Public Hearing Orange County Municipal Separate Storm Sewer System (MS4) Permit, Urban Storm Water Runoff Management Program Order No. R (Formerly Order No ) (NPDES No. CAS ) January 18, 2002 Mark Smythe Chief, Coastal Storm Water Unit

Overview Recap the progress of the permit process Identify and respond to comments received regarding the two errata sheets Answer questions Opportunity for public comment on the changes proposed by the errata sheets

Timeline Sept. 1, 2000Submittal of ROWD May 11, 20011st Draft of Order No issued June 1, 20011st Public Workshop June 15, 20012nd Draft issued July 20, 20012nd Public Workshop Sept. 13, 20013rd Draft issued Sept. 26, 20013rd Public Workshop Nov. 5, 2001Tentative Order issued Dec. 5, 2001Response to Comments issued Dec. 7, 20011st Errata Sheet issued Dec. 18, 20012nd Errata Sheet issued Dec. 19, 2001Public Hearing Opened

Comment Letters County of Orange Cities –Brea (Richards, Watson & Gershon) –Buena Park (Public Works; Richards, Watson & Gershon) –Garden Grove –Huntington Beach –Lake Forest –Los Alamitos (Burke, Williams & Sorensen) –Seal Beach (Richards, Watson & Gershon) –Stanton (Burke, Williams & Sorensen) –Yorba Linda

Comment Letters Leisure World, CAI and CACM (Latham & Watkins) CoastKeeper (Lawyers for Clean Water) Defend the Bay (Natural Resources Defense Council) City of Westminster (past the January 8, 2002 deadline)

Finding 27 (Errata Item 27) The County of Orange, Cities of Brea, Buena Park, Garden Grove, Huntington Beach, Lake Forest and Seal Beach and Latham & Watkins point out that the applicable standard for this permit is Maximum Extent Practicable and question what other standards are included in the new language.

Finding 27 (cont.) In the case where a receiving water is on the Section 303(d) list of impaired waters, a TMDL will be developed for that receiving water that includes load allocations for non-point sources and waste load allocations for point sources (including urban storm water runoff). In that case, the applicable standard will be the waste load allocation and not maximum extent practicable. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Finding 37 (Errata Item 28)

Finding 37 (cont.) The County of Orange, Cities of Buena Park, Garden Grove, Huntington Beach, Lake Forest, Los Alamitos, Stanton and Latham & Watkins question the deletion of the phrase, “… to the extent that they are technically and economically feasible.”

Finding 37 (cont.) In the case of Maximum Extent Practicable, technical and economic feasibility are not the only considerations taken into account, of equal importance are the issues of public health risk, societal concerns and benefits and the gravity of the problem. This Finding already clearly states that the intent of this order is to reduce to the Maximum Extent Practicable, the discharge of pollutants in storm water from the MS4. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Section I.7 (Errata Item 31) The County of Orange, Cities of Buena Park, Garden Grove, Huntington Beach and Lake Forest object to the deletion of the word “approved” as applied to the Drainage Area Management Plan (DAMP) and the inclusion of the phrase “and take such other actions as may be necessary to meet the MEP standard.”

Section I.7 (cont.) In fact, only the 1993 version of the DAMP was ‘officially’ approved. The current DAMP is supplemented by the additional requirements set forth in this tentative order and during this permit cycle, the tentative order requires review and revisions to the DAMP which would again not allow a single ‘approved’ DAMP. This is a Maximum Extent Practicable or MEP-based permit. The DAMP alone does not constitute the limit on what Best Management Practices or BMPs are necessary, under the permit, to address pollutants in urban storm water runoff. In order to meet water quality standards, the permittees must take such actions necessary, up to the MEP standard. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Section II.1 (Errata Item 32) As with the previous item, this is an MEP-based permit and actions beyond those listed in the DAMP may be necessary to meet MEP. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2. The County of Orange, Cities of Buena Park, Garden Grove, Huntington Beach and Lake Forest object to the inclusion of the phrase “and take such other actions as may be necessary to meet the MEP standard.”

Section III.3 (Errata Item 33) CoastKeeper has commented that in their opinion, the addition of categories of exempted non-storm water discharges beyond those found in 40 CFR (d)(2)(i) are illegal, whether approved by the Executive Officer or Regional Board.

