HomeMy WebLinkAbout2001-11-27 - AGENDA REPORTS - NPDES PERMIT RENEWAL (2)CITY OF SANTA CLARITA
AGENDA REPORT
NEW BUSINESS
City Manager Approval:
Item to be presented by:*Fosselman
DATE: November 27, 2001
SUBJECT: NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
PERMIT RENEWAL
DEPARTMENT: Planning and Building Services
RECOMMENDED ACTION
City Council to receive information on the upcoming renewal of the City's NPDES permit
and:
1) Decide whether to petition certain portions of the new NPDES permit and,
2) Designate a City Council member to represent the City at the November 29`"
Regional Board meeting.
In accordance with the 1987 amendments to the Federal Clean Water Act of 1972 (Act), the
United States Environmental Protection Agency (EPA) is required to establish regulations
for storm water discharges into waters of the United States of America. National Pollutant
Discharge Elimination System (NPDES) permits are used as the regulating instrument.
The Act allows the EPA to delegate its NPDES permitting authority to states with an
approved environmental regulatory program. The State of California is one of the
delegated states.
The National Pollutant Discharge Elimination System Permit No. CAS614001 (CI 6948), of
which the City of Santa Clarita is a permittee, expires this year. This permit allows the
City to discharge storm waters into the Santa Clara River and its tributaries under certain
regulations. City staff has worked with the County of Los Angeles, and on February 01,
2001 a Report of Waste Discharge (ROWD) was submitted to the California Regional Water
Quality Control Board, Los Angeles Region as an application for re -issuance of waste
discharge requirements and an NPDES permit. This 2001-2006 NPDES permit will replace
the current 1996-2001 permit, with the County as the lead permittee and the City
designated as the co -permittee.
The City has provided written comments on the first two drafts of the upcoming NPDES
permit, and a third comment letter, dated November 9, 2001, was sent out in response to
the Tentative Draft permit. Proposed adoption of the new NPDES permit, now in the form
of the Tentative Draft, is scheduled for the November 29, 2001 Regional Board meeting.
Major concerns regarding the Tentative Draft, outlined in the City's comment letter, are as
follows: n r "1 }^r sg140
" �����i' (`� Agenda Item:
• Total Maximum Daily Load (TMDL) language: States are required to develop a list
of impaired waterbodies (the 303d list), and develop TMDLs for these impaired waters.
TMDLs determine the maximum amount of a pollutant a waterbody can receive and
still meet water quality standards (e.g. the Regional Board staff has developed a
Chloride TMDL for the Santa Clara watershed). The TMDL language found throughout
the Tentative Draft is duplicative of the TMDL processes approved by the Board and
imposes requirements that, in some cases, may be contrary to the Board -approved
TMDL process.
• Receiving Water Limitations (RWL): The Los Angeles Regional Board has added
language to the new NPDES permit which states the Permittees cannot allow any
stormwater or non-stormwater discharges from their storm drain systems that cause or
contribute to a condition of nuisance, and has excluded language that implementation of
the permit's required programs constitutes compliance with receiving water limitations.
Many of the requirements in this new permit demand the City to implement new,
untested programs. The RWL language could be viewed as creating liability for
permittees in the Form of third party lawsuits while permittees are trying to implement
these untested programs. Furthermore, the additional language is not found in the
State Board Order WQ 99-05, which contains the required language to be used in
municipal storm water permits.
• Industrial/Commercial Facilities Program: This program requires regular
inspections of industrial/commercial facilities. The City does not have the authority to
enter private property without permission, an inspection warrant or probable cause to
believe that a crime has been committed.
• Development Planning Program: City staff has concerns about minimizing
impermeable surfaces without addressing structural integrity and general health and
safety. City staff has also asked for clarification of language that appears to impose
Standard Urban Stormwater Mitigation Plan (SUSMP) requirements on all
development. The SUSMP regulation requires developers to construct permanent
stormwater runoff treatment devices. These devices take up space on-site and can be
very costly. City staff has concerns about diverting roof runoff to vegetated areas
without addressing structural integrity issues. The definition of redevelopment poses a
threat to the financial feasibility of many redevelopment projects. Lastly, City staff
asked for additional language to help clarify the Environmentally Sensitive Area (ESA)
designation of the SUSMP's applicability.
• Executive Advisory Council (EAC): The formal recognition of a representative body
of the permittees is beneficial for both the Board and the Permittees towards efficient
and effective communication. City staff has asked to have the EAC recognized in the
new permit, while retaining our right to speak to the Regional Board and its staff
directly.
The City has the right to petition the State Water Resources Control Board to review any
portion of the new NPDES permit within thirty (30) days of the permit's adoption. If
Council decides to petition, a letter will be drafted and sent by Burke, Williams, and
Sorenson on behalf of the City to the State Board. If the State Board finds that the action
of the regional board was inappropriate or improper, the state board may direct that the
appropriate action be taken by the regional board, refer the matter to any other state
agency having jurisdiction, take the appropriate action itself, or take any combination of
those actions. During the State Board's review of our petition the City is still required to
implement every portion of the new NPDES permit.
Due to concerns about quality of life, financial impact and liability the City staff
recommends the petition of the following items for the following reasons listed below.
These concerns have been expressed by City staff through comment letters and verbal
communication with Regional Board staff throughout this renewal process.
Receiving Water Limitations (RWL): This language could pose a liability issue for
the City.
Industrial/Commercial Facilities Program: Three versions of this program are
presented in the Tentative Draft. The first two are enforcement driven and the last is
an educational site visit program similar to the program in the current NPDES permit.
The decision will be made by the Regional Board regarding which one will be enacted.
The first two versions require additional City resources to comply with time-consuming
inspections that the City currently does not have the authority to perform.
Standard Urban Storm Water Mitigation Plans (SUSMP): The redevelopment
definition requires certain redevelopment projects to develop an Urban Stormwater
Mitigation Plan for the entire redevelopment property and not just the area to be
redeveloped. This will require additional costs to be incurred and may therefore deter
redevelopment in certain areas of the City.
The City is not alone in its comments regarding this Tentative Draft. The Coalition for
Practical Regulation (a group consisting of thirty five (35) cities has drafted its own
comment letter and the cities of Alhambra, Camarillo, El Segundo, Moorpark and Torrance
are listed in Mr. Rufus Young's comment letter to the Regional Board.
ALTERNATIVE ACTIONS
1. Accept the requirements in the new NPDES permit and do not petition.
2. Petition other items, areas of concern, in the new NPDES permit.
3. Other action as determined by City Council.
FISCAL IMPACT
The implementation of these regulatory requirements will increase the cost to the City and
property owners for plan review services, permitting, monitoring and inspection. In
addition, approval by the Regional Board may subject the City to potential third party
litigation regarding the receiving water limitations language. The administrative and
program costs incurred by the City are eligible for reimbursement through the Stormwater
Utility Fee. However this fee was not established with the new permit requirements in
mind and the revised requirements are not likely to be attained with the present fee level.
ATTACHMENTS
City's November 9, 2001 comment letter
Rufus C. Young, Jr. of Burke, Williams, and Sorenson, November 12, 2001 comment letter
Coalition for Practical Regulation comment letter
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PBS\ENVSRVCS\NPDES2\2001Pa t\Co tyWide\Third DreB\Per tegr.dc
City of
Santa Clarita
23920 Valencia Blvd.
Suite 300
Santa Clarita
Cali}omia 91355-2196
Website: www.santa-clarita.com
November 9, 2001
Phone
(661) 259-2489
Fax
(661)259-8125
Dr. Xavier Swamiknnnu, Ph.D.
California Regional Water Quality Control Board
Los Angeles Region
320 West 4' Street, Suite 200
Los Fzgeles, CA 90013
Dear Dr. Swammikanu:
RE: Comments on "Tentative Draft (October 11, 2001), LOS ANGELES
REGIONAL WATER QUALITY CONTROL BOARD ORDER No.
01 -XXX (NPDES No. CAS004001) WASTE DISCHARGE
r REQUIREMENTS FOR MUNICIPAL STORM WATER AND
URBAN RUNOFF DISCHARGES WITHIN THE COUNTY OF
LOS ANGELES AND THE INCORPORATED' CITIES THEREIN
(EXCEPT FOR THE CITY OF LONG BEACH)"
Thank you for the opportunity to submit comments on the "Tentative
Draft (October 11, 2001), LOS ANGELES REGIONAL WATER QUALITY
CONTROL BOARD ORDER No. 01 -XXX (NPDES No. CAS004001)
WASTE DISCHARGE REQUIREMENTS FOR MUNICIPAL STORM
WATER AND URBAN RUNOFF DISCHARGES WITHIN THE COUNTY
OF LOS ANGELES AND THE INCORPORATED CITIES THEREIN
(EXCEPT FOR THE CITY OF LONG BEACH)" (the Tentative Draft) of
the new storm water permit for Los Angeles County. This letter is in
addition to the comments to be submitted by Burke, Williams &
Sorensen, LLP, on behalf of the City of Santa Clarita, as well as other
cities, by letter dated November 12, 2001.
The City of Santa Clarita is fortunate that one of the last natural rivers in
Southern California runs through the heart of our community. The Santa
Clara River is a constant reminder of the importance of water quality and
the City supports endeavors to protect and enhance water quality. Great
strides have been made with the current Los Angeles County NPDES
permit and our city looks forward to accomplishing more with the
implementation of the anticipated new NPDES permit.
Meetings with Regional Board staff to discuss the terms of the permit
have been very helpful on many levels, including the _development of
mutual understanding of desired outcomes, identification of the barriers
PRINTSO ON RFrVrt Fn 06PPQ
City of Santa Clarita
Comments on Tentative Draft Permit
November 9, 2001
Page 2 of 6
solutions to the barriers. However, the City is concerned regarding Board
staffs final application of these discussions regarding critical land use
provisions and substantial financial requirements in the Tentative Draft.
As previously stated in the City's Second Draft comment letter dated
August 2, 2001, Santa Clarita generally supports the water quality
challenges that the Tentative Draft proposes to address. However the
City is concerned regarding our ability to implement some of the proposed
requirements from both a fiscal and land use perspective. The City's
primary areas of concern with the Tentative Draft are regarding inclusion
of TMDL references throughout the document, receiving water limitations
language, commercial and industrial regular inspection requirements,
development planning requirements, and the expansion of the
applicability of SUSMP requirements.
1. TMDL Language: As stated in our previous comment letter dated
Augg4st 21 2001, the City is concerned regarding the incorporation of
TM15Ls into the municipal stormwater permit process. The TMDL
language found throughout the Tentative Draft is duplicative of the
TMDL processes approved by the Board and imposes requirements
that, in some cases, may be contrary to the Board -approved TMDL
process. NPDES permits regulate overall issues associated with
runoff of pollutants into the storm drain system to the maximum
extent practicable, whereas a TMDL focuses on a particular
impairment and specific contributions to the creation of that
impairment. The TMDL process is both regulatory and an evolving
scientific solution to correct impairments of a water body. Proposed
solutions to the designated impairments may need to be adjusted
throughout the implementation of the TMDL to achieve the goal of
higher water quality. TMDLs will become a powerful tool in the goal
to improve water quality, but are not appropriate for inclusion as a
requirement in a NPDES permit. Development of TMDLs should be
done in concert with and as a compliment to the NPDES permit to
achieve the mutually supporting goals of protecting and improving
water quality.
The City requests that all language throughout the Tentative Draft
that incorporates TMDLs or the TMDL process into the NPDES permit
be omitted from the final approved municipal storm drain permit.
2. Receiving Water Limitations: As stated in our previous comment
letter dated August 2, 2001, the City is very concerned regarding the
Receiving Waters Limitations (RWL) language as currently written in
City of Santa Clarita
Comments on Tentative Draft Permit
November 9, 2001
Page 3 of 6
the Tentative Draft. The RWL language could be viewed as creating
liability for permittees in the form of third party lawsuits and is not
found in the State Board Order WQ 99-05 (page 18). In addition, the
City disagrees with Board staff response to comments dated October
11, 2001 that the Permittees' obligations to reduce the discharge of
pollutants in stormwater is qualified to the maximum extent
practicable; thus, the Permittees are protected from third party
lawsuits as long as more and better controls are implemented. As
currently written, Permittees are directly responsible for discharges
from the MS4 that "cause or contribute" to the violation of water
quality objectives, regardless of the source of the discharge, and
regardless of the controls implemented to prohibit the discharge.
Given that runoff discharges into water bodies that are already listed
as impaired on the EPA's 303(d) list, this language could be construed
to specifically place Permittees in violation of the new permit
dmmediately upon its adoption and subject to third party litigation.
The City of Santa Clarita requests that the Bd&d use the receiving
water limitations language prescribed by the US EPA in permits
issued by that agency, and by State Water Resources Control Board in
State Board Order WQ 99-05. The additional language found in Part
2.1 and 2.2, on page 18 of the Tentative Draft, with particular reference
to the "cause or contribute" language, should be deleted. The State
Board's language, which excised the, "cause or contribute" language
from Order 98-01, is the required language to be used in municipal
storm water permits. In this connection, see also the comment letter
submitted on our behalf by Burke, Williams & Sorensen, LLP, by letter
dated July 19, 2001, especially comments 5, 6 and 7.
3. Industrial/Commercial Facilities Program: The City of Santa
Clarita does not have the authority to enter private property without
permission, an inspection warrant or probable cause to believe that a
crime has been committed. The City investigates every complaint of
illicit discharge and illicit connection and takes enforcement action
where necessary. The City does not inspect industrial and commercial
facilities, as Los Angeles County Department of Public Works and
Regional Board staff currently conducts these inspections, as well as
collects specific revenue for the purpose of providing these inspections.
The City does not have the personnel and monetary resources to
assume responsibility for regular inspections of all these facilities.
Versions A and B in the Tentative Draft of the Industrial/Commercial
Facilities Program require the ability to conduct reg'slar inspections.
City of Santa Clarita
Comments on Tentative Draft Permit
November 9, 2001
Page 4 of 6
As stated above the City does not have the authority to comply with
this requirement and other agencies already conduct these
inspections. Due to the nature of the site visits and the coordination
with other inspection programs allotted for in Version C, this version
is more feasible with the language adjustment stated below.
The City requests that the Board:
1) Reject Industrial/ Commercial Facilities Program Version A
and Version B of the Tentative Draft,
2) Accept Industrial/ Commercial Facilities Program Version C as
the program for the Tentative Draft, and
3) Modify the language in Version C Part 3.G2.d) on page 25 to
read, "Permittees must possess authority to enter, sample,
inspect, review and copy records, and require regular resorts
from facilities associated with industrial activity discharging
storm water runoff into its MS4 (including construction sites).
Permittees shall act upon this authority when they discover or
have illicit discharges and/or illicit connections 'brought to
their attention."
4. Development Planning Program: The requirement to, "minimize
the quantity of storm water directed to impermeable surfaces and the
MS4" (page 40) does not acknowledge the need to protect structures
and people from the ponding of water on-site.
The City requests the following language change, "minimize the
quantity of storm water directed to impermeable surfaces and the MS4
when so doing does not pose a health and safety risk to the public and
risk of undermining the structural integrity of nearby structures."
Additional requirements under the Development Planning Program
states the Permittees shall, "Provide for appropriate permanent
measures to reduce storm water pollutant loads in storm water from
the development site," (page 40). This language is vague and appears
to require treatment control BMPs/USMPs to be installed/constructed
on every planning priority development and redevelopment project.
This would negate the need for categories of developments to trigger
the SUSMP requirement.
The City requests to have this language stricken from the permit.
5. Standard Urban Storm Water Mitigation Plans: The language,
"Divert roof runoff to vegetated areas before discharge unless the
City of Santa Clarita
Comments on Tentative Draft Permit
November 9, 2001
Page 5 of 6
diversion would result in slope instability," and "Direct surface flow to
vegetated areas before discharge unless the diversion would result in
slope instability" (page 41) addresses the concern about slope
instability. However, the language should be further clarified to
protect the integrity of structures from diverted runoff on the
property.
The City requests the language to read, "Divert roof runoff to vegetated
areas before discharge unless the diversion would result in slope
instability and /or endanger the integrity of nearby structures."
The addition of the SUSMP category, "redevelopment projects in
subject categories that meet redevelopment thresholds," (page -42 and
44) and the changes to the redevelopment definition could conceivably
prevent redevelopment in areas that need it the most due to
significant costs associated with the design and implementation of
UPMPs.
The City requests to have the redevelopment definit6on language found
in the EPA's definition of "redevelopment, at 64 Fed. Reg. 68760,
December 8, 1999: "EPA intends the term "redevelopment" to
refer to alterations of a property that change the `Footprint" of
a site or building in such a way that results in the disturbance
of equal to or greater than 1 acre of land. The term is not
intended to include such activities as exterior remodelingQ
which would not be expected to cause adverse storm water quality
impacts and offer no new opportunity for storm water controls"
The requirement that, "each Permittee shall require the
implementation of SUSNIP provisions not later than (180 days from
permit effective date), for all projects located in or directly adjacent to
or discharging directly to an ESA," (page 42) does not utilize the
Environmentally Sensitive Area Delineation Map that each Permittee
is required to submit for approval by the Regional Board Executive
Officer.
The City requests to have the language changed to, "Each Permittee
shall require the implementation of SUSAIP provisions no later than
(180 days from permit effective date), for all projects located in or
directly adjacent to or discharging directly to an ESA found on the
Regional Board Executive Officer approved Environmentally Sensitive
Area Delineation Map for its jurisdictional boundary.
City of Santa Clarita
Comments on Tentative Draft Permit
Page 6 of 6
6. Executive Advisory Council (EAC). The City appreciates and
values the role that EAC plays in communication between the
permittees and Board staff. The formal recognition of a representative
body of the permittees is beneficial for both the Board and the
Permittees towards efficient and effective communication. Thus, the
City strongly opposes the removal of EAC as a recognized
repress. tative
hod -7 f_om the Tentat:' - per of course eac
permittee should have the right to communicate directly with the
Regional Board and its staff.
The City requests to reinstate the establishment of
an Permittees, isoto
Committee (EAQ, a representative committee of the
facilitate permit compliance and enhance consistency in program
implementation in the Tentative
e EAC is compose
staff members, not elected officials, t is notsubj c to the BrownAct.)of
Tank you for your time and consideration of our comments and requests.
If you have any questions or need any additional information, please
contact Jill Fosselman, Environmental Services Manager at (661) 255-
4337.
Sincerely,
George A. Caravalho
City Manager
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cc: Mayor Weste and Members of the C& BuCtoldincg Services
Jeff Lambert, Director of Planning
Jill Fosselman, Environmental Services Manager
Rufus C, young, Burke, Williams & Sorensen, LLP
ORANGE COUNTY OFFICE
10301 VON WIRNAN AVEMIE, SUITE 1050
IRVINE, CALIFORNIA 92612-1009
Tel 19491 063-3363
Fax: 19491 863-3350
RIVERSIDE COUNTY OFFICE
3403TENTH STREET, SUITE 300
RIVERS I OE, CALIFORNIA 92501-3629
Tel: 19091 708-0100
Fax: 19091 788-5785
Writer's Direct Dial:
(213) 236-2821
Mr. Dennis Dickerson,
LAW OFFICES
BURKE, WILLIAMS & SORENSEN, LLP
611 WEST SIXTH STREET
SUITE 2500
LOS ANGELES, CALIFORNIA 90017-3102
Tel: (213) 236-0600
Fax: (213) 236-2700
www.bwslaw.co3n
November 12, 2001
Executive Officer,
California Regional Water Quality Control Board —
Los Angeles Region
Attn: Xavier Swamikannu, Ph.D.
