with the 6217(g) guidance for wetlands restoration and for vegetated treatment systems. CONDITION: Within three years, Puerto Rico will include in its program management measures for the protection of wetlands and riparian areas in conformity with the 6217(g) guidance. Within one year the Commonwealth will develop a strategy (in accordance with Section XIV, page 18) to implement the management measure for protection of wetlands and riparian areas throughout the 6217 management area. RATIONALE: Puerto Rico's Maritime Zone Regulations include measures to protect wetlands generally within the maritime zone (Art. 5.4(B)). Within the coastal zone, Mangrove Districts, which include restrictions on the type and intensity of development, have been established for the protection of mangroves (15 of the Zoning Regulations for the Coastal Zones). The Planning Board has adopted a Special Area Management Plan (Appendix Q) which establishes supplemental requirements for development in or that would impact mangroves. Outside the Coastal Zone, the 1995 Goals and Policies of the Land Use Plan, which govern issuance of the siting and subdivision and urbanization permits pursuant to the Puerto Rico Planning Board Organic Act (62), include measures to avoid development in lands with important natural resources and environmentally critical areas (policy 30.03) as well as avoiding activities and subdivisions which could destroy or degrade essential natural systems (e.g. mangroves, submerged aquatic vegetation, etc. (policies 30.03 and 30.05). However, these measures do not apply to all applicable activities subject to the management measures. Riparian areas are provided protection through provisions for 5 meter buffers in the Subdivision Regulations (as described in Appendix W) and provisions for setbacks from the MTZ in the zoning regulations for the Coastal Zone (as described above for new development and existing development). While the protection of mangroves has received priority attention, along with specific policy to protect them, the commitment to protect riparian areas and other types of wetlands is less clear. It should be noted that (and NOAA and EPA support) Puerto Rico is currently undertaking efforts to develop a new Commonwealth wetlands policy and local standards for wetlands protection which reflect 6217 considerations, which when adopted would strengthen the Commonwealths wetlands protection. However, to date, none of the agencies involved in evaluating permit applications has formulated a specific policy for protection of wetlands other than mangroves. While NOAA and EPA acknowledge that the Commonwealth through the DNER and EQB may influence Corps decisions on 404 and 9/10 Rivers and Harbors Permits, it is our understanding that the Corps is not bound to include or enforce any DNER or EQB conditions recommended for Corps 404 permits through the endorsement process. Furthermore, it is our understanding that neither the DNER or the EQB can independently enforce (under Commonwealth law) any conditions on Corps permits recommended as part of the endorsement process. Similarly, NOAA and EPA acknowledge that the Commonwealth uses the 401 procedures to deny federal permits which would violate water quality standards and is also used to condition some activities to ensure that they are designed, constructed and operated to be consistent with Commonwealth Water Quality Standards. However, the Commonwealth has not demonstrated that it can independently enforce any conditions placed on the Corps permits. Management measures promoting restoration of wetland and riparian areas are implemented through the Commonwealth's environmental review process which requires restoration for mitigation of wetlands loss or degradation. Management measures promoting vegetative treatment systems are implemented through the Commonwealth's environmental permitting program, which promotes the application of vegetative BMPs for stormwater runoff. VIII. ADMINISTRATIVE COORDINATION FINDING: Puerto Rico's program establishes mechanisms to improve coordination among Commonwealth agencies and between Commonwealth and local officials. RATIONALE: As part of the coastal nonpoint program, the Commonwealth will activate the Water Resources Committee (Art.6 of the Act for the Conservation, Development and Wise Use of the Water Resources of Puerto Rico) and designate a Nonpoint Source Control Subcommittee which will oversee the implementation of the Commonwealth's program, and conduct evaluations, and produce achievement reports to be submitted to the Governor. The Subcommittee will consist of one permanent and one alternate staff member from each of the lead and coordinating agencies per the memoranda of agreement described below. In addition, Commonwealth agencies have developed Memoranda of Agreement related to the implementation of the coastal nonpoint program which set forth numerous activities regarding plan and permitting coordination, public education, etc. that the agencies will undertake. Finally, the proposed Executive Order would, if adopted, mandate coordination of the program among lead and cooperating agencies. IX. PUBLIC PARTICIPATION FINDING: Puerto Rico's program provides opportunities for public participation in the development and implementation of the of the coastal nonpoint program. RATIONALE: During the development of its coastal nonpoint program, the Commonwealth held several workshops in 1993 on management measures. The Commonwealth provided notice of availability of an informal consultation package that was used in program development discussion with NOAA and EPA and also made available comments on that package and final 6217 guidance documents. Puerto Rico has provided notice and opportunity to comment on the proposed Executive Order. In addition, the public has been provided notice of and opportunity to comment on the Coastal Nonpoint Program document submitted to NOAA and EPA. The Commonwealth envisions a number of public education projects related to the various source categories to educate the public on nonpoint