1. Comments of California Coastkeeper Alliance, Santa Monica Baykeeper, NRDC and Heal the Bay on draft Construction Permit

2. Draft 13385 Enforcement Report Jan 2008 Water Boards Enforcement Report January 1, 2007 to December 31, 2007 The Water Boards currently implement the storm water program. The program is supported by fees collected from permittees. The current program expends about $12 million per year and supports about 100 staff at the Water Boards. The current level of program staffing resources is not sufficient to fully implement the storm water program. Full implementation would generally include at least one inspection at each facility, full review of stormwater pollution prevention plans (SWPPPs) and annual reports, appropriate follow-up and enforcement of permit violators, and comprehensive identification and enforcement of non-filers. In a previous report that was submitted to the Legislature, the State Water Board estimated that the Phase I program would need 199 staff to implement and an additional 112 staff to implement the Phase II program. This estimate was based upon a needs analysis conducted by the State Water Board for its core regulatory programs as required by Supplemental Language to the 1999/2000 State Budget. Since the completion of the needs analysis, additional resources are needed in response to recent Appellate Court decisions and an increased permit enrollment of 20%. A summary of active NPDES stormwater facilities by category and Regional Water Board is shown in Table 5.

3. Draft Water Code 13385 Enforcement Report 74% of all enforcement Either Reporting or Failure to Pay Fees “…stormwater permits currently contain no numeric effluent limitations and instead rely on a suite of general narrative effluent limitations…(c)ompliance determinations for these effluent limitations at stormwater facilities therefore depends heavily upon site visits that include specific observations, analysis, and documentation…”

4. Draft Water Code 13385 Enforcement Report 19,539 Construction Permittees 29,780 Total SW Permittees 2,274 Individual Permittees Vast Majority of Permittees are Under Construction Permit

5. Draft Water Code 13385 Enforcement Report Recommendations: Standardize NPDES Permitting to increase certainty and expectations for staff and dischargers, and to restore efficiency and performance to these efforts.

6. 2007 Update on Strengthening Enforcement in California http://www.calepa.ca.gov/Enforcement/documents/2007/InUpdate.p df http://www.calepa.ca.gov/Enforcement/documents/2007/InUpdate.p df Enforceable Permits Steering Committee Purpose: To identify permit barriers to enforcement; to improve clarity of what constitutes “compliance.”

7. Despite Staffing Shortfalls,and Mandates for Simple Enforceable Permits, staff recommending more complexity Draft Permit, Fact Sheet, attachments, total at least 134 pages. Extremely Complicated Process for Determining Appropriate BMPs, Monitoring If Complicated for Environmental Commenters, What About Builders or RWQCB Staff ?

8. Environmental Commenters applaud concept of effluent limit of 1000 ntu, applying the trip wire concept Perhaps this limit will allow for at least some streamlined enforcement of construction permits--with resulting increases in compliance rates. Not Representative of BAT, or protective of Water Quality--25 NTU is an appropriate number

9. Example: Santa Monica Bay Watershed

10. Santa Monica Bay Watershed is one of the most highly erosive watersheds in Southern California. Because of this natural condition, the streams in the watershed have higher levels of turbidity caused by runoff during rain events. To adequately protect California streams the Turbidity numeric effluent limit should be 25 NTUs or less. This limit is supported by studies showing that construction sites can consistently meet 25 NTUs by applying the BAT standard required by current laws.

11. 25 NTUs is an achievable turbidity numeric effluent limit and will considerably minimize the amount of resources needed to administer the General Construction Stormwater permit (water boards’ staff time and monies).

12. Turbidity Levels at Impacted Sites (Santa Monica Bay Watershed)

13. Turbidity Levels at Minimally Impacted Sites (Malibu Creek Watershed)

14. Inadequate BMPs at Solstice Creek Restoration Project (01/22/ 2008)

15. Construction BMP Failure at Solstice Creek Restoration Project (01/24/ 2008)

16. Malibu Lagoon Restoration Project (parking lot) – 01/24/2008

17. Improper Exemptions Permit Improperly Limits Scope of Coverage in at Least Two Situations –Coverage Requirement Cannot Be Made Contingent on Army Corps Jurisdictional Determination –Oil and Gas Exploration and Production Cannot Be Excluded

18. Exemption 1 Paragraph 32 provides “The following discharges are not required to obtain coverage under this General Permit: […] Discharges to non-jurisdictional waters (as determined by the US Army Corps of Engineers).