320 West 4`h Street, Suite 200
Los Angeles, California 90013
SAN DIEGO COUNTY OFFICE
550 WEST • C' STREET, SUITE 1880
SAN DIEGO, CALIFORNIA 92101-8583
Tel: (619) 615-6672
Fax: (619) 615-6673
VENTURA COUNTY OFFICE
2310 EAST PONDEROSA DRIVE, SUITE 25
CANARILLO, CALIFORNIA 93010-4747
Tel 10051 987-3468
Fax: 10051 482-9834
OUR FILE N0:
00006-0875; 00111-0539; 03476-0001
01953-0001; 01359-0105; 04191-0001;
00219-0146; 02012-0181; 01516-0027;
00070-0307
Re: Comments on "Tentative Draft -October 11, 2001, CALIFORNIA REGIONAL
WATER QUALITY CONTROL BOARD LOS ANGELES REGIONAL
ORDER No. 01-xxx NPDES No. CAS004001 WASTE DISCHARGE
REQUIREMENTS FOR MUNICIPAL STORM WATER AND URBAN
RUNOFF DISCHARGES WITHIN THE COUNTY OF LOS ANGELES
AND THE INCORPORATED CITIES THEREIN, EXCEPT FOR THE
CITY OF LONG BEACH"
Dear Mr. Dickerson and Dr. Swamikannu:
By this letter, the Los Angeles County Economic Development Corporation
("LAEDC") and the Cities of Alhambra, Camarillo, Compton, EI Segundo, Industry,
Lawndale, Lomita, Moorpark, Santa Clarita and Torrance (the "Cities") offer comments
on the "Tentative Draft -October 11, 2001, CALIFORNIA REGIONAL WATER QUALITY
CONTROL BOARD LOS ANGELES REGIONAL ORDER No. 01-xxx NPDES No.
CAS004001 WASTE DISCHARGE REQUIREMENTS FOR MUNICIPAL STORM WATER
AND URBAN RUNOFF DISCHARGES WITHIN THE COUNTY OF LOS ANGELES AND
THE INCORPORATED CITIES THEREIN, EXCEPT FOR THE CITY OF LONG BEACH"
(the "Third Draft") and the accompanying document, "Tentative Draft—FACT SHEET/STAFF
REPORT State of California Regional Water Quality Control Board Los Angeles Region
National Pollutant Discharge Elimination System (NPDES) Permit No. CAS004001, Cl 6948
Regional Board Order No. 01 -XXX."
Dennis Dickerson, Executive Officer
California Regional Water Quality Control Board
Los Angeles Region
November 12, 2001
Page 2
Interest of the Cities and the Los Angeles County Economic Development Corporation
The Order to be issued by the Board will directly affect the Cities of Alhambra,
Compton, El Segundo, Industry, Lawndale, Lomita, Santa Clarita and Torrance, which will be
co -permittees under the Order.
The City of Moorpark and the City of Camarillo, in Ventura County, will be affected by
the Board's Order as those cities petitioned the SWRCB for review of an action of the Executive
Officer of the Los Angeles Regional Board with respect to the modification of their MS4
- NPDES permit. The issue in their petition is whether certain land use provisions, referred to as
SUSMPs in this Permit and SQUIMPs in the Ventura County Permit, would be made applicable
to non -discretionary permits to be issued by the co -permittees in the Ventura County permit. The
Camarillo/Moorpark appeal to the SWRCB is being held in abeyance' pending decision by the
Los Angeles Regional )3oard on provisions in the Los Angeles County permit 2
LAEDC is the premier business leadership organization in Los Angeles County. The
LAEDC's mission is to attract, retain and grow businesses and jobs in the regions of Los Angeles
County. LAEDC has a vital interest in growth and development in Los Angeles County. The
Board's action in this matter will affect the ability of LAEDC to carry out its mission.
Issues Not Adequately Addressed in the Tentative Draft Order
The LAEDC and the Cities submit that the Tentative Draft fails to address
adequately a number of issues of concern. These are: Cost of Compliance; Land Use and
Redevelopment; and Inconsistencies With Controlling Statutes and Regulations. These are
addressed in detail in the enclosed Comments and Statement of Points and Authorities.
However, there are several points to which we wish to invite the Board's early attention, and
these are set out below.
Cost of Compliance
By letter of November 6, 2001, the LAEDC and the Cities submitted the following
reports:
See CRWQCB-LA letter of May 4, 2001, to Brian A. Pierik and Rufus C. Young, Jr.
a See Fisher and Swamikannu, "STORM WATER MITIGATION REQUIREMENTS FOR PRIORITY PLANNING PROJECTS
FOR THE PROTECTION OF WATER QUALITY - TECHNICAL REPORT," October 2001, Attachment 1 to Tentative Draft
— FACT SHEET/STAFF REPORT, NPDES CAS004001 (the "Fisher-Swamikannu Technical Report").
LA 480111 v I
Dennis Dickerson, Executive Officer
California Regional Water Quality Control Board
Los Angeles Region
November 12, 2001
Page 3
1. "Southern California Association of Governments Staff Report to Energy and
Environment Committee dated August 23, 2001, Subject: Regional Solutions for
Managing Stormwater Pollution' (the "SCAG Report");
2. "COST OF STORM WATER TREATMENT FOR THE LOS ANGELES COUNTY NPDES
PERMIT AREA" June, 1998, by Brown & Caldwell, prepared for California
Department of Transportation; and
3. "Financial and Economic Impacts of Storm Water Treatment Los Angeles County
NPDES Permit Area" presented to California Department of Transportation
Environmental Program, Report I.D. #CTSWRT-98-72, November, 1998, by
Stanley R. Hoffman Associates, (the "Caltrans Financial and Economic Impacts
Study").
By letter ofNodrember 8, 2001, the LAEDC and the Cities submitted an additional report:
"COST OF STORM WATER TREATMENT FOR CALIFORNIA URBANIZED AREAS," October,
1998, prepared for California Department of Transportation, Sacramento, California, by
Brown and Caldwell
These studies and reports (to which I shall refer collectively as the "Storm Water Permit
Cost Studies") are evidence to be considered and addressed by the Board and the Staff in the
revision of the Tentative Draft and the Tentative Draft — Fact Sheet/Staff Report.
The Storm Water Permit Cost Studies conclude that the cost of storm water
compliance for the Los Angeles County area will exceed $50 Billion. These Storm Water
Permit Cost Studies must be taken into consideration in re-evaluating the requirements to
be imposed on the co -permittees. This is because Municipal Separate Storm Sewer System
("MS4s") permits are issued under section 402(p)(3)(B)(iii) of the Clean Water Act (the
"CWA").3 That section does not impose an absolute prohibition on the discharge of pollutants.
Instead, the section requires that:
Permits for discharges from municipal storm sewers --
(iii) shall require controls to reduce the discharge of pollutants to the
maximum extent practicable, including management practices, control
techniques and system, design and engineering methods, and such other
3 33 U.S.C. § 1342(p)(3)(B)(iii).
LA 480111 v I
Dennis Dickerson, Executive Officer
California Regional Water Quality Control Board
Los Angeles Region
November 12, 2001
Page 4
provisions as the Administrator or the State determines appropriate for the
control of such pollutants. (Emphasis added.)
Similarly, section 13263(a) of the California Water Code requires regionar boards,
when prescribing waste discharge requirements, to take into consideration the provisions
of California Water Code §§ 13241(c) and (d). Those sections require a balancing similar
to that required by § 402(p)(3)(B)(iii) of the CWA, 33 U.S.C. § 1342(p)(3)(B)(iii). Among
the factors regional boards must consider are:
(c) Water quality conditions that could reasonably be achieved
through the coordinated control of all factors which affect water
quality in the area.
(d) Economic considerations.
J#
The balancing required by CWA § 402(p)(3)(B)(iii) and California Water Code §§
13241(c) and (d) clearly require the Regional Board to consider the Stdim Water Permit
Cost Studies as they are direct evidence of economic considerations of the permit.
The LAEDC and the Cities fully support the objectives of the Clean Water Act, and the
expenditure of funds necessary to achieve its goals. However, the magnitude of the compliance
cost estimates referred to in the Storm Water Permit Cost Studies, over $50 Billion for the region
affected by the Order, would make it necessary for the Cities named above, and all other Cities in
Los Angeles County, to ask the Congress and the California Legislature to appropriate nearly all
of the funds estimated to be necessary for compliance. Given the current downturn in the
economy and the priorities for funding Operation Enduring Freedom and Homeland Defense,
Congress and the State Legislature may be unable to make necessary funds available.
The LAEDC and the Cities are not aware of any published studies, by any reputable and
qualified persons, which rebut the Storm Water Permit Cost Studies which they submitted.
Land Use and Redevelopment
While the Tentative Draft—Fact Sheet/Staff Report, at pages 41-42, refers to
SWRCB Order WQ 2000-11 (the LA SUSMP decision), neither the Tentative Draft—Fact
Sheet/Staff Report nor Board Order WQ 2000-11, nor the Fisher-Swamikannu Technical
Report discusses statutory and constitutional limitations on the authority of Regional
Boards to condition the issuance of MS4 permits on requirements that permitees must
impose land use constraints as a condition of land use approvals. The LAEDC and the Cities
respectfully submit that in enacting the CWA, Congress made it very clear, in the first section of
LA #801 It v I
Dennis Dickerson, Executive Officer
California Regional Water Quality Control Board
Los Angeles Region
November 12, 2001
Page 5
the CWA, that the CWA, including the National Pollutant Discharge Elimination System
("NPDES") program for MS4s is not meant to infringe on local land use authority:
It is the policy of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States . . . to plan the development and use
(including restoration, preservation, and enhancement) of land and water
resources....
33 U.S.C. § 1251(b), CWA § 101(b). The US EPA's position on this issue is clear. In
promulgating the Phase II storm water regulations, EPA said flatly "EPA recognizes that land
use planning is within the authority of local governments." 64 Fed.Reg. 68761, December 8,
1999. As the Regional Board acts in this context pursuant to a delegation of authority from the
EPA, we suggest that the Regional Board is bound by EPA's pronouncements as to the reach of
its authority.
The Tentative Draft —Fact Sheet/Staff Report also fails to reconcile the Tentative
Draft's requirements regarding redevelopment, which reach far beyondd the limits set by
the US EPA. The LAEDC and the Cities invite the Board's attention to the constraints cities
would be required to impose on property owners who seek permits for redevelopment, found in
PART 4.13.3.6).(7), on page 42, of the Tentative Draft. The Tentative Draft, at page 70, defines
"Redevelopment" to mean "the creation, addition or replacement of 5,000 square feet of
impervious surface area on an already developed site." The definition of "Redevelopment"
in the Tentative Draft conflict with the EPA's definition of the term. In promulgating the Phase
1I final rules, EPA stated
EPA intends the term "redevelopment" to refer to alterations of a property
that change the "footprint" of a site or building in such a way that results in
the disturbance of equal to or greater than 1 acre of land. The term is not
intended to include such activities as exterior remodeling, which would not be
expected to cause adverse storm water quality impacts and offer no new
opportunity for storm water controls.
64 Fed.Reg. 68760, December 8, 1999. Neither the Cities nor the LAEDC are aware of any
evidence to support the use of a 5,000 square foot, rather than EPA's one -acre, threshold for the
application of source control and structural BMPs (Best Management Practices) such as
construction of detention basins. Similarly, neither the Cities nor LAEDC are aware of any
authority for the proposition that the EPA's one -acre threshold is not binding for purposes of this
Order, Regional Boards act in this context pursuant to a delegation of authority from the EPA.
LA #80111 v1
Dennis Dickerson, Executive Officer
California Regional Water Quality Control Board
Los Angeles Region
November 12, 2001
Page 6
Finally, we note that in setting the threshold for the application of construction permits
for Phase II, the EPA examined considerable scientific evidence before concluding that one acre
was the proper threshold. The Cities and the LAEDC suggest that the same considerations apply
to redevelopment.
If the Regional Board's 5,000 square foot threshold is permitted to stand, the
redevelopment of built out areas will be significantly hindered, without any evidence that
there are any benefits from this lower threshold. A requirement for projects under one
acre to meet the SUSMP redevelopment requirements will be difficult and expensive. The
result will be to discourage redevelopment of areas which would benefit the most. The
consequence of that will be the promotion of urban sprawl, dumb growth, not smart
growth. The Tentative Draft should be revised to require the Permit to incorporate the
EPA definition of redevelopment.
.4 Peak Flow Control
The Tentative Draft, in Parts 4.13.2 and 4.13.4, on pages 40-44, disc71
usses, albeit briefly,
Peak Flow Control and Numerical Design Criteria measures, which are to reduce post -
development flows of water, whether or the water is pure or carries any "pollutants" into the
storm water system. The Tentative Draft—Fact Sheet/Staff Report fails to address a point
addressed more fully in the enclosed Comments and Points and Authorities: whether the
Regional Board's authority under the Clean Water Act extends to the regulation of the rate of
discharge of water, independent of the presence or absence of pollutants.
Conclusion
More detailed comments may be found in the enclosed Comments and Points and
Authorities. The LAEDC and the Cities ask that this letter and the enclosed Comments and
Statement of Points and Authorities be made a part of the record of this matter. The Cities and
the LAEDC reserve the right to offer further comments. The firm of Burke, Williams &
Sorensen, LLP, is special counsel for the LAEDC and for each of the Cities in this matter.
Very truly yours,
RUFUS C. YOUNG, JR.
Of BURKE, WILLIAMS & SORENSEN, LLP
LA 480111 v1
Dennis Dickerson, Executive Officer
California Regional Water Quality Control Board
Los Angeles Region
November 12, 2001
Page 7
cc: Lee Harrington, President and CEO, Los Angeles County Economic Development
Corporation;
Mayors, City Managers and City Attorneys of the
City of Alhambra,
City of Camarillo,
City of Compton,
City of EI Segundo,
City of Industry,
City of Lawndale,
City of Lomita,
City of Moorpark,
City of Santa Clarita, and the
City of Torrance
if
LA #80111 vl
BEFORE THE CALIFORNIA REGIONAL
WATER QUALITY CONTROL BOARD
FOR THE LOS ANGELES REGION
COMMENTS AND STATEMENT OF POINTS AND AUTHORITIES
REGARDING
"Tentative Draft -October 11, 2001,
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
LOS ANGELES REGIONAL ORDER No. 01-xxx
NPDES No. CAS004001
WASTE DISCHARGE REQUIREMENTS FOR MUNICIPAL STORM WATER AND
URBAN RUNOFF DISCHARGES WITHIN THE COUNTY OF LOS ANGELES AND
THE INCORPORATED CITIES THEREIN, EXCEPT FOR THE CITY OF LONG
BEACH" (the "Third Draft") and
"Tentative Draft — FACT SHEET/STAFF REPORT
State of California Regional Water Quality Control Board
Los Angeles Region
National Pollutant Discharge Elimination System (NPDES) Permit No. CAS004001,
CI 6948 Regional Board Order No. 01 -XXX."
f
Submitted on Behalf of the Los Angeles County Economic Development Corporation, the
City of Alhambra, the City of Camarillo, the City of Compton, the City of EI Segundo, the
City of Industry, the City of Lawndale, the City of Lomita, the City of Moorpark, the
City of Santa Clarita and the City of Torrance, California
November 12, 2001
by
BURKE, WILLIAMS & SORENSEN, LLP
611 West 6h Street, 25" Floor
Los Angeles, California 90017
Telephone: (213) 236-0600
Facsimile: (213) 236-2700
LA #80111 v I
LA #80111 v1 10
TABLE OF CONTENTS
Palo.
1.
Interest of the Cities and the Los Angeles County Economic Development Corporation ...........................
11
2.
The Storm Water Permit Cost Studies, which conclude that the cost of storm water compliance for the
areas affected by storm water permits issued by the Board for Los Angeles County will exceed $50
Billion, must be taken into consideration in re-evaluating the requirements to be imposed on the co-
permittees....................................................................................................................................................
12
3.
The Tentative Draft Exceeds the Limits Imposed by the CWA by Attempting to Regulate the Manner
in Which Cities Exercise Land Use Authority; A Matter Over Which the Regional Board Has No
Authority.......................................................................................................................................... ...........
13
4.
The Provisions of Part 4.d.3.b) of the Tentative Draft, page 41, by Incorporating Regional Board
Resolution No. R. 00-02, Requiring Property Owners to "Concentrate or cluster Development on
portions of a site while leaving the remaining land in a natural unaltered condition" Could be Argued
to Violate the "Takings Clause" of the U.S. Constitution...........................................................................
15
5.
The Application of Standard Urban Storm Water Mitigation Plans ("SUSMPs") to Non -Discretionary,
or Ministerial, Approvals Could Violate the "Takings Clause.".................................................................
17
6.
The Tentative Draft -Fact Sheet/Staff Report Fails to Address the Practical Difficulties of Application
of the SUSMPS to Non -Discretionary Approvals, An Application Which Render the SUSMPs
Unworkable.........,#4.....................................................................................................................................
18
7.
The "cause or contribute" Language of Parts 2.1 and 2.2, on page 18, Should be Rett cd ........................
19
8.
The Tentative Draft -Fact Sheet/Staff Report Incorrectly Asserts that the Imposition of "Peak Flow
Control" Measures is Within the Authority of the Regional Board.............................................................
19
9.
The Tentative Draft Should be Revised to Exclude Retail Gasoline Outlets..............................................20
10.
The Board Lacks the Authority to Impose the Requirement of Part 4.D.13, on page 47 of the Tentative
Draft, for Co -permittees to Conduct a "General Plan Update..............:.....................................................21
11.
The Tentative Draft Should Assign Responsibility for Sanitary Sewer Overflows to POTWs, Not Cities
21
12.
Requiring Each city to Install trash Receptacles at "All Transit Stops Within Its Jurisdiction" Exceeds
the Board's Authority, and is a Responsibility Which Should Rest with Transit Agencies, Not Cities ......21
13.
The Definition of "Redevelopment" in the Order is Inconsistent with the Controlling EPA Definition of
"Redevelopment."........................................................................................................................................
21
14.
Part 3.E., Regarding "Discharges Within Boundaries," Fails to Exempt Discharges from Federal and
State Facilities Within a Co-permittee's Boundaries...................................................................................22
15.
Part 3.G.2.c), Which Attempts to Extend the Order to Reach "Potential Contribution" of Pollutants is
Overbroad....................................................................................................................................................
22
16.