Section III.3 (cont.) Staff disagree that there is a strict prohibition on adding to the list of exempt, non-storm water discharges that is, non-storm water discharges that need not be prohibited if they are not significant sources of pollutants. It is not anticipated that additional exempt, non-storm water discharges will be added to the list. However, if it does take place, it will be a Regional Board action, with all the administrative procedures and public input and can ultimately be petitioned for appeal through the normal procedures established through the California Water Code. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Section III.8 and IV.2 (Errata Items 34 and 35) The Cities of Los Alamitos and Stanton object to the cause ‘or contribute’ language regardless of it’s location

Section III.8 and IV.2 (Cont.) The reason for moving this language from Section IV to Section III is because it was felt by staff that it represented a discharge prohibition rather than a receiving water limitation. As to the ‘cause or contribute’ language, this language is consistent with language in precedential WQ Order No Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Section IV.3 (Errata Item 36) The County of Orange, Cities of Buena Park, Garden Grove and Huntington Beach object to the inclusion of the phrase stating that compliance will be achieved through an iterative process of increasingly more effective BMPs as not being within the mandatory Receiving Water Limitation language established by State Board in WQ

Section IV.3 (cont.) State Board’s Water Quality Order No provides receiving water limitation language which must be included in future storm water permits. The language in question is a descriptive clarification of the well documented, existing process of meeting the MEP standard. It does not change, nor is it a substantive addition to the language contained in WQ Order No Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Section IV.3 (cont.) The County of Orange, Cities of Buena Park, Garden Grove, Huntington Beach, Lake Forest, Los Alamitos and Stanton comment that the deletion of the phrase “to the maximum extent practicable” may add ambiguity to the permittee’s requirements.

Section IV.3 (cont.) Again, where a receiving water is on the Section 303(d) list of impaired waters, a TMDL will be developed for that receiving water that includes load allocations for non-point sources and waste load allocations for point sources (including urban storm water runoff). In that case, the applicable standard will be the waste load allocation and not maximum extent practicable. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Section VI.1 (Errata Item 10) The County of Orange and the cities of Buena Park, Garden Grove, Los Alamitos and Stanton disagree with the deletion of the phrase “associated with industrial sources”, stating that it goes beyond the requirements of the Clean Water Act (40 CFR (d)(2)(i)(A) and would require the permittees to maintain and enforce legal authority to control the contribution of pollutants to the MS4 from all storm water.

Section VI.1 (cont.) 40 CFR (d)(2) (i) Adequate legal authority. A demonstration that the applicant can operate pursuant to legal authority established by statute, ordinance or series of contracts which authorizes or enables the applicant at a minimum to: (A) Control 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 discharged from sites of industrial activity; Burke, Williams & Sorensen, writing for the cities of Stanton & Los Alamitos recommends tying this requirement back to Finding 16, which limits the responsibility of the permittees for certain discharges and certain polluting activities.

Section VI.1 (cont.)

40 CFR (d)(2) address the minimum requirements for establishing legal authority. It is clear that the permittees must establish legal authority over storm water discharges to their MS4 from commercial and residential activities in order to meet the MEP standard. It is understood that there are discharges over which the permittees have little to no jurisdiction and activities over which the permittees have little to no control. This is clearly established in Finding 16 and does not have to be reiterated throughout the permit. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 1.

Section VI.6 (Errata Item 11) The County of Orange and the City of Garden Grove question the vagueness of the directive “review their water quality” and ask whether this would be done pursuant to the Monitoring and Reporting Program.

Section VI.6 (Cont.) In trying to grammatically improve this sub-section though the errata sheet, the word ‘ordinances’ was inadvertently dropped. Staff recommends the following language for Section VI.6:

Section XII.A.3 (Errata Item 14) The County of Orange and the Cities of Garden Grove, Lake Forest, Los Alamitos and Stanton object to the change from ‘should’ to ‘shall’, stating that it intrudes on their local land use authority.

Section XII.A.3 (Cont.) The requirement that the permittees review and revise, as necessary, their CEQA process to incorporate storm water issues is not new and was in the previous permit, Order No The language in this section does not intrude on local land use authority. It is requiring the permittees to review their procedures and if necessary, revise them to address these issues. It is not telling them ‘how’ to address storm water issues. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 1.

Section XII.A.4 (Errata Item 15) The County of Orange and the Cities of Garden Grove, Lake Forest, Los Alamitos and Stanton object to the change from ‘should’ to ‘shall’, stating that it intrudes on their local land use authority..