19. Page 1 STATE WATER RESOURCES CONTROL BOARD (SWRCB) ORDER NO. 99 - 08 - DWQ NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) GENERAL PERMIT NO. CAS000002 WASTE DISCHARGE REQUIREMENTS (WDRS) FOR DISCHARGES OF STORM WATER RUNOFF ASSOCIATED WITH CONSTRUCTION ACTIVITY The State Water Resources Control Board finds that: 1. Federal regulations for controlling pollutants in storm water runoff discharges were promulgated by the U.S. Environmental Protection Agency (USEPA) on November 16, 1990 (40 Code of Federal Regulations (CFR) Parts 122, 123, and 124). The regulations require discharges of storm water to surface waters associated with construction activity including clearing, grading, and excavation activities (except operations that result in disturbance of less than five acres of total land area and which are not part of a larger common plan of development or sale) to obtain an NPDES permit and to implement Best Available Technology Economically Achievable (BAT) and Best Conventional Pollutant Control Technology (BCT) to reduce or eliminate storm water pollution. On December 8, 1999 federal regulations promulgated by USEPA (40CFR Parts 9, 122, 123, and 124) expanded the NPDES storm water program to include storm water discharges from municipal separate storm sewer systems (MS4s) and construction sites that were smaller than those previously included in the program. Federal regulation 40 CFR § 122.26(b)(15) defines small construction activity as including clearing, grading, and excavating that result in land disturbance of equal to or greater than one acre or less than five acres or is part of a larger common plan of development or sale. Permit applications for small construction activities are due by March 10, 2003. 2. This General Permit regulates pollutants in discharges of storm water associated with construction activity (storm water discharges) to surface waters, except from those areas on Tribal Lands; Lake Tahoe Hydrologic Unit; construction projects which disturb less than one acre, unless part of a larger common plan of development or sale; and storm water discharges which are determined ineligible for coverage under this General Permit by the California Regional Water Quality Control Boards (RWQCBs). Attachment 1 contains addresses and telephone numbers of each RWQCB office. 3. This General Permit does not preempt or supersede the authority of local storm water management agencies to prohibit, restrict, or control storm water discharges to separate storm sewer systems or other watercourses within their jurisdiction, as allowed by State and Federal law.

20. 2. This General Permit regulates pollutants in discharges of storm water associated with construction activity (storm water discharges) to surface waters, except from those areas on Tribal Lands; Lake Tahoe Hydrologic Unit; construction projects which disturb less than one acre, unless part of a larger common plan of development or sale; and storm water discharges which are determined ineligible for coverage under this General Permit by the California Regional Water Quality Control Boards (RWQCBs). Attachment 1 contains addresses and telephone numbers of each RWQCB office.

21. Example of Impacts of Exemption: Mandeville Canyon

34. Cannot Exempt Oil and Gas EPA regulations that attempted to exempt discharges from construction at oil and gas exploration and production facilities overruled by 9th Circuit –Natural Resources Defense Council v. United States Environmental Protection Agency, No. 06-73217 (9th Cir, May 23, 2008) State Board reliance on these regulations in paragraph 32, 9th bullet to exempt oil and gas no longer valid

35. Cannot Exempt Oil and Gas 9th Circuit rationale –Oil and Gas exemption in CWA only applies to uncontaminated discharges –Energy Policy Act amendments to CWA did not change need for permit for contaminated discharges, including discharges related to construction activities at oil and gas facilities –EPA’s shift from long-standing policy requiring permits for discharges related to construction activities at oil and gas facilities not justified

36. Cannot Exempt Oil and Gas Even during construction, 402(l)(2) of CWA only exempts discharges of uncontaminated storm water At a minimum, 40 C.F.R. 122.26(c)(1)(iii) identifies those oil and gas facilities that must obtain permit coverage Requirements in 40 C.F.R. 122.26 must be implemented by State Board

37. Response to Board Member Wolff’s Questions

38. Question #1 - Most and Least Valuable Aspects of Permit Complexity Board elected statewide permit for “efficiency” Question acknowledges “widely different physical conditions across sites” - result is very complicated scheme Over-complexity makes permit unenforceable Where are the savings? –Cost to issue permit minimized at cost of permit implementation –Transparency and simplicity paramount

39. Question #1 - Most and Least Valuable Aspects of Permit Complexity Complexity Useful –Risk assessment Allows for permittees and staff to work together to address BMP needs at vastly different sites If implemented properly should be more protective of water quality than previous permit

40. Question #1 - Most and Least Valuable Aspects of Permit Complexity Alternatives to overly-complex permit –Several permits across the state to address different conditions –Different permits issued by different regional boards to address local conditions –If elect to use statewide general permit Need WQS and BAT based numeric effluent limitations to provide simplicity Notwithstanding complexity to determine BMPs that may be appropriate for different situations

41. Question #2 - Database on BMP Performance Fundamentally disagree that self monitoring by dischargers has no value Would be valuable to have rigorous, independent, and random monitoring to evaluate BMP performance Not in lieu of monitoring by permittees - still must have monitoring to determine compliance Must be fee-based structure

42. Question #3 - Desirability of Tiered Compliance Structure Important step towards readily enforceable standards - numeric effluent limtations - in the construction storm water permit Does not satisfy core requirement of CWA of implementation of BAT/BCT and WQBELs

43. Question #3 - Desirability of Tiered Compliance Structure Scheme likely will help simplify enforcement in some cases –Not a substitute for development of numeric effluent limits to evaluate compliance of all permittees (not just egregious violators) Action levels may simplify oversight but system that prohibits using them to demonstrate non-compliance undermines permit enforceability