The Definition of "Illicit Disposal" is Overbroad........................................................................................23
LA #80111 v1 10
COMMENTS AND STATEMENT OF POINTS AND AUTHORITIES
REGARDING
"Tentative Draft -October 11, 1001,
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
LOS ANGELES REGIONAL ORDER No. OI-xxx
NPDES No. CAS004001
WASTE DISCHARGE REQUIREMENTS FOR MUNICIPAL STORM WATER AND
URBAN RUNOFF DISCHARGES WITHIN THE COUNTY OF LOS ANGELES AND
THE INCORPORATED CITIES THEREIN, EXCEPT FOR THE CITY OF LONG
BEACH" (the "Third Draft") and
"Tentative Draft — FACT SHEET/STAFF REPORT
State of California Regional Water Quality Control Board
Los Angeles Region
National Pollutant Discharge Elimination System (NPDES) Permit No. CAS004001,
CI 6948 Regional Board Order No. 01 -XXX."
1. Interest of the Cities and the Los Angeles County Economic Development
Corporation
The Order to' a issued by the Board will directly affect the Cities of Alhambra,
Compton, El Segundo, Industry, Lawndale, Lomita, Santa Clarita and Torrance, which
will be co -permittees under the Order.
The City of Moorpark and the City of Camarillo, in Ventura County, will be affected by
the Board's Order as those cities petitioned the SWRCB for review of an action of the
Executive Officer of the Los Angeles Regional Board with respect to the modification of
their MS4 NPDES permit. The issue in their petition is whether certain land use
provisions, referred to as SUSMPs in this Tentative Draft and SQUIMPs in the Ventura
County Permit, would be made applicable to non -discretionary permits to be issued by
the co -permittees in the Ventura County permit. The Camarillo/Moorpark appeal to the
SWRCB is being held in abeyance pending decision by the Los Angeles Regional Board
on provisions in the Los Angeles County permit.5
LAEDC is the premier business leadership organization in Los Angeles County. The
LAEDC's mission is to attract, retain and grow businesses and jobs in the regions of Los
Angeles County. LAEDC has a vital interest in growth and development in Los Angeles
County. The SWRCB's action in this matter will affect the ability of LAEDC to carry
out its mission.
See CRWQCB-LA letter of May 4, 2001, to Brian A. Pierik and Rufus C. Young, Jr.
s See Fisher and Swamikannu, "STORM WATER MITIGATION REQUIREMENTS FOR PRIORITY PLANNING PROJECTS
FOR THE PROTECTION OF WATER QUALITY — TECHNICAL REPORT," October 2001, Attachment 1 to Tentative Draft
— FACT SHEET/STAFF REPORT, NPDES CAS004001.
LA #8011 1v1 1 I
2. The Storm Water Permit Cost Studies, which conclude that the cost of storm water
compliance for the areas affected by storm water permits issued by the Board for
Los Angeles County will exceed $50 Billion, must be taken into consideration in re-
evaluating the requirements to be imposed on the co -permittees.
Consideration must be given to the Storm Water Permit Cost Studies because MS4
permits are issued under section 402(p)(3)(B)(iii) of the CWA .6 That section does not
impose an absolute prohibition on the discharge of pollutants. Instead, the section
requires that:
Permits for discharges from municipal storm sewers --
(iii) shall require controls to reduce the discharge of pollutants to the
maximum extent practicable, including management practices, control
techniques and system, design and engineering methods, and such other
provisions as the Administrator or the State determines appropriate for the
control of such pollutants. (Emphasis added.)
Similarly, section 13263(a) of the California Water Code requires regional boards,
when prescribing waste discharge requirements, to take into consideration the
provisions of California Water Code §§ 13241(c) and (d). Those sections require a
balancing similar to that required by § 402(p)(3)(B)(iii) of the CWA, 33, U.S.C. §
1342(p)(3)(B)(iii). Among the factors regional boards must consider are:
(c) Water quality conditions that could reasonably be achieved
through the coordinated control of all factors which affect water
quality in the area.
(d) Economic considerations.
The balancing required by CWA § 402(p)(3)(B)(iii) and California Water Code §§
13241(c) and (d) clearly require the Regional Board to consider the costs of permit
compliance.
The LAEDC and the Cities fully support the objectives of the Clean Water Act.
However, the magnitude of the compliance cost estimates referred to in the Storm Water
Permit Cost Studies, over $50 Billion, would make it necessary for the Cities named
above, and all other Cities in Los Angeles County, to ask the Congress and the California
Legislature to appropriate nearly all of the funds estimated to be necessary for
compliance. Given the current downturn in the economy and the priorities for funding
Operation Enduring Freedom and Homeland Defense, Congress and the State Legislature
may be unable to make necessary funds available.
6 33 U.S.C. § 1342(p)(3)(B)(iii).
LA #80111 v1 12
The LAEDC and the Cities are not aware of any published studies, by any reputable and
qualified persons, which rebut the Storm Water Permit Cost Studies which they
submitted.
3. The Tentative Draft Exceeds the Limits Imposed by the CWA by Attempting to
Regulate the Manner in Which Cities Exercise Land Use Authority; A Matter Over
Which the Regional Board Has No Authority.
The Tentative Draft fails to address a jurisdictional matter of fundamental importance.
Contrary to the provisions of the Clean Water Act and California law, the Tentative
Draft, in numerous places, but especially Part 4.13.3, at pages 41-42, would impose
restrictions on how permittees exercise their authority to regulate land use, rather than
simply requiring the Co -permittees to reduce the discharge of pollutants to the maximum
extent practicable. In the very first section of the Clean Water Act, Congress made it
clear that the CWA, including the NPDES program, is not meant to infringe on local land
use authority:
It is the policy of the Congress to recognize, preserve, and protect the "
primary responsibilities and rights of States . . . to plan the
development and use (including restoration, preservation, and
enhancement) of land and water resources ....
i
CWA § 101(b), 33 U.S.C. § 1251(b). This policy was relied on recently by the Supreme
Court of the United States in a case in which the Court limited federal authority over
local land use matters. In Solid Waste Agency of Northern Cook County v. Army Corps of
Engineers, 531 U.S. 159 (2001), the Court struck down a rule of the Army Corps of
Engineers under which the Corps claimed jurisdiction under the Clean Water Act over
isolated intra -state wetlands. The Court found that the rule:
would result in a significant impingement of the States' traditional
and primary power over land and water use. See, e.g., Hess v. Port
Authority Trans -Hudson Corporation, 513 U.S. 30, 44 (1994)
("[R]egulation of land use [is] a function traditionally performed by
local governments"). Rather than expressing a desire to readjust the
federal -state balance in this manner, Congress [through the CWA] chose
to "recognize, preserve, and protect the primary responsibilities and rights
of States ... to plan the development and use ... of land and water
resources ...... 33 U.S.C. § 1251(b).
The US EPA has recognized that a "command and control" approach is inappropriate in
the context of post -construction measures. In promulgating the Phase II regulations, EPA
said
EPA recommends that municipalities consider policies and ordinances
that encourage infill development in higher density urban areas, and
LA #8011 ivi 13
areas with existing infrastructure, in order to meet the measure's
intent.
64 Fed.Reg. 68742, December 8, 1999. EPA has acknowledged the sensitivity of the
issue: "EPA is very aware of municipal concerns about possible federal interference
with local land use planning." 64 Fed.Reg. 68742, December 8, 1999. EPA declined to
impose specific requirements for permits issued to small MS4s, instead stating
EPA encourages operators of regulated small MS4s to identify specific
problem areas within their jurisdictions and initiate innovative solutions
and designs to focus attention on those areas through local planning.
64 Fed.Reg. 68759, December 8, 1999. Finally, and most tellingly, in responding to
comments on the Phase II regulations regarding Post -Construction Storm Water
Management in New Development and Redevelopment, EPA said flatly "EPA
recognizes that land use planning is within the authority of local governments." 64
Fed.Reg. 68761, December 8, 1999.7
It should be clear, then, that if there is authority for a Regional Board to regulate local
land use, it does not come from the CWA, as Congress, with the express approval of the
Supreme Court in the SWANCC case, and the EPA, have unequivocally disavowed any
suggestion thatAhe CWA grants EPA, or the states when acting for EPA, any land use
control authority. Therefore, if a Regional Board is to prescribe land use controls as a
condition of a WDR/NPDES Storm Water permit, that authority must come from
California law.
However, under California law, it is local governments, cities and counties, and not
state executive agencies, which exercise land use authority. The authority of cities
and counties to regulate land use comes from the California Constitution. Article XI, §7
confers on local governments, and not on Regional Boards, the authority to regulate land
use, through the exercise of the "police power." The California Legislature, in enacting
Government Code § 65800, declared
its intention to provide only a minimum of limitation in order that
counties and cities may exercise the maximum degree of control over
local zoning matters.
Case law confirms the authority of cities and counties, recognizing that in their intrinsic
character and by express declaration, state laws on county and city zoning are designed as
standardizing limitations over local zoning practices, not as specific grants of authority to
' The EPA's acknowledgement of its lack of authority to control local land use may be based, in part, on this
exchange which occurred during hearings on the adoption of the CWA:
Senator BAKER: The hobby of a politician is to watch the ebb and flow of words that are created.
Land use creates not a ripple today, but I think in a year or two we will have a strong reaction to it,
as people come to realize that we are talking about a national zoning system.
Mr. RUCKELSHAUS: That is not in the proposals before us, Senator.
LA #80111 v 1 14
legislate. Scrutton v. Sacramento County, 275 Cal.App.2d 412 (1969). Furthermore, in
Los Angeles v. California, 138 Cal.App.3d 526, 533 (1982), it was recognized that
the Legislature has been sensitive to the fact that planning and zoning in
the conventional sense have traditionally been deemed municipal
affairs. It [the Legislature] has thus made no attempt to deprive local
governments (chartered city or otherwise) of their right to manage
and control such matters, bur rather has attempted to impinge upon local
control only to the limited degree necessary to further legitimate state
interests.
Through the Standard Urban Storm Water Mitigation Program ("SUSMP") provisions of
the Tentative Draft, the Regional Board attempts to regulate local land use by requiring
the Co -permittees to impose constraints on land use. Part 4.D.3, on page 41-42, for
example, requires Cities to subject development project land use approvals to the
condition that the property owner
Concentrate or cluster Development on portions of a site while leaving
the remaining land in a natural unaltered condition.
For a Regional Board to dictate conditions which cities must impose on land use
approvals, violates the separation of powers doctrine. To put this another way, it is the
California Constitution and the California Legislature, and not the Regional Boards,
which authorize Cities to prescribe land use conditions. i'
None of the foregoing points are addressed in the Tentative Draft—Fact Sheet/Staff Report
or the Fisher-Swamikannu Technical Report. Instead, the Tentative Draft—Fact
Sheet/Staff Report simply relies on Order WQ 2000-11, brushing aside the Cities'
previous SUSMP contentions. We must now point out that, notwithstanding Order WQ
2000-11, the Tentative Draft's encroachments upon local land use authority not only
violate § 101(b) of the CWA, and are contrary to EPA express acknowledgement of the
limits of its authority, they are contrary to California law, which places land use control
firmly in the hands of local governments, not Regional Boards. Order WQ 2000-11 does
not merit the deference accorded it. It was flawed from the outset, as Regional Boards
have never had any authority to impose constraints over land use approvals. The
Tentative Draft—Fact Sheet/Staff Report should address the foregoing points and the
Tentative Draft should be revised in light of the constraints of the Clean Water Act and
the EPA's acknowledgement of the limits of its authority.
4. The Provisions of Part 4.d.3.b) of the Tentative Draft, page 41, by Incorporating
Regional Board Resolution No. R. 00-02, Requiring Property Owners to
"Concentrate or cluster Development on portions of a site while leaving the
remaining land in a natural unaltered condition" Could be Argued to Violate the
"Takings Clause" of the U.S. Constitution.
The Fifth Amendment to the United States Constitution provides that
LA #80111v1 15
no person shall ... be deprived of ... property without due process of
law; nor shall private property be taken for public use, without just
compensation.8
No consideration is given in the Tentative Draft—Fact Sheet/Staff Report; an
accompanying Technical Report;9 or Order WQ 2000-11, to the "Takings Clause" issues
created by the Tentative Draft's SUSMP requirements which the Cities are to impose on
private property owners to "Concentrate or cluster Development on portions of a site
while leaving the remaining land in a natural unaltered condition" and other land use
provisions. We suggest that cities (and the Regional Board, joined as a necessary party)
may face "takings" claims if cities attempt to condition land development approvals on
the imposition of these undefined and elastic requirements.10 Property owners might well
claim that the requirement to "minimize impervious coverage," when applied to their
property, is a taking of private property for public use.
Consider this example: an application for a residential development permit by an owner
of ten acres, who seeks to develop ten homes, each on a one -acre lot. The "Concentrate
or cluster Development on portions of a site while leaving the remaining land in a
natural unaltered condition" requirement incorporated into the Tentative Draft could be
seen as requiring local government co -permittees to condition development approval on a
requirement that the property owner build all ten homes on one acre, and to deny the
owner any rights to develop the remaining nine one -acre lots. In Lucas v. South Carolina
Coastal Council, 505 U.S. 1003 (1992), the Supreme Court held that where a regulation
denies all economically beneficial or productive use of land (in this example, the nine
one -acre lots), a "taking" has occurred, requiring that the owner be compensated. 11 The
reduction of runoff of polluted storm water is a critically important objective, one which
the Cities and LAEDC fully support. However, the Cities and LAEDC are constrained to
point out that a property owner who is denied the opportunity to develop nine one -acre
lots, by application of the "Concentrate or cluster Development on portions of a site
while leaving the remaining land in a natural unaltered condition" provision, may
argue that she is being forced to bear a disproportionate share of the burden relative to
other members of the community and may well raise a takings challenge (to which the
Regional Board would seem to be a necessary party).
9 This provision is commonly referred to as the "Takings Clause."
9 M. Fisher & X. Swamikannu, STORM WATER MITIGATION REQUIREMENTS FOR PRIORITY PLANNING
PROJECTS FOR THE PROTECTION OF WATER QUALITY, October 2001.
10 This discussion sets aside for the moment, but should not be construed to waive, the Cities and LAEDC's
argument that the Congress never intended to authorize the EPA, or the states, when acting pursuant to a delegation
of authority from EPA, to invade the well-established land use prerogatives of local government, an issue raised in
Point #1, above.
" See also, Palazzolo v. Rhode Island, 533 U.S. _, 121 S.Ct. 2448 (2001) (landowner's claim that a state's
application of its wetlands regulations took his property without compensation in violation of the Takings Clause
ripe for review); Florida Rock Industries, Inc. v. United States, 45 Fed.Cl. 21 (Fed.Cl. 1999)(the notion that the
government can take two thirds of your property and not compensate you but must compensate you if it takes 100%
has a ring of irrationality and unfairness about it; the court held that 73.1% of the value of the land was diminished,
a regulatory taking had occurred and Florida Rock was entitled to just compensation).
LA #8011 iv 1 16
A regulation adopted by the Tahoe Regional Planning Agency, intended to protect Lake
Tahoe from storm water runoff, which prohibited residential single-family home
construction was held to be not defensible under the "nuisance exception" of the Lucas
case, because under California law, construction of a single-family house does not
constitute a nuisance. The regulation was held to have effected a taking, entitling
property owners to compensation. Tahoe -Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 34 F.Supp.2d 1226, 1251-55 (D. Nev., 1999). Although the
trial court's decision was reversed in part, and remanded by Tahoe -Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764 (9" Cir., 2000),
Rehearing denied by, Rehearing en bane denied by Tahoe -Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency, 228 F.3d 998 (9w Cir., 2000), the Supreme
Court of the United States has granted certiorari, apparently to examine the decision by
the Ninth Circuit. Tahoe -Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, (Writ of Certiorari granted), 150 L.Ed.2d 749, 121 S.Ct. 2589, 2001 U.S. LEXIS
5208 (2001).
The Cities and LAEDC also point out that the provisions requiring that impervious
coverage be minimized appear to be intended to apply to all land use approvals,
regardless of the physical setting and runoff potential of the subdivision in question. This
lack of any requirement for a "nexus" between the condition for approval and the benefit
to be achieved, is not discussed in the Tentative Draft or Order WQ 2000-11, but it raises
due process an�equal protection issues.
5. The Application of Standard Urban Storm Water Mitigation Plans ("SUSMPs") to
Non -Discretionary, or Ministerial, Approvals Could Violate the "Takings Clause."
An important matter discussed in the Tentative Draft—Fact Sheet/Staff Report and
elaborated on in the Fisher-Swamikannu Technical Report, is that not only are the
SUSMPs to be applied to the co -permittees' discretionary land use decisions, the
Regional Board Staff contemplates that the co -permittees will apply the SUSMPs to non -
discretionary, or ministerial decisions. Apparently Staff does not appreciate that the
reason some decisions are called non -discretionary is that the property owner has a vested
right to the permit in question, and the local official has no discretion to deny the permit.
Any attempt to impose additional requirements, after a right has vested, could result in a
claim by the property owner that her property has been taken without just compensation,
as required by the California and federal Constitutions. Consider this example: a property
owner already has satisfied all requirements for discretionary approvals for construction
of homes in a 100 -home subdivision, through the approval of a "vesting tentative map" 12
and now seeks to pull building permits for construction of a last phase of 10 homes.
Absent the SUSMP, a City, typically through its Building Official, would be required to
issue the building permits if the Building Official determines that the permit application
meets fixed, defined requirements, e.g., single family residences on lots zoned for single
a A vesting tentative map, if granted, will confer a vested right to proceed with the development in accordance with
ordinances, policies and standards in effect at the time the application for approval of the vesting tentative map is
complete. California Gov't Code § 66498.1; see, Kaufman & Broad Central Valley, Inc. v. City of Modesto, 25
Cal.App.4ih 1577 (1994).
LA 48011 Ivl 17
family. Imposition of a new requirement, to "Concentrate or cluster Development on
portions of a site while leaving the remaining land in a natural unaltered condition"
for the last ten single-family homes in the development, after the right to develop
those lots had vested, could be argued to be a "taking" of private property (the nine
lots which now must be left in a natural unaltered condition), for public use without
just compensation. It is one thing to condition the issuance of a building permit on
adherence to a new building code requirement. It is another thing altogether to require a
landowner with a vested right to develop ten lots to leave nine out of ten lots in a natural
undisturbed condition and to concentrate or cluster development on one lot.
6. The Tentative Draft—Fact Sheet/Staff Report Fails to Address the Practical
Difficulties of Application of the SUSMPS to Non -Discretionary Approvals, An
Application Which Render the SUSMPs Unworkable.
The Regional Board Staff apparently fails to appreciate the practical and legal difficulties
presented by what appears to be a well-intentioned attempt to apply the development
approval process not only to projects subject to local discretionary approvals
("discretionary projects"), but also apparently to projects that have been processed"to the
point that they have already obtained all locally -required discretionary approvals ("non -
discretionary projects"). 13 Ordinarily, the authority of an official such as a Building
Official, who issues building permits, would not extend to land use design decisions
already approved by a planning commission or a city council.