Section XII.A.4 (Cont.) The language in this section is not prescriptive. It is requiring the permittees to review their general planning documents and if necessary, revise them to incorporate watershed planning concepts into these documents and processes. It is not telling them ‘how’ to incorporate these concepts, nor is it saying that these must be over-riding concepts when development planning actions take place. Only that they be properly considered. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 1.

Section XII.A.6 & 7 (Errata Items 16&17) The County of Orange and the City of Garden Grove object to the change from ‘should’ to ‘shall’, stating that it intrudes on their local land use authority.

Section XII.A.6 & 7 (Cont.) Regular review and revision (if necessary) of grading/erosion control ordinances is necessary to reduce the amount of sediment leaving construction sites and ending up in receiving waters. This requirement in no way limits local land use authority. The requirement to identify responsible parties and funding sources for post-construction BMPs in new development and re- development will ensure that these structural measures are properly maintained and make sure everyone recognizes where the responsibilities lie for operation and manintenance. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 1.

Section XIII.3 (Errata Item 20)

Section XIII.3 (Cont.) The County of Orange and the Cities of Brea, Buena Park, Garden Grove and Seal Beach contend that the burden of creating 10 million impressions is heavy enough without being required to ensure that those impressions have a measurable effect. The City of Newport Beach actively sought language in the permit to measure the effectiveness of the public education program. Clearly, the effect of a public education campaign is going to be dependent on the quality of the impressions made on the public. Numbers alone will not result in a successful program. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 1.

Section XIV.6 (Errata Item 22) The City of Yorba Linda contends that the cleaning of every catch basin every two years is burdensome and would prefer to concentrate cleaning efforts on ‘problem’ catch basins.

Section XIV.6 (Cont.) Accumulated sediment, trash and debris that are left in a catch basin prior to the rainy season, will be transported to receiving waters with the first, heavy, winter rain. An annual cleaning program, designed to remove pollutants before they enter the MS4 system is the start towards a program meeting the MEP standard. Clearly, as identified by the City of Yorba Linda, there are areas where activities result in higher than normal pollutant loads entering the catch basin. These catch basins will then require a more ‘aggressive’ clean-out program. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Section XIX.1 (Errata Item 38) The Cities of Brea, Buena Park and Seal Beach comment that the phrase “any unresolved significant issues” is vague and should be replaced with language allowing the Executive Officer to schedule a public hearing.

Section XIX.1 (Cont.) The specific intent of this section was to provide a clearly defined public participation process regarding decisions made with respect to the MS4 permit. Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 2.

Footnote 6 (Footnote Errata Item 3) The County of Orange, City of Garden Grove and Latham & Watkins recommend that the definition be removed as no other section heading has been defined and Latham & Watkins notes that the section heading is not the first occurrence of the phrase.

Footnote 6 (Cont.) Prior to receipt of these comments, it was noted by staff that the footnote had been misplaced on the a latter occurrence of the phrase and that was corrected in the draft of the tentative permit before you. As to the appropriateness of the footnote, it was added for the benefit of clarification and was done in response to the October 19, 2001 comment letter from Richards, Watson & Gershon requesting definitions for ‘Receiving Water Limitation”, “hazardous materials”, “toxic materials’, and “New Development.” Staff’s recommendation is to use the language presented in Tentative Order No. R and Errata Sheet 1.

Proposed Changes Project categories requiring revised WQMPs Re-development projects of 5,000 or more square feet. Home subdivisions of 10 units or more. Commercial developments of 100,000 square feet or more. Automotive repair shops Restaurants of 5,000 square feet or more. All hillside developments on 10,000 square feet or more. Developments of 2,500 square feet or more adjacent to or discharging directly into environmentally sensitive areas. Parking lots of 5,000 square feet or more.

Proposed Changes (Cont.)......

c.Commercial and industrial developments of 100,000 square feet or more. This includes non-residential developments such as hospitals, educational institutions (to the extent the permittees have authority to regulate these developments), recreational facilities, mini-malls, hotels, office buildings, warehouses, and light & heavy industrial facilities.

Conclusion Staff recommends that you adopt Tentative Order No. R with the following changes:

Conclusion (Cont.) XII.B.1 c.Commercial and industrial developments of 100,000 square feet or more. This includes non-residential developments such as hospitals, educational institutions (to the extent the permittees have authority to regulate these developments), recreational facilities, mini-malls, hotels, office buildings, warehouses, and light & heavy industrial facilities.