source issues, the coastal nonpoint program requirements and solutions to nonpoint source pollution problems. X. TECHNICAL ASSISTANCE FINDING: Puerto Rico's program does not provide technical assistance to local governments and the public for implementing additional management measures. CONDITION: Within one year, Puerto Rico will include in its program a plan for providing technical assistance to local governments and the public for implementing additional management measures. RATIONALE: The program submittal does not include a separate discussion of technical assistance for local governments. While many of the programs described in the document provide for public outreach, education and (in some cases) assistance in implementation, there is not a specific discussion of how Puerto Rico intends to provide assistance to local governments for implementing additional management measures, where necessary. XI. ADDITIONAL MANAGEMENT MEASURES FINDINGS: Puerto Rico's program does not provide for the identification of additional management measures and the continuing revision of management measures applicable to critical coastal areas and cases where (g) measures are fully implemented but water quality threats or impairments persist. CONDITION: Within one year, Puerto Rico will provide for the identification of additional management measures and the continuing revision of management measures applicable to critical coastal areas and cases where (g) measures are fully implemented but water quality threats or impairments persist. RATIONALE: The Commonwealth has identified threatened and impaired waters (using 1990-1992 water quality data) but has not identified a process for identifying additional measures applicable to critical coastal areas. XII. CRITICAL COASTAL AREAS FINDING: Puerto Rico's program does not identify or include a process for the continuing identification of critical coastal areas adjacent to threatened or impaired waters. CONDITION: Within one year, Puerto Rico will identify and include a process for the continuing identification of critical coastal areas adjacent to threatened or impaired waters. RATIONALE: The Commonwealth has identified threatened and impaired waters (using 1990-1992 water quality data) but has not identified or included a process for the continuing identification of critical coastal areas adjacent to these threatened or impaired waters. XIII. MONITORING FINDING: Puerto Rico's program does not include a plan to assess over time the success of the management measures in reducing pollution loads and improving water quality. CONDITION: Within one year, Puerto Rico will develop a plan that enables the Commonwealth to assess over time the extent to which implementation of management measures is reducing pollution loads and improving water quality. RATIONALE: Puerto Rico states its intent to evaluate the effectiveness of the 6217 program and management measures, and provides an overview of its surface and coastal water quality monitoring networks. However, the Commonwealth does not describe how these programs or parts of these programs will be applied to assess over time whether the management measures are reducing pollution loads and improving water quality. In addition, the special projects for the San Juan Bay Estuary (p. I-17 and p. II- 9), Lake Loiza (p. II-11), Lake LaPlata, Dos Bocas Reservoir, Caonillas Reservoir, and Culebrinas watersheds (p. II-12) could provide the Commonwealth opportunities to meet the monitoring needs for section 6217, but Puerto Rico has not described how these monitoring efforts will apply to the coastal nonpoint program. There is also a gap in the Commonwealth's program with regard to the lack of efforts to track management measures and link land treatment to water quality data. The Commonwealth states that all lead and cooperating agencies are expected to participate in tracking the implementation and inspection of management measures, but details regarding the information to be gathered and how it will be linked to water quality data are not provided. Puerto Rico should include in its plan information regarding the number and location of monitoring stations, the types and frequency of water quality data being collected, and the analytic approaches that will be employed in conjunction with existing monitoring efforts to assess the success of management measures in achieving water quality objectives. Puerto Rico is encouraged to pursue the interagency agreements described on page V.H-1 of the program submittal to ensure that some inexpensive tracking of management measure implementation in conjunction with water quality monitoring is carried out, since such information is needed to assess the success of management measures in achieving water quality objectives. XIV. STRATEGY AND EVALUATION FOR BACK-UP AUTHORITIES Within one year, Puerto Rico will develop a strategy to implement the management measures for agriculture (nutrient management, pesticide management, and grazing), urban runoff (new development and site development), roads, highways and bridges, marinas (petroleum control, boat cleaning and boat operation), and protection of wetlands and riparian areas throughout the 6217 management area. This strategy will include a description and schedule for the specific steps the Commonwealth will take to ensure implementation of the management measures, describe how existing or new authorities can be used to ensure implementation where voluntary efforts are unsuccessful, and identify measurable results which, if achieved, will demonstrate the Commonwealth's ability to achieve implementation of the management measure using the described approach. Puerto Rico will also develop and apply credible survey tools to demonstrate the ability of the Commonwealth's approach to achieve implementation of these management measures. The use of credible assessment techniques is necessary in order for NOAA and EPA to evaluate after three years whether the Commonwealth's approach has been successful or whether new, more specific authorities will be needed.