Generally, developers pull building permits only after all other aliprovals have been
received, and only for the lots they are going to build upon immediately. If the Regional
Board intends the SUSMPS to apply to the issuance of building permits, after all other
approvals have been received, this would put the local jurisdiction in the position of
having to alter its development standards after development has been approved, for
projects that had already achieved all required discretionary approvals when the SUSMPS
were adopted, by requiring an official such as a building official to refer an application
for building permits back to a planning commission or city council to gain approval of
just how the project is to be "concentrated or clustered." Therefore, it would appear that
imposing a requirement to "Concentrate or cluster Development on portions of a site
while leaving the remaining land in a natural unaltered condition' would not be
within the authority of a building official at the building permit application stage. The
Cities and LAEDC suggest that it is entirely possible that a court might regard this last -
M. Fisher & X. Swamikannu, STORM WATER MITIGATION REQUIREMENTS FOR PRIORITY
PLANNING PROJECTS FOR THE PROTECTION OF WATER QUALITY, October 2001. Please note that CEQA
applies only to discretionary projects. Public Resources Code § 21080(a). To the extent that a particular
development project has obtained its local entitlements, by definition the local CEQA analysis would have been
completed. This raises the issue that any subsequent modification of the project (i.e., clustering a non-clustered
subdivision) would not have been analyzed. Further analysis may be required to address new or changed significant
impacts associated with the altered development should a subsequent approval be required, for instance, the issuance
of building permits.
LA 48011 1 v 1 18
minute referral back to the start, or at least the middle, of the approval process as a
compensable temporary taking based on bureaucratic re -referrals. 14
These takings issues are not discussed in the Tentative Draft or the Fisher-Swamikannu
Technical Report, and were not raised in prior SUSMP proceedings. We respectfully
request that the Board carefully reconsider the SUSMPs, and that the application of the
SUSMPs to nondiscretionary projects be deleted.
The "cause or contribute" Language of Parts 2.1 and 2.2, on page 18, Should be
Revised.
Receiving Water Limitations must reflect an iterative approach, as pointed out in the
SWRCB's Draft Order in the San Diego Petitions, SWRCB/OCC Files A-1362, and a -
1362(a).
8. The Tentative Draft—Fact Sheet/Staff Report Incorrectly Asserts that the Imposition
of "Peak Flow Control" Measures is Within the Authority of the Regional Board.
Part 4.D.2, of the Tentative Draft, on page 40, would impose the following requirement:
[c]ontrol the post -development peak storm water runoff discharge rates,
velocitigs (peak flow control).
The Cities and LAEDC respectfully submit that such effects do,.not constitute the
"discharge of pollutants," as that phrase is defined in the CWA or "wastes" as that term is
used in the California Water Code. The Board's authority under the CWA's MS4
program is limited to controls on pollutant discharges. MS4 permits are to include
"controls to reduce the discharge ofpollutants ... and such other provisions ... appropriate
for the control of such pollutants." CWA § 402(p)(3)(b)(iii), 33 U.S.C. §
1342(p)(3)(b)(iii), (emphasis added). The term "pollutant" as used in sections 301 and
402 is defined by the CWA to mean:
dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt
and industrial, municipal, and agricultural waste discharged into water.
33 U.S.0 § 1362(6), CWA § 502(a). Water itself is simply not within this statutory
definition of "pollutant." The erosive capacity of water discharged from an MS4 into
waters of the United States or the State, is not subject to the C WA's MS4 program.
CWA case law has found the definition of "pollutant" to not include the release of water
which causes downstream erosion. In National Wildlife Fed'n v. Gorsuch, 693 F.2d 156
14 See, e.g., City of Monterey v. Del Monte Dunes at Monterey, Ltd, 526 U.S. 687, 698 (1999); Littoral Development
Co. v. San Francisco Bay Conservation Com. 33 Cal. App.4 211, 221 (1995).
LA #80111 v 1 19
(D.C. Cir. 1982), the National Wildlife Federation argued that dams require NPDES
permits, and that discharges from dams amounted to a "discharge of a pollutant." The
court acknowledged that among the water quality problems that may be caused by dams
is the discharge of waters with the potential to cause downstream erosion. While stating
that discharges from dams usually contain less sediment than upstream water, the court
stated that, "the river will `tend to restore its equilibrium [sediment] loading by scouring
the downstream channel."' Id. at 164 (alteration in original). However, the court held
that discharges of water from dams were not discharges of pollutants, and did not fall
within the CWA definition of "pollutant" and did not require a NPDES permit. See id. at
171-72.
The Cities and LAEDC respectfully invite the attention of the Board to the "Response to
Comments," October 11, 2001, at page 7 of 12. There, Staff relies on a Supreme Court
case, Public Utilities District No. I v. Washington Dep't ofEcolo�y, 511 U.S. 700 (1994)
as authority for the proposition that the Board has the authority to require municipalities
to regulate storm water flow rates in a CWA MS4 permit. The Cities and LAEDC
suggest that a close reading of the cited case reveals that the PUD No. 1 case is not on
point. PUD No. 1 was a hydroelectric power plant licensing case which arose under
CWA § 401(d), not CWA § 402(p), which has to do with minimizing the discharge of
pollutants from MS4s. CWA § 401(d) has nothing to do with minimizing storm water
flows from MSP. Similarly, the quote from 64 Federal Register 68761 in "Response to
Comments," October 11, 2001, at page 7 of 12, is incomplete. The missing' language
makes it clear that EPA intends peak flow controls to be a matter within the discretion of
local governments, not an item to be dictated by a state, acting pursuant to a delegation of
EPA's authority:
EPA recommends that municipalities consider these factors when
developing their post -construction storm water management program.
64 Fed. Reg. 68761, December 8, 1999.
The Cities and LAEDC urge the Board to delete Part 4.D.2, of the Tentative Draft, on
page 40.
9. The Tentative Draft Should be Revised to Exclude Retail Gasoline Outlets.
Parts 4.13.3.b)(4) and (5), on page 42 of the Tentative Draft, require each Co -permittee to
apply the SUSMPs to commercial developments, including restaurants and Retail
Gasoline Outlets. The Tentative Draft—Fact Sheet/Staff Report fails to mention a
significant point: in the preamble to the promulgation of the Phase I regulations, the
U.S. EPA stated that "EPA views gas stations as retail commercial facilities not
covered by this regulation. It should be noted that SIC classifies gas stations as
retail." 55 Fed.Reg. 48013-14, Nov. 16, 1990.
In view of EPA's determination that gas stations, as they are retail facilities, are not
covered by the Phase I regulations, Parts 4.D.3.b)(4) and (5), on page 42, should be
LA #8011 M 20
revised to cite specific authority for the proposition that restaurants may be covered by
the Order, or Parts 4.D.3.b)(4) and (5), on page 42 of the Order should be deleted.
10. The Board Lacks the Authority to Impose the Requirement of Part 4.D.13, on page
47 of the Tentative Draft, for Co -permittees to Conduct a "General Plan Update."
There is nothing in California Law which assigns to Regional Boards the authority to
require local governments to conduct a "General Plan Update." See Point 3, above.
11. The Tentative Draft Should Assign Responsibility for Sanitary Sewer Overflows to
POTWs, Not Cities.
The Tentative Draft, at Part 4.F.1, under the heading of minimizing "storm water impact
from public agency activities" would assign responsibility for implementing "a response
plan for overflows of the sanitary sewer system...." The response is to include
"immediate response to overflows for containment...." Sanitary sewers are part of
publicly owned treatment works ("POTWs"). The duty to respond to sanitary sewer
overflows ("SSOs") should rest with the operator of the POTW, not the city through
which the POTWs sanitary sewers flow. POTW operators know where their sanitary
sewer lines are, and have the duty under the CWA to deal with SSOs. The Board should
not attempt to shift that burden to the Cities.
12. Requiring Each City to Install Trash Receptacles at "All Transit Stops Within Its
Jurisdiction" Exceeds the Board's Authority, and is a Responsibility Which Should
Rest with Transit Agencies, Not Cities.
Part 4.F.5.d) of the Tentative Draft would require each "Permittee" (i.e., each city) to
"Place trash receptacles at all transit stops within its jurisdiction and maintain them."
The term "transit stops" is not defined, and it is not clear whether it includes bus stops,
school bus stops, and rail stops. No studies are cited to establish whether the litter
recovered would be sufficient to justify this major capital expenditure. No lead time is
provided to procure and distribute the "trash receptacles" or to hire staff and obtain
equipment necessary to empty the receptacles, or to provide for a competitive process to
hire a contractor to provide these services.
Part 4.F.5.d) of the Tentative Draft should be deleted or deferred and reevaluated
following consultation with the California Integrated Waste Management Board.
13. The Definition of "Redevelopment" in the Order is Inconsistent with the Controlling
EPA Definition of "Redevelopment." A point with great significance for the economic
redevelopment of developed cities, but not addressed in the Tentative Draft—Fact
Sheet/Staff Report, is that the Tentative Draft, at page 70, defines 'Redevelopment" to
mean "the creation, or addition or replacement of at least 5,000 square feet of impervious
surface area on an already developed site." The definition of "Redevelopment" conflicts
with the EPA's definition. In promulgating the Phase II final rules, EPA stated
LA #801 I 1 v 1 21
EPA intends the term "redevelopment" to refer to alterations of a
property that change the "footprint" of a site or building in such a
way that results in the disturbance of equal to or greater than 1 acre
of land. The term is not intended to include such activities as exterior
remodeling, which would not be expected to cause adverse storm water
quality impacts and offer no new opportunity for storm water controls.
64 Fed.Reg. 68760, December 8, 1999. The Cities and LAEDC are aware of no evidence
to support the Regional Board's use of a 5,000 square foot, rather than EPA's one acre,
threshold. Similarly, the Cities and LAEDC are aware of no authority for the proposition
that the EPA's one -acre threshold, and its exemption for remodeling, are not binding on
the Regional Board for purposes of this Order.
The definition of "Redevelopment" should be changed to
alterations of a property that change the "footprint" of a site or building in
such a way that results in the disturbance of equal to or greater than 1 acre
of land. The term is not intended to include such activities as exterior
remodeling, which would not be expected to cause adverse storm water
quality impacts and offer no new opportunity for storm water controls.
14. Part 3.E, RegieWing "Discharges Within Boundaries," Fails to Exempt Discharges
from Federal and State Facilities Within a Co-permittee's Boundaries.
In Part 3.E, "Responsibility of the Permittees," on page 21, the first sentence of the
introductory paragraph provides "Each Permittee is required to comply with the
requirements of this Order applicable to discharges within its boundaries, and not...."
This statement does not reflect consideration of the possibility that pollutants may be
present in flows (e.g., sheet flows from parking lots or streets) which originate on a
federal or state facility within a Permittee's boundaries, but which, because it is a federal
or state facility, such as a public high school, is not subject to the Permittee's authority.
Nor does this provision recognize the limitations on the authority of the Co -permittees set
forth in Findings B.2.
Recommendation: Revise the sentence to read, in pertinent part: "Each Co -permittee is
required to comply with the requirements of this Order applicable to discharges which
originate within its boundaries at places which are subject to its authority, and subject to
the limitations of Finding B.2, and not...."
15. Part 3.G.2.c), Which Attempts to Extend the Order to Reach "Potential
Contribution" of Pollutants is Overbroad.
Part 3.G.2.c), (on page 25) which implements 40 CFR § 122.26(d)(2)(i)(A), without
citing that section, goes beyond the requirements of the CWA and 40 CFR §
122.26(d)(2)(i)(A) by attempting to impose a requirement that Co -permittees are to
possess the legal authority to control something called "potential contribution." of
LA #801110 22
Pollutants. Neither the Clean Water Act nor EPA's Storm Water regulations say anything
about "potential contribution" of pollutants. The "potential contribution" notion is also
contrary to the exemption afforded by the "no exposure" conditional exclusion of 40
C.F.R. § 122.26(g). Drawing a line between the presence of a pollutant within city
boundaries, but within the "no exposure" exclusion and the point at which the potential
pollutant lapses to a state of "potential contribution" is to ask the impossible. The
Board's authority is limited to requiring permitees to reduce the discharge of pollutants to
the maximum extent practicable, and does not extend to the regulation of "potential
contributions."
Recommendation: Part 3.G.2.c), (on page 25) should be revised by deleting the
parenthetical "(including potential contribution)."
16. The Definition of "Illicit Disposal' is Overbroad.
In PART 5, DEFINITIONS, on page 66, "Illicit Disposal" is defined to mean "any
disposal, either intentionally (sic) or unintentionally (sic) of material(s) or waste(s) that
can pollute storm water." This definition would carry this Order far beyond the reach of
the Clean Water Act. The Congress, in enacting the Clean Water Act, prohibited the
discharge of 'Pollutants," a term which it defined. While the term "Pollutant" is defined
in PART 5, DVINITIONS, that definition is not used here in the definition of "Illicit
Disposal." Instead, the definition of "Illicit Disposal" uses the vague term "can pollute."
The use of the term "can pollute" rather than the defined term "Discharge of a Pollutant"
might be construed as meaning something other than "Discharge of a Pollutant." This
lack of precision invites disagreement and, potentially, litigation. Moreover, the
definition is not limited to discharges into MS4s, but could be construed to apply to
disposal into solid waste containers.
Recommendation: The definition of "Illicit Disposal" should be changed to "the
unpermitted Discharge of a Pollutant into a Municipal Separate Storm Sewer System."
Dated: November 12, 2001 Respectfully submitted,
Burke, Williams & Sorensen, LLP
By Rufus C. Young, Jr.
LA 480111v1 23
COMMENTS OF THE COALITION FOR PRACTICAL REGULATION
r
227/065121-0068
235553.01 AM01
ON THE
LOS ANGELES REGIONAL WATER
QUALITY CONTROL BOARD
DRAFT NPDES PERMIT NO. CAS004001
DATED OCTOBER 11, 2001
Richard Montevideo, Esq.
Rutan & Tucker, LLP
611 Anton Boulevard
Costa Mesa, California 92626
Phone: (714)641-5100
Fax (714)546-9035
Dated: November 13, 2001
a
A. THE LEGAL AUTHORITY PROVISIONS IN THE PERMIT CONFLICT WITH
STATE AND FEDERAL LAW AND THE PERMIT VIOLATES THE MEP
STANDARD
Under Section 402 of the Clean Water Act, ("CWA"), (33 U.S.C. § 1342(p)(3)(B),
the CWA authorizes the issuance of permits for discharges "from" municipal storm
sewers." (33 U.S.C. § 1342(p)(3)(B).) NPDES Permits are not authorized for
discharges "to" the municipal storm sewer under the CWA or otherwise. The State
Water Resources Control Board recently supported this interpretation in a draft order
dated November 2, 2001 ("Draft Order") concerning a petition involving the San Diego
Regional Board's MS4 NPDES Permit for San Diego County. The State Board
commented that: "[w]e find that the permit language is overly broad because ,it applies
the MEP standard not only to discharges "from' MS4s, but also to discharges "into"
MS4s." (Draft Order, p. 11.) The Tentative Permit in issue is similarly overly broad, as it
misapplies the MEP standard and attempts to require municipalities to control, inspect
and regulate the discharge of pollutants to MS4s," as opposed to "from' MS4s. As
such, the Tentative Permit is contrary to the Clean Water Act and the Porter -Cologne
Act.
Moreover, the regulations under the CWA only require that municipalities
demonstrate "Adequate Legal Authority" as necessary to "[c]ontrol through ordinance,
permit, contract, order or similar means, the contribution of pollutants to the, municipal
storm sewer by storm water discharges associated with industrial activity and the
quality of storm water discharges from sites of industrial activity." There are no other
requirements imposed upon a municipality to "control" the contribution of pollutants to
the MS4 and thus, no authority to require municipalities to regulate through "ordinance,
permit, contract, order or similar means" discharges from any other facilities "to" its
MS4.
The terms of the Tentative Permit thus exceed the MEP standard and the terms
of the CWA in each location where it requires that municipalities "control" the discharge
of pollutants "to" their MS4. For example, on page 25 of the Tentative Permit, under
section G, entitled "Legal Authority," subsection 2, the Permit requires that the
Permittees possess adequate legal authority to: (c) "Control pollutants, including
potential contribution, in discharges of storm water runoff associated with industrial
activities (including construction activities) to its MS4 and control of the quality of storm
water from industrial sites (including construction sites)..., [and] (d) Carry out all
inspection, surveillance, and monitoring procedures necessary to determine compliance
and non-compliance with permit conditions, including the prohibition of illicit discharges
to the MS4. Permittees must possess authority to enter, sample, inspect, review and
copy records, and require regular reports from industrial facilities (including
construction sites) discharging polluted or with the potential to discharge polluted storm
water runoff into its MS4." (Tentative Permit, p. 25.)
The requirement of "controlling" pollutants "to" the MS4 including "potential
contribution," and requiring the entry, inspection, and copying of records and regular
227/065121-0068
235553.01 AM01 -1 -
reporting, from industrial facilities that have the "potential to discharge polluted storm
water runoff," are requirements that are not authorized anywhere under the Clean
Water Act ("CWA") or the Porter -Cologne Act, and are requirements that go beyond the
MEP standard and any authority that either the Regional Board or the Permittees may
otherwise have under State or federal law.
The regulations to the CWA further confirm this legal standard in part in the
"Adequate Legal Authority" section of the regulations, wherein the "control" of the storm
water discharges in an MS4 Permit is clearly to be limited to storm water discharges
that are associated with industrial activity, and, moreover, specifically the "contribution
of pollutants," rather than the "potential contribution' of pollutants. Thus, the
expansion of the MEP standard to "controlling" the discharge of any pollutants in storm
water "to" the MS4, conflicts with State and federal law, as does the attempt to require
municipalities to control the "potential contribution' of pollutants to or from the MS4.
Additionally, Section 2(e) on page 25 of the Permit requires that the Permittees:
Require the use of best management practices ("BMPs") to prevent or reduce the
discharge of pollutants to MS4s to the maximum extent practicable," and subsection (f)
provides that the Permittees are to "[r]equire that treatment control BMPs be properly
operated and maintained to prevent the breeding of vectors." (Tentative Permit p. 25.)
Such provisions of the Permit again are in conflict with the terms of the Clean Water Act
and the MEP standard and must be revised accordingly. As set forth in the State
Board's Draft Order intbonnection with the San Diego Permit:
The permit should also be revised so that it requires that
MEP be achieved for discharges "from" the municipal sewer
system, and for discharges "to" waters of the United States,
but not for discharges "into" the sewer system. (See Draft
Order, p. 17.)
Similarly, under Part 3.A of the Tentative Permit in issue, the Regional Board
seeks to impose certain requirements on the Permittees as a part of the Stormwater
Quality Management Program "SQMP," "so as to reduce the discharges of pollutants in
storm water to the maximum extent practicable," and which is to be implemented by the
Permittees, along with additional controls where necessary, "to reduce the discharge of
pollutants in storm water to the maximum extent practicable." (See Tentative Permit, p.
20, Part 3.A. and Part 3.B.)
Similar language is utilized in the definition of "Maximum Extent Practicable
Standard" set forth in Part 4 on page 27 of the Tentative Permit, whereby the Permit
seeks to define the standard as one of reducing "the discharge of pollutants in storm
water to the MEP from the permitted areas in the County of Los Angeles to the waters
of the State," as opposed to reducing the discharge of pollutants "from" municipal storm
sewers. (See 33 USC § 1342(p)(3)(8).)
Further, similar language is contained in Versions A and B of the
Industrial/Commercial Facilities Program which again conflicts with the MEP Standard
227/065121-0068
235553.01 AM01 -2-
(i.e., "[t]he objective is to reduce pollutants in storm water runoff to the maximum extent
practicable ...."). Finally, there is language in the Industrial/Commercial Facilities
Program Versions A and B in connection with BMP implementation, which mandates
Permittees require implementation of other BMP's that will achieve the equivalent
reduction of pollutants "In" storm water discharges.
In sum, throughout the Tentative Permit, the Regional Board has attempted to
improperly expand the MEP standard and the requirements Clean Water Act and the
Porter -Cologne Act, adopted in part to carry out the requirements of the Clean Water
Act, see Water Code § 13370 et seq.), in a fashion that goes beyond the terms of these
statutory requirements.
B. THE VARIOUS VERSIONS OF THE INSPECTION, ENFORCEMENT,
MONITORING AND REPORTING OBLIGATIONS TO BE IMPOSED ON THE
PERMITTEES FOR INDUSTRIAL/COMMERCIAL FACILITIES CONTINUE TO
BE IN EXCESS OF THE AUTHORITY PROVIDED UNDER STATE AND
FEDERAL LAW.
With respect to those portions of the Permit requiring Permittees to inspect
certain industrial and commercial facilities, such as restaurants, automotive repair
shoos, and retail gasoline outlets, the CWA regulations are very clear that municipalities
are only required to conduct inspections of "industrial facilities," and even further, with
limited exception not applicable here, only those industrial facilities that "the municipal
permit applicant determines are contributing a substantial pollutant loading to the
municipal storm sewer system." (See 40 CFR § 122.26(d)(2)(iv)(C).)
Thus, under the plain language of the CWA regulations, the inspection
obligations on municipalities are expressly limited to inspections of "industrial facilities,"
and at that, only as necessary to determine compliance and noncompliance with permit
conditions where the "municipal permit applicant' determines that such industrial
facilities "are contributing a substantial pollutant loading to the municipal storm
sewer system." There is, moreover, no requirement or other legal authority to compel
municipalities to "control' pollutants from any "commercial' facility, or to inspect any
"commercial' facility.
In addition, there is no authority that either requires or authorizes Permittees to
enter, sample, inspect, review and copy records of facilities without a warrant and
probable cause. Without the consent of the property owner, and without at least
reasonable suspicion of a violation, combined with exigent circumstances, warrantless
searches of facilities, along with the seizure of company, records plainly violates the
Fourth Amendment to the United States Constitution. Similarly, in the definition of
"Inspection" in the Tentative Permit, the Regional Board seeks to require, as a part of all
such inspections, the interrogation of facility personnel ("interview of facility personnel"),
which, if is done in the context of a "violation," may in and of itself result in a violation of
the Fifth Amendment to the U.S. Constitution. (See Tentative Permit, p. 66.)
227/065121-0068
235553.01 AM01 -3-
As discussed in our prior Comment Letter of August 6, 2001, Regional Board
staff had previously relied upon ordinances adopted by certain Los Angeles County
cities, to claim that warrantless inspections of facilities would be legally appropriate.
Board Staff further claimed that such Ordinances were broad enough to comply with the
inspection requirements of the Permit. Yet, the Ordinances of three of the cities
referenced at the workshop (Beverly Hills, Hermosa Beach and EI Monte) were
reviewed, and, all contained language showing that these Cities were in fact concerned
about appropriate authority to enter upon private property, without a warrant, and, each
Ordinance expressly conditioned warrantless entry upon consent by the property owner.
(See attachments to August 6, 2001 Comment Letter.)
The inspection process set forth under Part 4.C. of the Permit includes three
different versions of the program, presumably with Version A being Staff's preferred
version, and Version C being Staff's least preferred version. All three versions include a
requirement of inventorying certain facilities by the Permittees, but with Version C
entitled "Industrial/Commercial Education Program," requiring the Principal Permittee (in
consultation with the Permittees) to maintain and update a database for listing
industrial/commercial facilities by SIC number.
Both Versions A and B, without appropriate findings and without evidentiary
support, identify facilities such as restaurants, automotive service stations, automotive
dealers/gas stations and wholesale trade (scrap, auto dismantling, fabricated metal
products, motor freigf$, chemical/allied products, and primary metal product facilities) as
high priority categories. Yet, none of these facilities, unless subject tq a Phase I permit,
are "industrial facilities" subject to "control" by the Permittees under either the CWA or
the regulations thereunder. Accordingly, there is no authority for the Regional Board to
include these facilities or any others except those identified in the regulations, as "high
priority" categories, as such is contrary to the express language in the regulations
(which gives this discretion to the municipalities, i.e., those facilities the "municipal
permit applicant determines are contributing a substantial pollutant loading to the
municipal storm sewer system" (40 CFR 122.26(d)(iv)(C)).)
In addition, under Versions A and B of the Industrial/Commercial Program, "lower
priority categories" facilities are to be visited within 24 months from the Permit's effective
date, and the Permittees are to develop and implement a program to conduct "spot
checks" of such lower priority facilities after the initial 24 months, excepting only those
facilities that pose "no risk of exposure." As the provisions of the CWA and the
regulations thereto do not provide the authority for the Regional Board to impose such
inspection requirements on municipalities, these provisions are again contrary to the
express language of the regulations, and similarly violate the MEP standard, as they
constitute controls on discharges "td' the MS4.
To the extent the CWA regulations are being interpreted by the Regional Board
to impose on municipalities, requirements that go beyond controlling the discharge of
pollutants to the maximum extent practicable "from" the MS4, such an interpretation is
contrary to the clear terms of the Clean Water Act itself, and the regulations. Further, to
the extent the Regional Board interprets the regulations in such a manner so as to
227/065121-0068
235553.01 AM01 -4-
exceed the authority provided to EPA in the CWA, or to be contrary to the CWA, such
an interpretation is similarly invalid. (See, e.g. Chevron USA v. Natural Resources
Defense Council, Inc. 467 U.S. 837, 842-844 (1984).)
In addition to the lack of authority to impose such obligations under federal law, it
is apparent that under State law as well, the Regional Board cannot compel
municipalities to conduct such inspections, unless there is express statutory authority to
do so. In a 1993 California Attorney General Opinion involving the responsibility of local
building departments to enforce the access requirements of the Americans with
Disabilities Act ("ADA") (see 76 Op. Atty. Gen. Cal. 130), the Attorney General
concluded that since the ADA did not provide for the enforcement of federal law by local
building officials, State law did not and could not mandate local building officials to
enforce the federal access requirements under the ADA. The Attorney General found
that in enforcing State and local building regulations, local building officials may not
elect to assume greater or different enforcement powers than those specifically or
necessarily implied under California law (citing Ferdig v. State Personnel Board (1969)
71 Cal.2d 96, 103-104), and concluded that: `jw]e therefore conclude that local
building departments are not responsible for enforcing the access requirements
of the ADA; however, they are required to enforce State and local building codes which
have incorporated the federal requirements. Local building departments are not
authorized to elect to enforce the federal access standards apart from the CBSC
and local codes. "
i
Similarly, in a 1984 Attorney General decision involving whether a city or county
has the authority to establish a licensing and inspection prograr'n to regulate the
transportation of hazardous materials over roadways within its jurisdiction (67 Op. Atty.
Gen. Cal.1), the Attorney General again concluded that a city or county has only limited
authority and that, unless the State Legislature "expressly authorized" a licensing or
inspection program at the local level, a local program would be in conflict with among
other matters, the "constitutional grant of the police powers authority'.
Accordingly, the terms of the Tentative Permit concerning the inspection of
industrial/commercial facilities are not authorized anywhere under the Clean Water Act
or the Porter -Cologne Act, and are invalid, as neither the Regional Board nor the
Permittees have the respective authority to impose such inspection requirements or to
conduct such inspections.
C. THE RECEIVING WATER LIMITATION LANGUAGE UNDER PART 2 OF THE
DRAFT PERMIT EXCEEDS THE STANDARDS AND AUTHORITY PROVIDED
UNDER STATE AND FEDERAL LAW
As discussed above, under Section 402 of the CWA, permits for discharges
"from municipal storm sewers" are to be issued to "require controls to reduce the
discharge of pollutants to the maximum extent practicable ...... Similarly, under
Section 13263(a) of the Porter -Cologne Act, waste discharge requirements ("WDRs")
are to be issued:
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... with relation to the conditions existing in the disposal area or receiving
waters upon, or into which, the discharge is made or proposed. The
requirements shall implement any relevant water quality control plans that
have been adopted, and shall take into consideration the beneficial uses
to be protected, the water quality objectives reasonably required for
that purpose, other waste discharges, the need to prevent nuisance, and
the provisions of Section 13241. (Cal. Water Code § 13263.)
Under Section 13241 of the Porter -Cologne Act, the factors to be considered are
to include: (a) Past, present, and probable future beneficial uses of water; (b)
Environmental characteristics of the hydrographic unit under consideration, including
the quality of water available thereto; (c) Water quality conditions that could
reasonably be achieved through the coordinated control of all factors which affect
water quality in the area; (d) Economic considerations; (e) The need for
developing housing within the region. (See Cal. Water Code § 13241).
As written, Parts 2.1 and 2.2 of the draft Permit prohibit "discharges from the
MS4 that cause or contribute to the violation of water quality standards or water quality
objectives," and discharges from the MS4 storm water which "cause or contribute to a
condition of nuisance." Such prohibitions and requirements are contrary to the MEP
standard under the CWA, i.e., to control the discharge of pollutants "from" MS4s "to the
maximum extent practicable," and the standards under the Porter -Cologne Act, i.e.,
water quality objectivSs "reasonably required" and water quality conditions that "could
reasonably be achieved." (Water Code §13263(a) and 13241(c).)
The very purpose of issuing an NPDES Permit and WDRs is to specifically allow
for the discharge of storm water (which, by definition, includes storm water runoff) and
to specifically allow for the discharge of "waste" (to the extent the pollutants in storm
water runoff constitute waste) to, among other areas, "receiving waters." In fact, the
CWA includes a very specific process, i.e., the TMDL process, which recognizes that
water quality objectives are to be met over time through an "iterative process." The
"iterative process" was moreover, recently supported by the State Board in Order No.
99-05, and more recently in the State Board's Draft Order in connection with the San
Diego MS4 NPDES permit. In the Draft Order, the State Board confirmed that the
process to be followed is to be an "iterative approach," which focuses on timely
improvement of BMPs: "We will generally not require 'strict compliance' with water
quality standards through numeric effluent limitations and we continue to follow an
iterative approach, which seeks compliance over time. The iterative approach is
protective of water quality, but at the same time considers the difficulty of achieving
full compliance through BMPs that must be enforced throughout large and
medium municipal storm sewer systems." (Draft Order, p. 9.)
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With respect to the San Diego MS4 Permit, the State Board tentatively
determined' that the receiving water limitation language was deficient as it did not make
clear that the "iterative process" was to be applied to both the receiving water limitation
language as well as the language concerning exceedances of water quality objectives .2
With the Tentative Permit, additional language must be added to clarify that
compliance with the iterative process constitutes compliance with the terms of the
Permit, and that so long as Permittees are taking significant steps towards achieving
compliance with water quality objectives and are making reasonable progress in this
regard, the Permittees are in compliance with the relevant terms of the Permit and thus,
are in compliance with the Clean Water Act and the Porter -Cologne Act. In a recent
State Board Order, State -Wide General NPDES Permit for Discharges of Aquatic
Pesticides to Surface Waters, Order No. 2001-12 DWQ, in fact the State Board included
language consistent with the change requested herein. In the Receiving Waters
Limitation Section in Order No. 2001-12 DWQ, the State Board concluded that: "A
discharger will not be in violation of receiving water limitation F.2 as long as the
discharger has implemented the BMPs required by this General Permit and the
following procedure is followed:...." (See Order No. 2001-12-DWQ, p. 9.)
Accordingly, similar language must be added to the Tentative Permit since,
without such language, the Permit will be inconsistent with the MEP standard and in
conflict with the standard for issuing WDRs under the Porter -Cologne Act.
D. THE PERMIT VIOLATES THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT. t
1. The Development Planning Requirements are Pre-empted by CEQA.
The provisions of the California Environmental Quality Act ("CEQA") "occupy the
field" of mitigating adverse environmental impacts from development "projects" and the
imposition of mitigation measures by a public agency to mitigate potentially significant
adverse impacts created by such projects. In Leslie v. Superior Court (1999) 73
Cal.AppAth 1042, the Court found that the State Legislature had expressed its intent to
fully occupy the field of building standards by enacting uniform Statewide building laws,
' The State Board is scheduled to conduct a hearing on its proposed Order concerning the Petition on
the San Diego Permit on November 15, 2001. Once issued, Permittees herein request that a copy of the
State Board's final Order be made a part of this Administrative Record.
2 In the Draft Order, the State Board commented on the ability of the San Diego Regional Board to take
enforcement action for discharges causing or contributing to exceedances of water quality objectives
while the MS4 Permittees are similarly complying with the requirements to improve BMPs over time. In
reviewing this portion of the San Diego Permit, the State Board determined not to strike those provisions,
but did state that "it is our review that it would not be appropriate for the Regional Water Board to take
enforcement action against a Permittee for causing or contributing to an exceedance of a water quality
standard if the Permittee is complying with the procedure set forth in receiving water limitation C.2. We
reached this conclusion with the understanding that dischargers must take significant steps to achieve
compliance with water quality objectives, and that if there is not reasonable progress in improving BMPs,
that Regional Water Boards may take enforcement action " (See Draft Order, p. 10).
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and demanding that local governments adopt Uniform Building Codes and California
building standards. There, the local government was precluded by the doctrine of
preemption from enacting building standards that differed from State standards, unless
a State statute specifically authorized the local government to do so. Also see Building
Industry Assn. v. City of Livermore (1996) 45 Cal.App.41h 719, cited by Leslie v. Superior
Court, where the Court found that:
"Our state Legislature has clearly expressed its intent
to fully occupy the field of building standards.
Consequently, a local government is precluded from
enacting building standards that differ from state standards
unless a state statute specifically authorizes the local
government to do so." (Id. at 724; emphasis added.)
In Public Resources Code sections 21000 and 21001, the Legislature expressed
its intent with the adoption of CEQA, that:
"(f) The interrelationship of policies and practices
in the management of natural resources and waste disposal
requires systematic and concerted efforts by public and
private interests to enhance environmental quality and to
control environmental pollution.
i
(g) It is the intent of the Legislature that all
agencies of the state government which regulate activities of
private individuals, corporations, and public agencies which
are found to affect the quality of the environment, shall
regulate such activities so that major consideration is
given to preventing environmental damage, while
providing a decent home and satisfying living
environment for every Californian."
(Pub. Res. § 21000.)
The Legislature further finds and declares that it is the policy
of the State to:
"(d) Ensure that the long-term protection of the
environment, consistent with the provision of a decent
home and suitable living environment for every
Californian, shall be the guiding criteria in public decisions.
(g) Require governmental agencies at all levels to
consider qualitative factors as well as economic and
technical factors and long-term benefits and costs, in
addition to short-term benefits and costs and to consider
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alternatives to proposed actions affecting the
environment"
(Pub. Res. Code § 21001.)
In adopting CEQA, the State Legislature thus determined that public agencies
are not to approve "projects" if there are feasible alternatives or feasible mitigation
measures, which would substantially lessen the significant environmental effects of
such projects. The term "feasible" is defined under CEQA to mean "capable of being
accomplished in a successful manner within a reasonable period of time, taking into
account economic, environmental, social, and technological factors." (Pub. Res.
Code § 21061.1) It is evident from the express terms of CEQA, that the Legislature has
already established a procedure to be followed to "control environmental pollution," and
to establish "feasible" mitigation measures, which process requires not only the long
term protection of the environment, but also the approval of projects that are consistent
with the provision of a decent home and suitable living environment for every
Californian, as well as the consideration of "alternatives to proposed actions" effecting
the environment.
In fact, in the CWA regulations concerning Phase II Permits, EPA specifically
recognized the importance of conforming with State law, and characterized the
application of such NPDES Permits, stating that they are to require the permittees to
"use an ordinance or✓other regulatory mechanism to address post -construction runoff
from new development and redevelopment projects to the extent allowable under
State, Tribal or local law." (64 Fed.Reg. 68721, 68760; emphasis added.) The
California Legislature has already determined that public agencies are to comply with
the requirements of CEQA in reviewing development "projects" and in imposing
environmental mitigation measures as conditions on the approval of such "projects."
In short, the CEQA process is the legislative process to be followed in
determining the appropriate methods and alternatives to .mitigate adverse impacts on
the environment, including "pollution to the environment" arising from development
"projects." Any attempt by the Regional Board to infringe upon this process of
assessing and mitigating adverse impacts is thus preempted by existing State law.
The Legislature has also identified, through statute and regulation, various
statutory and categorical exemptions to CEQA, which further preempt the attempts by
the Regional Board to regulate "development projects." For example, CEQA only
applies to "discretionary' projects. "Ministerial' projects are expressly exempt from
CEQA's application, i.e., public agencies have no authority to review ministerial projects
for purposes of imposing additional mitigation measures beyond those already included
in the codified standard. (See Pub. Res. § 21080(b)(1).) The exemption of all
"ministerial" projects from the application of CEQA, and thus, from review by local
agencies for purposes of imposing additional mitigation measures under CEQA, is
significant in connection with the Tentative Permit, as the Permit seeks to impose
mitigation measures under the SUSMP provisions to all "projects," whether
"discretionary" or "ministerial." As CEQA expressly exempts ministerial projects from its
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terms, there is no authority for the Regional Board to require municipalities to, in effect,
impose mitigation measures on projects that are otherwise exempt from such mitigation
measures under State law. Such terms of the Permit are impliedly, if not expressly,
preempted by State law.
The State CEQA guidelines also identify a series of exemptions on various types
of projects from the environmental review process, many of which appear to be
.,projects" in which the Regional Board is now seeking to condition their approval on yet
additional environmental mitigation measures. Specifically, Class 2, Class 3, Class 4,
Class 11 and Class 15 "categorical exemptions" under CEQA, appear to be expressly
and/or implicitly overridden by the terms of the Tentative Permit. These categorical
exemptions include: the replacement or the reconstruction of the existing structures or
facilities when a new structure is located on the same site as the original facility and will
serve the same purpose and capacity of the original structure (14 CCR 15302); the
construction of small new facilities, new equipment and facilities and small structures,
and the construction of three or fewer single family homes in urban areas (14 CCR
15303); minor alterations to land such as grading, gardening and landscaping that do
not affect sensitive resources (14 CCR 15304); the construction or replacement of minor
structures to existing facilities (e.g., signs, small parking lots, portable structures) (14
CCR 15311); and the subdivision of four or fewer parcels in urban areas (14 CCR
15315). Each of these categorical exemptions will be overridden by the Regional
Board's attempt to impose the subject development planning requirements on various
projects throughout thf; County.
Given that the State Legislature has already "occupied the field" on the process
to follow in imposing mitigation measures on development projects, any attempt by a
regional board to adopt provisions that are contrary to State law are impliedly, if not
expressly, preempted. (See e.g., Leslie v. Superior Court, supra, 73 Cal.App.4th 1042,
where the Court found that a conflict existed between a City ordinance and general
State laws, where the ordinance duplicated, contradicted or entered an area which
is fully occupied by general law, either expressly or by Legislative implication.)
In the instant case, both the Regional Board and the Permittees are without
authority to take action to adopt mitigation measures on projects that are categorically
or statutorily exempt under CEQA, unless such mitigation measures are otherwise
expressly required by State or federal law, or to take action that is inconsistent with or
contrary to the policies and provisions of CEQA. As such, the Permittees herein
request that the terms of the Tentative Permit be revised so as to be consistent with the
terms under CEQA.
2. The Regional Board Has No Authority To Modify The Guidelines To
CEQA.
In addition to the concerns of preemption created by the Tentative Permit, under
Part 4.D.12 of the Permit entitled "California Environmental Quality Act (CEQA)
Document Update," the Regional Board seeks to require modifications to existing State
CEQA guidelines, i.e., the Regional Board seeks to modify State law. As the Regional
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Board does not have the authority to impose regulations that modify CEQA, and given
that the Regional Board has failed to comply with requirements of the Administrative
Procedures Act in adopting the subject Permit (see discussion below), provisions
requiring that the Permittees update their CEQA guidelines are contrary to law.
Moreover, the requested changes are unnecessary, as existing CEQA
Guidelines already accomplish the apparent purpose of the Tentative Permit's proposed
changes to CEQA. In addition, the CEQA guidelines contain an Environmental
Checklist (Appendix G to the Regulations), and under Section VIII of this Checklist, the
potential impacts on water quality and impacts to the environment from storm water
runoff, are expressly identified as being impacts to be evaluated by the lead agency. A
copy of this Checklist was previously provided with our August 6, 2001 Comment Letter,
and should already be a part of the Administrative Record for this proceeding.
Accordingly, in light of the existing requirements under CEQA, and beyond the
fact that the Regional Board does not have the authority to amend the CEQA Guidelines
(and otherwise has not complied with the requirements of the Administrative Procedures
Act), the proposed changes to the guidelines are unnecessary, as the matter is already
addressed by the existing guidelines.
3. The Regional Board has Itself Failed to Comply with CEQA.
Water Code Section 13389 exempts the State and Regional boards from
compliance with the requirements from CEQA and the adoption of "waste discharge
requirements," except requirements for "new sources" as defined in the Clean Water
Act. In the instant case, the Tentative Permit will impose permanent requirements on
"new sources" as defined in the Clean Water Act, and thus the requirements of CEQA
must be complied with by the Regional Board prior to the adoption of the subject Permit.
Under the Clean Water Act, "new sources" are defined to mean "any source, the
construction of which is commenced after the publicatjon of proposed regulations
prescribing a standard of performance under this section which will be applicable to
such source, if such standard is thereafter promulgated in accordance with this section."
(33 U.S.C. § 1316(a)(2).) Further the term "source" is defined to mean "any building,
structure, facility, or installation from which there is or may be the discharge of
pollutants." (33 U.S.C. § 1316(a)(3).)
With the instant Permit, any new construction or new facility is a potential "new
source," and thus the requirements of CEQA apply and must be adhered to by the
Regional Board.
E. THE REGIONAL BOARD HAS NO AUTHORITY TO MODIFY STATE LAW
GOVERNING GENERAL PLAN/LOCAL LAND USE REQUIREMENTS.
The Permit language requiring the Permittees to amend, revise or update certain
elements of their General Plans, is contrary to existing State law governing General
Plans and the Regional Board has no authority to issue such an edict. Rather, land use
planning is to be in the hands of local government. (See, Yost v. Thomas (1984) 36
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Cal.3d 561,565.) Further, the draft Permits required General Plan updates to address
matters that are already addressed under existing State law.
Government Code sections 65300 and 65307 require cities to prepare a
Comprehensive General Plan including specific required elements of the General Plan,
such as a land use element, a circulation element, a housing element, a conservation
element, an open space element, a noise element and a public safety element. Under
Government Code section 65302(d), a General Plan must include a conservation
element "for the conservation, development and utilization of natural resources including
water and its hydraulic force, soils, rivers and other waters, harbors, fisheries, wildlife,
minerals and other natural resources." (Gov. Code § 65302(d)). The General Plan
requirements further allow for the 'conservation element' to include, among other
issues, the following:
• Prevention and control of the pollution of streams and other waters.
• Regulation of the use of land in stream channels and other areas required
for the accomplishment of the conservation plan.
• Prevention, control, and correction of the erosion of soils, beaches and
shores.
• Protecti®n of watersheds.
• Flood control.
(See Gov. Code § 65302(d)(2).)
Accordingly, pursuant to Government Code section 65302(d)(2), as well as the
other provisions referenced above, municipalities are already required to consider within
their "conservation element," the prevention and control of the pollution of streams and
other waters. Any attempt by the Regional Board to impose additional requirements on
municipalities to amend their General Plans differently, other than as prescribed by the
State Legislature, is not only preempted by exiting law, it is unnecessary.
Pursuant to Government Code § 65300.9, the Legislature expressed its intent, in
enacting the General Plan requirements, that such provisions are to:
. provide an opportunity for each city and county to coordinate its local
budget planning and local planning for federal and State program
activities, such as community development, with the local land use
planning process, recognizing that each city and county is required to
establish its own appropriate balance in the context of the local
situation when allocating resources to meet the purposes. (Gov.
Code § 65300.9.)
State law thus specifically allows each city and county to establish its own
appropriate balance when allocating resources and when planning for any federal and
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State program activities. The attempt by the Regional Board to impose additional
requirements on the Permittees to revise their individual General Plans is thus directly
contrary to the Legislative policy set forth by the State Legislature, and is a clear
infringement on the sovereign of the Permittees, in particular the local land use authority
of the Permittees. (See Yost v. Thomas (1984) 36 Cal.3d 561, 565 "... the front line
role in land use planning and zoning is in the hands of the local government;" also see
Leslie v. Superior Court, supra, 73 Cal.App.4"' 1042, 1051, where the court concluded
that the California Coastal Commission can conduct only limited administrative review to
ascertain whether a local general plan conforms to minimal requirements of the
California Coastal Act, and that the California Coastal Commission per the Public
Resources Code, "is not authorized to ... diminish or abridge the authority of the
local government to adopt and establish, by ordinance, the precise content of its
land use plan.")
The Clean Water Act as well makes it clear that it was not the intent of Congress
to regulate land use, as such regulation is a function traditionally performed by local
governments. To the contrary, the CWA contains express language showing that
Congress chose to "recognize, preserve and protect the primary responsibilities and
rights of States ... to plan the development and use ... of land and water resources . .
. ." (33 U.S.C. § 1251(b); Solid Waste Agency of Northern Cook County v. Army Corps.
of Engineers, 531 U.S. 159, 174 (2001). This limitation on restricting land use authority
is further supported b the CWA regulations where EPA recognizes the concerns of
municipalities over "7ssible federal interference with local land use planning," and
thereby declined to infringe upon this land use authority. (See 64 -Fed. Reg. 68721,
68742.)
The Regional Board is not authorized to diminish or abridge the authority of a
local government to adopt and establish its own general plan requirements, and the
provisions within the Tentative Permit which infringe on such authority and other local
land use authority, must be deleted from the Permit.
F. THE DEVELOPMENT PLANNING ("SUSMP") REQUIREMENTS CONFLICT
WITH STATE BOARD ORDER NO. WQ-2000-11, AND VIOLATE VARIOUS
OTHER STATE AND FEDERAL LEGAL REQUIREMENTS.
1. Prior Comments on SUSMP Deficiencies are Incorporated Herein.
The comments herein incorporate in their entirety the previous comments made
to the Second Draft of the Permit concerning the Development Planning section, as
none of the deficiencies identified in such prior comments of August 6, 2001 have been
corrected. As explained in the August 6, 2001, comment letter, these defects include:
(1) the inappropriateness of the .75 standard and the lack of findings and substantial
evidence to support this numerical limitation; (2) the failure of the Regional Board to
take into account the requirements of Water Code Sections 13263 and 13241 and
important policy considerations such as housing needs in the region; (3) the failure of
the Regional Board to perform a cost/benefit analysis, and to consider economic
considerations as required by State and federal law; (4) the inability of the Regional
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Board to regulate Environmentally Sensitive Areas in that such areas are already
"subject to extensive regulation under other regulatory programs," (see State Board
Order No. 2000-11, p. 25) and given that such a regulation is preempted by existing
State and federal law; (5) the failure of the Regional Board to adequately consider
adverse impacts to ground water quality, and other unintended consequences such as
vector control problems that may be created by the SUSMP requirements; (6) the over -
breadth of the definition of "redevelopment" and the refusal of the Regional Board to
adhere to the definition of "redevelopment" provided in Order No. 2000-11 and in the
federal regulations (64 Fed. Reg. 68721, 68760);3 (7) the impropriety of applying the
SUSMP provisions to "non -discretionary" projects and the preemption of the area under
State law; (8) the failure of the Regional Board to adequately include provisions to allow
for "regional solutions" as previously recommended by the State Board in Order No.
WQ-2000-11; (9) the impropriety of transferring liability to municipalities for private illicit
discharges, as municipalities have no authority to mandate contractual provisions in
private party agreements; (10) the failure of the Regional Board in the SUSMP to
consider "conditions existing in the disposal area or receiving waters" under Water Code
Section 13263; and (11) the one -size -fits -all nature of the SUSMP, as well as other
comments raised in the August 6, 2001, Comment Letter that remain unaddressed.
2. The SUSMP Provisions Contain Yet Additional Deficiencies
Additional deficiencies exist with the Tentative Permit. For example, an
additional obligation 'khat has been imposed upon the Permittees as a part of the
Development Planning Program, is the obligation of ensuring that the treatment control
BMPs are properly "designed" and maintained in a "manner" that does not promote the
breeding of vectors. Yet, the concern with the breeding of vectors, as a consequence of
The proposed SUSMP provisions remain overly broad with the revisions to the definition of
"redevelopment," and the inclusion of non -discretionary projects into the SUSMP. The Regional Board
has insisted on broadening the definition of "redevelopment" in this permit, despite some two days of
hearing before the State Board challenging the previous SUSMP issued by the Regional Board, and the
State Board's revision of the definition of the term "Redevelopment." Regional Board representatives
have argued that their definition of "redevelopment" and the application of the SUSMP to redevelopment
projects is consistent with the State Board Order, claiming that the State Board inadvertently left out the
reference to "replacement" of 5,000 square feet of impervious surfaces when redefining the term
"redevelopment" in the Order. A review of State Board Order No. 2000-11, clearly shows otherwise.
Order No. 2000-11 recognizes that the definition previously proposed by the Regional Board was
somewhat confusing, and that it was apparent from the testimony at the hearing that the parties had
different understandings of the scope of the term that would be subject to SUSMPs. Nonetheless, the
State Board concluded that in post -hearing briefs, the various parties appear to agree on the actual intent
of the term and specifically that this intent "was to include redevelopment that adds or creates at least
5,000 square feet of impervious surface to the regional development ... "
Thereafter, in the revised definition provided by the State Board, the Board specifically limited the
definition to "the creation or addition of at least 5,000 square feet of impervious surfaces." (Order No.
2000-11, p. 31.)
Accordingly, the State Board expressly recognized that the parties' dispute concerning the breadth of
the definition of the term "redevelopment," and then recognized in two locations, one in the Order itself,
and secondly, in its actual revisions to the definition, that the term was to be limited to the "creation or
addition" of 5,000 square feet of impervious surfaces.
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the SUSMP program, has always been an issue that the Permittees have been
concerned with, as well as other unintended consequences from the SUSMP mandate
(e.g., disparate treatment of economically disadvantaged citizens, i.e., the lack of
environmental justice). However, imposing an obligation on the Permittees to ensure
that the treatment control BMPs are properly "designed" and "maintained" in this
fashion, or in any fashion, is improper, as Permittees are not responsible for controlling
discharges "to" the MS4, and are not and cannot be held responsible for implementing
and regulating BMPs on private property. Rather, the consideration of unintended
consequences such as the breeding of vectors is a concern that the Regional Board
should consider before imposing the .75 numeric design standard, and in evaluating
and allowing for feasible alternatives to the .75 inch mitigation measure. As the Permit
compels the particular mitigation measure, no feasible alternatives can be considered
under CEQA or otherwise, to address these environmental consequences.
Second, the Development Planning Program has been revised to include a new
provision imposing upon Permittees "peak flow control" requirements in natural drainage
systems to "prevent accelerated stream erosion and to protect stream habitat." Such
requirements, although laudable, are not requirements that are covered by the Clean
Water Act or the waste discharge requirements under the Porter -Cologne Act, as
neither statutory scheme allows for or enables the Regional Board to require the
Pernlittees to do anything other than control the quality of the storm water being
discharged into waters of the United States, rather than the "quantity" of water being
discharged. Accordingly, the "peak flow" provisions of the proposed Tentative Permit,
and the attempt to regulate the "quantity" as opposed to the "quality" of the discharge, is
inappropriate and violates State and federal law. '
Third, additional changes were made to the language involving "redevelopment
projects" as well as changes in language concerning the application of SUSMPS
projects within "environmentally sensitive areas." Both of these sets of changes fail to
correct the deficiencies identified in our August 6, 2001 Comment Letter, and in some
cases further exacerbate the legal deficiencies identified therein. The definition of
"Redevelopment" is, moreover, invalid, as it conflicts with the definition provided in the
CWA regulations. (See 64 Fed. Reg. 68721, 68760.) In fact, with the definition of
Redevelopment and the application of SUSMP to such Redevelopment projects, the
Regional Board's actions also conflict with EPAs recommendation to consider "policies
and ordinances that encourage infill development in higher density urban areas, and
areas with existing infrastructure, in order to meet the measure's intent." (64 Fed.Reg.
68722, 68742.)
Fourth, in spite of State Board Order No. 2000-11, and the requirements
imposed upon the Regional Board to develop the basis to apply a numerical design
criteria to Retail Gasoline Outlets ("RGOs"), the Regional Board has failed to do so. In
the Draft Order issued by the State Board in connection with the San Diego Permit, the
State Board disapproved of the San Diego Regional Board's SUSMP, as it applied to
RGOs, specifically because the San Diego Regional Board failed to comply with Order
No. 2000-11. Here, in its findings, the Tentative Permit relies upon a technical report
prepared by both the Los Angeles Regional Board and the San Diego Regional Board,
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a report which has already been reviewed by the State Board in the Draft Order and
found to be nonresponsive to the concerns raised in Order No. 2000-11. Thus, RGOs
should be exempted from the numerical design criteria in the Tentative Permit.
Fifth, in the Tentative Permit, the Regional Board has expanded the application
of the numerical criteria to apply to all post -construction control requirements for the
"industrial/commercial category," to projects that disturb one acre or more of surface
area, by no later than March 9, 2003. Yet there are no supportable findings or other
evidence to justify the expansion of the SUSMP provisions to all such facilities that
disturb one acre or more (as opposed to 100,000 square feet of "impervious surface
area") for such industrial/commercial facilities.
Sixth, the inclusion of all "industrial" facilities within the SUSMP, is inappropriate
as such development planning requirements for industrial facilities are already to be
complied with through the Phase I Industrial Permit regulatory process. In particular,
under the CWA regulations, 40 CFR 122.26(c)(ii)(C) and (D), an application for a permit
for an operator of an existing or new storm water discharge associated with a Phase I
Industrial Activity or associated with a Small Construction Activity (as defined under the
regulations), is to include specific information on "[p]roposed measures to 'control
pollutants in storm water discharges that will occur after construction operations
have been completed," as well as proposed best management practices to control
pollutants in the storm water discharges during construction. (See 40 CFR
122.26(c)(ii)(C) and (d).) The measures to be in place after construction are to include
"an estimate of the runoff coefficient of the site and the increase in impervious area
after the construction addressed in the permit application is completed, the nature
of fill material and existing data describing the soil or the quality of the discharge." (40
C.F.R. 122.26(c)(1)(ii)(D) & (E).) Accordingly, the attempt by the Regional Board to
impose such post -construction control measures on municipalities for Phase I Industrial
Facilities is plainly an improper attempt to transfer this obligation from the State down to
the municipalities.
Seventh, the only CWA regulation that addresses the imposition of source
control measures in the context of an MS4 NPDES Permit, is expressly limited to "runoff
from commercial and residential areas that are discharged from the municipal storm
sewer system," and such controls are, moreover, required to be accompanied by an
estimate of the expected reduction of pollutant loads and a proposed schedule for
implementing such controls. (40 CFR 122.26(d)(iv)(A).) The regulations are thus very
explicit that the source control measures to be included in the proposed management
program are to "address controls to reduce pollutants and discharges from municipal
separate storm source after construction is completed." (See 40 CFR 122.26(d)(iv)(A)
and (A)(1) and (2).) The SUSMP provisions in the Tentative Permit have not been
limited to source control measures designed to address runoff "from the municipal
storm sewer system." As the whole concept of the SUSMP requirements involve
discharges "to" as opposed to "from" the municipal storm sewer system, the entire
development planning program section imposing the SUSMP requirements on the
Permittees violates the express terms of the regulations as well as the clear language of
the CWA itself. (See 33 USC 1342(p)(3)(B).)
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Eighth, the Tentative Permit improperly expands the development planning
requirements to new development and redevelopment that did not previously require a
SUSMP, but which "potentially have adverse impacts on post -development storm water
quality, where one or more of the following project characteristics exist:...... (Tentative
Permit, p. 44.) Again there is no evidence or any findings to support such an expansion
of the SUSMP requirements, and such an expansion violates the MEP standard, the
CWA regulations and the Porter -Cologne Act.
Ninth, there are no findings and no indication that "economic considerations"
have been accounted for, that a cosVbenefit analysis has been performed, or that the
need for developing housing within the region has been considered by the Regional
Board, as required by State and federal law. (Cal. Water Code 13263-13241; 13225;
and 13267; 64 Fed. Register 68722, 68732.) These failures similarly constitute
violations of CEQA and general State law. (See Pub. Res. §§ 21000(g), 21001(d) and
21061.1, and Gov. Code §§ 65580 & 65589.5.) For example, Government Code
Section 65580 confirms the vital statewide importance of decent housing for every
Californian and the importance of considering economics:
The Legislature finds and declares as follows:
(a) The availability of housing is of vital statewide importance, and
the early attainment of decent housing and a suitable living environment
for every Californian, including farm workers, is a priority of the highest
order.
(c) The provision of housing affordable to low- and moderate -
income households requires the cooperation of all levels of
government.
(d) Local and state governments have a responsibility to use the
powers vested in them to facilitate the improvement and
development of housing to make adequate provision for the housing
needs of all economic segments of the community.
(e) The Legislature recognizes that in carrying out this responsibility,
each local government also has the responsibility to consider economic,
environmental, and fiscal factors and community goals set forth in the
general plan and to cooperate with other local governments and the State
in addressing regional housing needs.
Accordingly, low and moderate -income housing developments should be
exempted from the SUSMP requirements, and the .75 standard should not apply to any
housing developments or other development property until the pollutants of concern,
and their sources, have been identified, and until the benefits and costs of
implementing of the .75 design standard on all developments, have been analyzed.
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Tenth, the Regional Storm Water Mitigation Program provisions of the Tentative
Permit were slightly modified to clarify that the regional solutions can apply to more than
just SUSMPs within "new" development. This change is a welcome change that would
allow for broader application of "regional solutions" to the process. Yet, in spite of the
State Board's recommendation encouraging innovative regional approaches, and
recommending that interested agencies, along with the Permittees, develop "regional
solutions so that individual discharges are not forced to create small -scaled projects,"
(Order No. 2000-11), the Regional Storm Water Mitigation Program continues to be
hampered by conditions that are not similarly applied to the site -by -site SUSMPs. The
Regional Program, moreover, remains tentative at best, since even if all of the
conditions imposed upon "regional projects" are complied with, the Regional Board is
still not compelled to approve the regional approach, but need only "consider" the same.
Given that the benefits of "regional solutions" have already been recognized by
the State Board and others, regional programs that comply with the conditions set forth
in the Permit for such programs should be "approved" rather than simply "considered"
for approval, and the Regional Mitigation Program should not be overly restricted .4
Finally, the Tentative Permit does not go far enough in developing a mitigation
waiver fund to be utilized as an alternative for developing a site specific SUSMP. In
Order No. 2000-11, the State Board determined that the concept of a mitigation fund
was a positive approach for obtaining "regional solutions" to storm water runoff, and that
as a long-term strategy, Permittees should work to establish regional mitigation
measures which are more cost-effective and more technically effective than mitigation
structures within individual developments. (Order No. 2000-11, p. 27.) However, the
State Board advised that preliminary questions must first be answered as to who will
manage the fund, what types of projects it would be used for, what entities can legally
operate the funds, and how Permittees will determine the amount of the assessments.
The State Board thus recommended that the Regional Board adopt such a program
when it re -issues a permit "after consultation with the appropriate local agencies."
Unfortunately, at least these commenting Permittees have not been consulted over the
creation of a mitigation fund, and the Permittees herein recommend that such a fund be
developed and be included within the subject Permit, "after consultation with the
appropriate local agencies .4
As referenced above, the CWA Regulations concerning Phase II Permits shows
that any regulation of post -construction runoff from new development and
4 For example, the condition that the regional solution "protect stream habitats" should be modified to
make it clear that the regional solution not cause any adverse consequences to stream habitats, as
opposed to the need for the program to include specific measures, above and beyond those that would
otherwise be required of individual SUSMPs, "to protect stream habitats:'
5 In addition, the "Mitigation Funding" section proposes a management framework for approval by the
Executive Officer to support "regional solutions:' (See Tentative Permit, Part 4, Section D(11).) Yet, it is
unclear from Section D(11) whether all of the conditions set forth in subsections D(11 1)(a) through (d) must
be met before such a Mitigation Fund may be developed. The Permit should be revised to clarify that a
Mitigation Fund may be utilized for anyone of the reasons set forth in said section.
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redevelopment must be "allowable under State, Tribal or local law." (See 64
Fed.Reg. 68721, 68760). As discussed above, the SUSMP provisions in issue conflict
not only with the express terms of federal law, in particular, the application of the MEP
standard and the language of the CWA regulations limiting such requirements to
discharges "from the municipal storm source system, but also with numerous provisions
under State law, particularly, including but not limited to the infringements on local use
authority, as well as the prohibition on imposing a "particular manner' of compliance on
a permittee under California Water Code Section 13360. (See discussion infra.)
G. THE PERMIT CONTINUES TO IMPOSE NUMEROUS UNFUNDED
MANDATES IN VIOLATION OF THE CALIFORNIA CONSTITUTION.
In spite of prior comments, to date there has been no attempt to address the
unfunded mandates that are being imposed on the Permittees by the terms of the
Permit, in violation of Article XIII B, Section 6 of the California Constitution. Please see
the discussion in our Comment Letter of August 6, 2001.
Moreover, contrary to contentions made by the Regional Board on this issue that
such unfunded mandates are appropriate where they are being imposed pursuant to a
federal program, it is only where the federal program mandates a particular
requirement upon the state agency that the exception to Article XIII B, Section 6 for
federal mandates, applies. Thus, where the federal program provides discretion to the
State agency to imlVose a local program, any mandate imposed upon the local
municipality through the exercise of that discretion is considered an unfunded mandate
and, as such, is prohibited by the California Constitution. (See Hayes v. Commission on
State Mandates (1992) 11 Cal. App.4th 1564, 1570.) In fact, it is only when the State
has no "true choice" in implementing a federal mandate, that the prohibition under the
California Constitution can be avoided. (See Hayes v. The Commission on State
Mandates, supra, 11 Cal.AppAth at 1593.)
As was recognized by the Regional Board itself in relying upon The Defenders of
Wildlife v. Browner (9th Cir. 1999) 193 F.3d 1035, here, the State has discretion (as
limited by State and federal law) to impose certain mandates, and as such, it has
effectively admitted that it has a "true choice" in imposing the mandates delineated
under the Tentative Permit. Accordingly, as the Regional Board has admitted
"discretion," and thus a "true choice" to impose the programs in question, the
constitutional prohibition under Article XIII B, Section 6 applies, and the Tentative Permit
is invalid as it violates the California Constitution.
As discussed in the previous comments, the Tentative Permit attempts to shift
the responsibility of the State and Regional Boards to Permittees, and to force
Permittees to regulate and control construction and industrial sites that are otherwise
subject to regulation by the State Board. This blatant attempt to shift this mandate
down to municipalities is evidenced by the statement of the U.S. EPA in
correspondence from Ms. Alexis Strauss of EPA dated December 19, 2000 and
April 30, 2001. Therein, U.S. EPA is plainly suggesting that the State shift a State
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mandate onto municipalities, but without providing sufficient funding to carry out such
state mandate. (See August 6, 2001, Comment Letter.)
The Regional Board's attempt to "shift financial responsibility to local agencies
that are ill-equipped to handle the task," and to put primary responsibility on the Cities to
enforce a General Statewide Industrial Permit and Construction Permit issued by the
State Board, is a direct violation of Article XIII B, Section 6 of the California Constitution,
thereby making the draft Permit invalid, without adequate funding to the Permittees.
(County of Fresno v. State, supra, 53 Cal. 3d at 42, 47.) Additional violations of this
Constitutional prohibition exists with the shifting of other unfunded mandates to the
municipalities, e.g. the SUSMP program, the Inspection Program for industrial and
commercial facilities, as well as for storm drains, the trash receptacle requirements, the
special event catch basin program, the illicit connection/illicit discharge program, etc.
H. THE PERMIT FAILS TO PROPERLY CONSIDER "ECONOMIC"
CONSIDERATIONS AND HAS NOT BEEN DEVELOPED BASED ON A
"COST/BENEFIT" ANALYSIS.
As set forth in prior comments, including the August 6, 2001 comments- to the
Second Draft of the permit, the Tentative Permit fails to properly consider economic
considerations and has not been developed based on a "cost -benefit analysis" required
by State and federal law. The Permittees herein incorporate their prior comments
submitted in the August 6, 2001 submittal as support for this comment and their
contentions that the Tentative Permit is defective as economic considerations have not
been addressed, and a cost -benefit analysis has not been performed.'
The issue is highlighted by a recent study performed by Caltrans indicating that
the cost of the TMDL program for Los Angeles County alone, which is to be
implemented in part, through the NPDES permitting process, could result in
expenditures to Los Angeles taxpayers in excess of $50 billion. Permittees herein
request that a copy of this report, which has been forwarded to the Regional Board
under separate cover, be included in the Administrative Record. Reports of this nature
indicate the importance of performing a cost/benefit analysis before adoption of a
comprehensive permitting program such as is proposed with the -Tentative Permit, as
well as the importance of considering the "economics" before mandating the numerous
programs set forth under the subject Permit.
Various provisions in State and federal law require the conducting of a cost -
benefit analysis (which the Regional Board has failed to perform), as well as the
consideration of "economic considerations" including the similar requirements in federal
law. (See 33 U.S.C. §§ 1288, 1313, 1315(b), and 64 Fed. Reg. 68722, 68732; Water
Code §§ 13000, 13165, 13241, 13225 and 13267.) The need to consider economic
considerations and to conduct a cost/benefit analysis are requirements that must be
complied time before the State embarks upon such costly programs all with uncertain
and unknown benefits.
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THE REGIONAL BOARD HAS FAILED TO COMPLY WITH THE
ADMINISTRATIVE PROCEDURES ACT IN DEVELOPING THE SUBJECT
PERMIT.
As set forth in prior comments and incorporated herein in their entirety, the
Regional Board continues to refuse to comply with the requirements of Administrative
Procedures Act pursuant to Government Code section 11340 et seq. ("APA").
Ironically, in connection with the Regional Board's recent adoption of a trash TMDL for
the Los Angeles River, it was recognized that action that a single TMDL for the Los
Angeles River alone, constituted a "standard of general application" thereby triggering
the requirements of the APA.
As the Tentative Permit is much broader and clearly is an order, a regulation and
standard of general application, the requirements of the APA must be complied with.
Contentions by the Regional Board that the APA does not apply to the issuance
of permits or waste discharge requirements are unpersuasive, as the Tentative Permit
(on its face) is more than simply a set of waste discharge requirement, but rather is a
permit that covers storm water runoff from municipal separate storm sewer system
throughout the County and is an Order of general application. Clear and substantial
evidence of the "regulatory" nature of the Tentative Permit is the attempt by the
Regional Board to require municipalities to amend their CEQA guidelines and to amend
their General Plan afnendment guidelines. In this regard, the Regional Board has
sought to adopt regulations with or without authority, but in doing, so have failed to
comply with the requirements of the APA.
J. THE REGIONAL BOARD HAS NO AUTHORITY TO ISSUE THE NPDES
PERMIT IN QUESTION.
With the recent rash of administrative petitions to the State Board, it is becoming
increasingly clear that the requirement of the CWA that ortly State agencies with "state-
wide jurisdiction over a class of activities or discharges," may issue NPDES permits,
must be followed. (40 CFR § 123.1(g)(1).) Again, the comments set forth in the
Permittees' prior comments dated August 6, 2001 are incorporated herein in their
entirety.
The absence of a "state agency" with "state-wide jurisdiction" to establish a set of
regulations on discharges from MS4s, is a fatal legal and practical deficiency with the
California Municipal NPDES Program. The result of this lack of state-wide direction has
been a series of haphazard decisions by the State Board, in response to individual
petitions and at that, only those particular issues within the petitions the State Board
deems of sufficient significance to review. This patchwork of decisions is precisely the
reason the federal regulations have required that NPDES authority be limited to state
agencies with "state-wide jurisdictional over a class of activities or discharges," i.e., to
provide for uniformity through the State and to avoid inconsistencies from region to
region. Accordingly, until the State Board exercises its jurisdiction and issues a set of
regulations, in accordance with the APA, that provides specific direction to the regional
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boards on the issuance of MS4 NPDES permits, any individual regional board is without
authority to issue an NPDES permit. (See 40 CFR § 123.1(g).)
Such a legal prohibition on "regional' agencies issuing NPDES permits is
reinforced by the State -Wide General Construction Activities Permit and the State -Wide
General Industrial Activities Permit, both of which although enforced by the Regional
Boards, have been adopted and promulgated by the State Water Resources Control
Board on a State-wide basis. Consistency has thus been provided by the State Board
for Industrial and Construction permits, but remains a void to be filled by the State
Board for MS4 NPDES permits.
Accordingly, the Tentative Permit remains deficient and subject to phallenge
unless and until appropriate State regulations have been adopted, and a uniform
program for the entire State of California, has been established for regulating
discharges from municipal separate storm sewer systems.
K. THE REGIONAL BOARD HAS FAILED TO CONSIDER THE TYPES AND
SOURCES OF POLLUTANTS IN DEVELOPING THE DRAFT PERMIT IN
QUESTION, AS REQUIRED BY STATE AND FEDERAL LAW.
The Regional Board continues to fail to rely upon quantitative data that has been
developed on the types and sources of pollutants within the effective receiving waters,
and to establish particular management programs based on such quantitative data.
(See 40 CFR § 122.26(d)(2)(iv).) The sections of the August 6, 2001 comment letter on
the requirements of the Regional Board to consider the types and sources of pollutants
in developing the subject NPDES permit, are incorporated herein.
L. THE PERMIT VIOLATES THE PROHIBITION SET FORTH UNDER
CALIFORNIA WATER CODE SECTION 13360.
California Water Code Section 13360(a) provides in pertinent part that:
"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."
As discussed in the August 6, 2001, Comment Letter, the Tentative Permit
violates Water Code Section 13360(a) in each instance where the Regional Board
seeks to impose a "particular manner" in which compliance may be had. In particular,
specific requirements imposed on municipalities to amend CEQA, to add additional
elements to their General Plans, to adopt and implement a particular Business
Assistance Program, to impose particular language in private sale or lease agreements,
to comply with a specific .75 numeric design criteria, to comply with a specific inspection
program for industrial and/or commercial facilities and to inspect all storm drain
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connections for illicit connections, or to clean catch basins after each special event or to
install trash receptacles at each bus stop, all constitute a "particular manner" in which
compliance may be had. The imposition of such "particular manners" of compliance
violates the express prohibition under California Water Code Section 13360(a).
M. THE PERMIT FAILS TO INCLUDE A FINDING OF CONSISTENCY WITH THE
AREA -WIDE WASTE TREATMENT MANAGEMENT PLAN.
As the Tentative Permit continues to ignore the requirements of the CWA,
particularly 33 USC section 1288, by failing to make a finding of consistency with the
area -wide waste management treatment plan, it remains defective.
N. NUMEROUS FINDINGS IN THE PERMIT ARE NOT SUPPORTED •I§Y THE
EVIDENCE, AND/OR DO NOT SUPPORT THE TERMS OF THE PERMIT.
Finding No. B.6 attempts to regulate the volume and velocity of storm water
discharged from the MS4, as opposed to controlling "pollutants from" the MS4, or the
discharge of waste to receiving waters. Finding No. B.6 provides in relevant part, as
follows: "Second, urban development creates new pollution sources as the increased
density of human population brings with it proportionally higher levels of vehicle
emissions, vehicle maintenance waste, municipal sewage waste, pesticides, household
hazardous wastes, pet waste, trash, and other anthropogenic pollutants. Development
and urbanization especially threaten environmentally sensitive areas. Such areas have
a much lower capacity to withstand pollutant shocks than might be acceptable in the
circumstance."
The Regional Board is thus plainly attempting to legislate on development and
urbanization issues, based on its perception of the potential environmental impacts
created by urban runoff and the need to impost mitigation measures on all existing and
future "urban development." Yet, the creation of "new pollution sources as the density
of human population brings with it proportionally higher,levels of vehicle emissions,
vehicle maintenance waste, municipal sewage waste, pesticides, household hazardous
waste, pet waste, trash, and other anthropogenic pollutants," are all environmental
factors to be considered in the evaluation of a "project" under the express requirements
of the California Environmental Quality Act. Over thirty years ago, the State Legislature
provided a process to follow in considering these potential environmental impacts, and
the Regional Board has no authority to override this process, and to issue an NPDES
Permit to, per se, regulate "urban development."
Finding No. D.2 acknowledges that Permittees "may lack legal jurisdiction" over
federal and state, regional or other local entities, but yet, the reference to the lack of
responsibility on the part of Permittees in the finding, has been deleted. More
importantly, the Tentative Permit continues to include within the definition of an
"Industrial/Commercial Facility" federal, State and municipal facilities, and thus, as now
modified, the Tentative Permit requires that Permittees regulate federal, State, regional
and other local facilities, even though it has no jurisdiction to do so. As such, the
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Tentative Permit is deficient and again seeks to impose obligations on the Permittees
where neither the Permittees nor the Regional Board, has the authority to do so.
Finding No. D.4 provides that the Permit is intended to develop, among other
things, a "cost-effective storm water control program" and "cost-effective"
measures to reduce the discharge of pollutants "in" storm water to the maximum extent
practicable to the waters of the United States. Yet, the terms of the draft Permit itself
are not based on these findings, as the Permit do not provide the flexibility for "cost-
effective" control measures and "cost-effective" programs. In addition, with the
Permit, the Regional Board clearly seeks to regulate discharges "intd' the MS4, as
opposed to controlling the discharge of pollutants "from" the MS4. This misapplication
of the MEP standard violates the provisions of the CWA and is an attempt to regulate
beyond the authority provided to the State Board under either the Clear Water Act or the
Porter -Cologne Act.
Further, there are no findings in the draft Permit to show that its terms are "cost
effective" or that "economic considerations" were considered. To the extent such
evidence exists to support Finding No. D.4, i.e. to support the determination of the
Regional Board that its programs and measures are "cost-effective," this information
should be disclosed to the public and the public should be given an opportunity to
review the same. To date, no such evidence has been presented.
Finding No. D.5 provides in pertinent part that: "Permittees may control the
contribution of pollutants to the MS4 from non -permittee dischargers such as Caltrans,
the U.S. Department of Defense, and other State and federal 'facilities, through
interagency agreements." Obviously, without cooperation and participation with
Caltrans, the U.S. Department of Defense and other State and federal facilities, through
interagency agreements or otherwise, Permittees may not be in a position to control
the contribution of pollutants to their MS4s, and there is nothing under the CWA or the
Porter -Cologne Act that would require that Permittees control the contribution of
pollutants from such State and federal facilities. Moreover, again, the Tentative Permit
seeks to regulate the discharge of pollutants "to the MS4" as opposed to "from" the
MS4, in violation of the MEP Standard. Accordingly, Finding D.5 is factually inaccurate
and legally deficient.
Finding No. E.1 refers to US EPA Phase II Storm water Regulations and
references various provisions and requirements under the Phase II final rule published
on December 8, 1999. As the existing cities are all subject to the Phase I Storm water
Regulations, and are not subject to the Phase II requirements, reliance upon specific
requirements of the Phase II Regulations to Phase I cities, as support for the provisions
within the Permit, is inappropriate.
Finding No. E.5 states that certain EPA regulations "require that MS4 Permittees
implement a program to monitor and control pollutants in discharges to the municipal
system from industrial and commercial facilities that contribute a substantial pollutant
load to the MS4." As discussed above, this is an inaccurate characterization of the
regulations, as the referenced regulations only apply to the control of pollutants and
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discharges of storm water runoff associated with Industrial activities, as specifically
defined in the regulations themselves (see 40 CFR §122.26(b)(14)), and not
"commercial' facilities. The requirement that the Permittees implement a program to
monitor and control pollutants and discharges from all "industrial/commercial facilities" is
not supported by the regulations and is directly contradicted by the CWA regulation
cited in Finding No. E.S.
Finding No. E.6 relies upon a memorandum issued by the State Water
Resource Control Board Office of Chief Counsel interpreting the meaning of the MEP
standard to put the burden on the municipalities to demonstrate compliance with MEP,
by showing that an MEP is not technically feasible in the locality, or that the BMP's
costs would exceed any benefit to be derived therefrom. Any memo that may be issued
by the Office of Chief Counsel interpreting MEP cannot override the actual language of
the Clean Water Act itself or the requirements under the Porter -Cologne Act,
requirements that have been adopted by our federal and State .Legislatures.
Accordingly, the prevailing authority on what constitutes "MEP" is the Clean Water Act
itself, and the regulations adopted thereunder, as well as precedential authority
interpreting Congress' intent in adopting the MEP standard.
Finding No. E.7 provides that the State of California has in -lieu authority for an
NPDES Program, and that: "The Porter -Cologne Water Quality Control Act authorizes
the State Board, through the Regional Boards, to regulate and control the discharge of
pollutants into the wafers of the State and tributaries thereto." Yet, neither this finding
nor any other finding provides authority for the Regional Board, as opposed to the State
Board, to issue NPDES Permits, as the Regional Board is not an agency with
"statewide jurisdiction over a class of activities or discharges." (40 C.F.R.
§ 123.1(g)(1)•)
Finding No. E.14 states that the Regional Board adopted TMDLs for trash for
the Los Angeles River and Ballona Creek on September 19, 2001, and that after
approval by the State Board, the Office of Administrative Law and U.S. EPA, these
TMDLs will become effective and enforceable. The finding improperly assumes that the
State Board, Office of Administrative Law and U.S. EPA will exercise no discretion in
reviewing the trash TMDLs adopted by the Regional Board, and that said trash TMDLs
will be the trash TMDLs for the subject water bodies. The finding should be modified to
account for the likelihood that the trash TMDLs will be modified, and that only those
trash TMDLs finally approved by U.S. EPA and that are not successfully challenged, are
to be incorporated into the subject Permit.
In a recent regulation concerning an EPA Proposed Rule to delay, by 18 months,
the effective date of a prior rule on TMDLs (see 66 Fed.Reg. 41817), EPA relied heavily
on a recent report prepared by the National Research Council ("NRC") entitled
"Assessing the TMDL Approach to Water Quality Management." In fact, as indicated in
the Proposed Rule, because of the conclusions of the NRC Report, EPA is proposing
that the TMDL rule adopted on July 13, 2000 be delayed specifically to allow EPA to
"solicit and carefully consider suggestions on how to structure the TMDL program to be
more effective and flexible and to ensure that it leads to workable solutions that will
227!065121-0068
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meet the Clean Water Act goals of restoring impaired waters." (66 Fed.Reg. 41817,
41818.)
Further, in the Proposed Rule EPA recognizes that local government officials
have "objected to the TMDL allocation approaches that could result in municipal point
sources bearing and an inequitable share of the pollutant load reductions needed to
attain water quality standards." EPA also acknowledges that contentions have been
made that "there is not enough data to support TMDLs, that some pollutants are not
suitable for TMDL calculation, that the section 303(d) lists are not based on
scientifically -defensible data, or that the delisting criteria are too inflexible." EPA further
concludes that because of the NRC recommendations and findings, that "many waters
now on State 303(d) lists where placed there without the benefit of adequate water
quality standards, data or water bodies assessment." (66 Fed.Reg. 41817, 41819.) A
copy of the NRC report will be provided to the Regional Board under separate cover,
and the Coalition respectfully requests that this report be included as a part of the
Administrative Record in connection with the Tentative Permit, and that EPA's
regulations in this regard be fully considered.
Finding No. E.16 provides that the Regional Board, on April 13, 1998, "approved
recommended BMPs for industrial/commercial facilities (Resolution No. 98-08)." A
review of Resolution No. 98-08, however, shows that it only applied to a few select
"commercial" facilities, and further, only imposed best management practices on certain
specified industrial facilities and/or activities. The definition of "Industrial/Commercial
Facility" under the Tentative Permit is far broader than the facilities described in
Resolution No. 98-08, and the Tentative Permit plainly exceeds the terms of Resolution
No. 98-08.
Finding No. E.18 indicates that a December 26, 2000 memorandum from the
State Board's Chief Counsel constitutes "a state-wide policy" memorandum, and is cited
to support the proposition that the SUSMP requirements are to include "ministerial
projects, projects in an environmentally sensitive areas, and retail gasoline outlets."
The December 26, 2000 directive from the State Board's Chief Counsel, if it is to be
followed, can only be followed after the requirements of the Administrative Procedures
Act ("APA") have been complied with, which, to date, has not occurred.
In Finding No. E.19 the Regional Board has determined that the creation of
structural treatment control BMPs for storm water mitigation and waters of the United
States is not permissible, as it contends that 40 CFR part 131.10(a) prohibits states
from designating waste transport or waste assimilation, as a use for any waters of the
United States. The Regional Board misinterprets the definition of a "waters of the
United States," and the regulations and the purpose of creating a structural treatment
control BMP. (See Solid Waste Agency of Northern Cook County v. Army Corps. of
Engineers, 531 U.S. 159, 174 (2001) where the Court discussed the limits placed on the
definition of "navigable waters of the United States," and the fact that the regulation of
land use is a function traditionally performed by local governments.) Moreover, any
creation of a structural or treatment control BMP within a water of the United States is
not to be designed to allow for the use of the water body to transport waste or to
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assimilate waste, but rather, to do just the opposite, to remove the existence of waste
from the water body. In effect, the Regional Board has turned the regulation inside out
and has interpreted the prohibition in such a manner that it will prevent the removal of
waste, which is directly contradictory to the regulation itself. With the finding, the
Regional Board thus inappropriately concludes that storm water treatment and/or
mitigation, in accordance with the SUSMPs and other requirements of the Tentative
Permit must occur prior to the discharges of storm water into a water of the United
States.
Finding No. E.24 references State Board Order No. WQ 99-05 as being a
precedential decision identifying acceptable receiving water limitation language in
municipal storm water permits issued by the State Regional Boards. First, the reference
to various orders and resolutions of the State Board by the Regional Boards reinforces
the importance of complying with the federal regulations and only having State agencies
with state-wide jurisdiction over a class of activities or discharges, issue NPDES
permits. Second, in reviewing Order No. WO 99-05 and comparing that language with
the language set forth in Part 2, entitled "Receiving Water Limitations" of the Tentative
Permit, it is evident that the language set forth in the Tentative Permit exceeds the
language provided in Order No. 99-05. Accordingly, the Tentative Permit should be
revised to at least comply with the express language set forth in Order No. 99-05.
Furthermore, in accordance with the Draft Order of the State Board in connection
with the San Diego Permit, additional language should be added to the findings and to
Part 2 of the Permit to incorporate the "iterative process" referred to by the State Board.
Specifically, clarifying language should be added to make it clear that so long as a
municipal permittee is complying with the "iterative process," that if exceedances occur
or water quality standards are not met or conditions of pollution or nuisance exist, that
said municipalities will not be found to be in violation of the Clean Water Act or
otherwise subject to third party lawsuits. Clearly the State Board's Draft Order shows
that where the "iterative process" is being complied with, any exceedances that result
are to be cured by further complying with the iterative process. Clarifying language
should thus be added to the Permit so that compliance with the "iterative process" will
constitute compliance with the requirements of the Permit and compliance with the
requirements of the Clean Water Act.
Finding No. E.25 references California Water Code Section 13263(a) and the
provisions of said section which require the Regional Board to "take into consideration
the beneficial uses to be protected and the water quality objectives reasonably required
for that purpose." Yet, Finding No. E25 fails to cite the complete language within
Water Code Section 13263(a), and specifically fails to consider the factors delineated in
Water Code Section 13241, including the need to consider "economic
considerations," and "the need for developing housing within the region," along
with "water quality conditions that could reasonably be achieved through the
coordinated control of all factors which effect water quality in the area."
Under Section 13263(a), the waste discharge requirements are to take into
consideration "the water quality objectives reasonably required for that purpose...,"
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and are to be considered in "relation to the conditions existing in the disposal area or
receiving waters upon, or into which the discharge is made or proposed." (Water Code
§13263(a).) Finding E.25 thus, omits critical language from the standard for the
issuance of waste discharge requirements, and the draft Permit fails to follow the
standards set forth in Water Code Section 13263. The findings throughout the
Tentative Permit do not support the Regional Board's consideration of these factors and
other important factors, and the terms of the Tentative Permit do not comply with the
requirements of Water Code Section 13263. The language added to the Tentative
Permit at the end of this finding, is a mere conclusory comment that the Regional
Board has considered the requirements of Sections 13263 and 13241 and applicable
plans policies, rules and regulations, in developing WDRs, without any evidentiary
support or findings to support the conclusion, and more importantly, without any findings
to support its compliance with these specific requirements.
In Finding No. F.1, the Tentative Permit provides that "[a] ministerial project may
be made discretionary by adopting local ordinance provisions or imposing conditions to
create decision-making discretion in approving the project." Finding No. F.1 implies
that municipalities have the authority to make all ministerial projects, discretionary, and
that it would make regulatory or legal sense to do so. In short, the finding suggests that
every building permit, grading permit, plumbing permit, electrical permit and occupancy
permit, should be issued directly by the City Council, the Board of Supervisors and/or
the Flood Control District Boards. For the sole purpose of addressing some undefined
and unidentified problem with the existing SUSMP program, the Regional Board is
seeking to change the entire planning, building and development process throughout
the County of Los Angeles and attempts to do so without complying with the
requirements of the Administrative Procedures Act. Finding No. F.1 is not supported
by the evidence and would have disastrous consequences on planning and
development throughout the County. Moreover, the inclusion of "non -discretionary"
projects within the SUSMP provisions will lead to numerous unintended consequences,
including having every ministerial project required to be brought before the City Council
or Board of Supervisors for review, thus causing the wheels of local government to
come to a grinding halt, and further, overriding the requirements set forth in CEQA.
Finally, there are no findings and no evidence to support any finding for the need
to apply the SUSMP requirements to "non -discretionary' projects. Before such an
expansive and overly broad application of this SUSMP is mandated on the Permittees,
findings supporting the need for such an expansion, and evidence supporting such
findings, must be identified. Without such, the inclusion of all "non -discretionary'
projects within the development categories of the SUSMP is arbitrary and capricious
and is not supported by the evidence in the record and is not otherwise shown to be
'.reasonably required" to protect the water quality of the region. (Water Code
§13263(a).)
In Finding No. F.3, the Regional Board contends that the Permit is "to protect
the beneficial uses of receiving waters in Los Angeles County," and that to meet this
objective, the Order requires implementation of BMPs intended to reduce pollutants "in"
storm water and urban runoff such that ultimately their discharge will neither cause
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violations of water quality objectives nor create conditions of nuisance in receiving
waters. This standard, however, is contrary to the standards set forth under the Porter -
Cologne Act, as discussed above, and the standards set forth in the Clean Water Act,
which require the control of discharges of pollutants "from" MS4s "to the maximum
extent practicable," not "td' MS4s. (42 USC § 1342(p)(3)(B).) Finding No. F.3 is,
moreover, not supported by State or federal law, since, as discussed above in
connection with the receiving water limitation language, it would result in the application
of an open-ended standard and one that is unobtainable within the five (5) year term of
the permit. Such provisions are contrary to the standards of the CWA and State law,
and violate the Permittee's right to substantive due process of law, thereby denying the
municipalities a "meaningful" Permit that allows for the discharge of waste and the
discharge of pollutants "from" their MS4s.
In Finding No. F.4 the Regional Board contends that the SQMP required by the
Tentative Permit "was developed with the cooperation of representatives from the
regulated community ..." The finding is not supported by the evidence and is
misleading, as the majority of the regulated community in this instance, the
municipalities, have opposed the program required by the Tentative Permit and did not
and do not agree with the effectiveness of the program, the direction of the program, or
the authority of the Regional Board to impose the Program. Further, the finding
provides that the various components of the SQMP, taken as a whole, are expected to
reduce pollutants in storm water and urban runoff to the maximum extent practicable."
Again, the appropriate MEP standard under the Clean Water Act is to reduce the
discharge of pollutants "from" the MS4.
In Finding No. F.9 the Regional Board indicates that the requirements of the
Clean Water Act are to reduce the discharges of pollutants "in" municipal storm water to
the maximum extent practicable, as opposed to the actual requirement which is to
reduce the discharge of pollutants "from" the MS4. The Tentative Permit thus
improperly broadens the MEP Standard in order to impose additional, but unlawful,
requirements on the Permittees thereunder, particularly in connection with the
regulation of new development and redevelopment activities as referenced in Finding
No. F.9. In this finding, the Regional Board further asserts that Permittees are to retain
authority to make the final land use decisions and to retain "full statutory authority" for
deciding what land uses are appropriate at specific locations, but fails to acknowledge
or address the infringement on local land use authority created by the Tentative Permit,
and the illegality created by such an infringement on local land use authority. The
Regional Board is not permitted to "diminish or abridge the authority of the local
government," and the provisions of the Tentative Permit that diminish and abridge such
authority, whether or not the Permittees can make the "final" land use decision, are
inappropriate and contrary to the State and federal law.
With Finding No. F.10, the Regional Board, after nearly two years of the
Permittees raising the issue, finally recognize that treatment control BMPs may in fact
create vector problems and that the issue is not limited to some "gigantic mosquito" as
asserted by representatives of the Regional Board at hearings before the State Board
on the validity of the 2000 SUSMP. Yet, the finding, although attempting to impose
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upon Permittees the responsibility of working with local vector control agencies to
minimize the risk to public health from vector -born diseases, fails to consider the limited
avenues available to comply with the .75 numerical criteria, and still avoid various
unintended consequences such as risks to public health from vector -born diseases.
These unintended consequences, and other unintended consequences such as
potential contamination to our ground water resources, should all be considered at the
outset in deriving the numerical standard in the first instance, and should be considered
as one of many "costs" that arise from such a mandated standard.
Finding No. G.6 provides that: "The action to adopt an NPDES Permit is exempt
from the provisions of Chapter 3 of CEQA (Cal. Pub. Resources Code Section 21100 et
seq.), in accordance with CWC § 13389." Unfortunately, the finding fails to cite the
entirety of Water Code Section 13389, and specifically fails to address the exception to
13389 for "requirements for new sources as defined in the Federal Water Pollution
Control Act or acts amendatory thereof or supplementary thereto." (See Water Code
§ 13389.) As discussed, there will be "new sources" as defined in the CWA, which the
Regional Board is seeking to regulate with the subject NPDES Permit, and as such, the
impact of these requirements on "new sources" must be reviewed under the
requirements of CEQA.
In short, the findings throughout the Tentative Permit are not supported by the
evidence in the record, and such findings do not support the proposed terms of the
Tentative Permit. In addition, there are numerous provisions throughout the Tentative
Permit which are not supported by any findings.
O. VARIOUS DEFINITIONS WITHIN THE PERMIT ARE IMPROPER AND
CONTRARY TO LAW.
A number of definitions in the Tentative Permit are improper, and contain
language that is contrary to law and/or is ambiguous. The Permittees herein
respectfully request that the definitions as described below, be modified to correct such
deficiencies.
The definition of "Director" means the "Director of a Municipality' and the
designees of such person. Permittees are unaware of what a "Director of a
Municipality' is intended to mean, as no such person or office generally exists for the
cities in Los Angeles County.
The definition of "Environmentally Sensitive Areas" is overly broad and
ambiguous and includes areas that are labeled sensitive, irrespective of whether or not
the receiving waters in issue contain the subject plant or animal life causing the area to
be sensitive in the first instance. As such, the areas defined as "Environmentally
Sensitive Areas" are overly broad and are outside the jurisdiction of the Regional Board.
The term "Inspegtion" is defined in a fashion to require the municipalities to
conduct unauthorized searches and seizures and improper interrogation, in violation of
both the Fourth and Fifth Amendments to the U.S. Constitution. The definition also
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excludes the possibility of conducting an inspection from a public right-of-way, and to
observe what may be in the "plain view" of enforcing officials. As discussed above, the
"inspection" requirements in the Tentative Permit are requirements that are not
supported by substantial evidence, and just as important, are not legally authorized
under the CWA or the Porter -Cologne Act.
The definition of "Maximum Extent Practicable" ("MEP") is defined in a fashion
that is contrary to the requirements of the Clean Water Act. The definition of MEP is
based almost exclusively on a legal memorandum dated February 11, 1993 from the
State Board's office of Chief Counsel, a legal memorandum that cannot legally be
used to override the intent of Congress in adopting the Clean Water Act in the first
instance, or the Porter -Cologne Act as adopted by the California Legislature. The term
Maximum Extent Practicable" should be defined as it is issued by Congress in the
CWA.
The term "Parking Lot" is defined as being a lot size of 5,000 square feet or
more of "surface area" as opposed to "impervious surface area" as referred to in other
SUSMP categories.
The term "Planning Priority Projects" include, among other items, projects that
require the implementation of a site specific plan "to mitigate post -development storm
water for new development not requiring a SUSMP but which may potentially have
adverse impacts on 'post -development storm water quality," where certain project
characteristics exist. This portion of the definition, and other portions of the
Development Planning/SUSMP section of the Permit, clearly violate the requirements of
CEQA and the standards set forth therein, as the legislative and regulatory
requirements under CEQA to be adhered to in developing mitigation measures for
potentially significant adverse impacts on the environment, have not been complied
with. To the extent that the language within the definition of "Planning Priority Projects"
is inconsistent with CEQA, it should be deleted.
The definition of "Redevelopment" as described above is inconsistent with the
definition provided by the State Board in Order No. 2000-11 and with EPA's definition of
"redevelopment," and moreover, conflicts with other provisions of State and federal law.
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Page
THE REGIONAL BOARD HAS NO AUTHORITY TO ISSUE THE
NPDES PERMIT IN QUESTION......................................................................21
K. THE REGIONAL BOARD HAS FAILED TO CONSIDER THE TYPES
AND SOURCES OF POLLUTANTS IN DEVELOPING THE DRAFT
PERMIT IN QUESTION, AS REQUIRED BY STATE AND FEDERAL
LAW.................................................................................................................22
L. THE PERMIT VIOLATES THE PROHIBITION SET FORTH UNDER
CALIFORNIA WATER CODE SECTION 13360 ...............................................22
M. THE PERMIT FAILS TO INCLUDE A FINDING OF CONSISTENCY
WITH THE AREA -WIDE WASTE TREATMENT MANAGEMENT PLAN......... 23
N. NUMEROUS FINDINGS IN THE PERMIT ARE NOT SUPPORTED BY
THE EVIDENCE, AND/OR DO NOT SUPPORT THE TERMS OF THE
PERMIT............................................................................................................ 23
O. VARIOUS DEFINITIONS WITHIN THE PERMIT ARE IMPROPER AND
CONTRARY TO LAW......................................................................................30
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