The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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July 15, 2005 The Water Report Urban Stormwater MEP Deficient? Permit Strictures SWRCB Review "Waste Per Se" "Into" Provision SWRCB Interpretation metropolitan and suburban areas throughout California and across the US. These permits are significantly greater in scale and complexity than most other water quality permits. They cover discharges that are truly massive in volume, which commingle runoff from innumerable sources. The San Diego permit broke the nexus between water quality obligations and MEP. It rejected the prior policy approach that, "implementation of best management practices is the `functional equivalent' of meeting water quality standards. "(16) It rejected the sufficiency of MEP as a compliance standard, finding MEP to be deficient.(17) The permit repeatedly claims the authority to require — in addition to MEP — "whatever else is needed" to meet water quality standards.(18) This uncoupling had the effect of subordinating MEP compliance to water quality standards compliance, in effect replacing the "practicable" with the virtually unattainable. The San Diego permit placed the municipalities in an untenable position. CONSIDER, THE PERMIT: • First, declares that municipalities are the major source of water quality problems in the region (19) • Second, acknowledges that, even with the permit, these problems would persist for decades (20) • Third, prohibits permittees from discharging water that may contribute to violations of standards, at any time during the lifetime of the permit (2001 -2006) (21) The permittees were being ordered to not contribute to a situation the agency had identified as a chronic long -term problem, not capable of improvement for "at least 10 to 20 years." The permittess cannot stop the rain from falling and carrying at least some pollutants to the region's waters. Many sources of pollutants are beyond the municipalities' control. THE CHALLENGE TO THE SAN DIEGO PERMIT SWRCB Approves Permit's Subordination of MEP SCALES BACK OTHER PERMIT PROVISIONS NPDES permits issued by California regional boards may be appealed to SWRCB for administrative review.(22) The Building Industry Association of San Diego County (BIA) brought such an appeal regarding the San Diego permit, resulting in a precedential decision issued in November 2001.(23) Although SWRCB held the San Diego regional board was not limited by MEP — the key issue in the subsequent litigation — SWRCB overturned certain other extreme features of the San Diego permit, and limited the permit's application of water quality standards. The San Diego permit as promulgated by the regional board contained a finding that all rainfall runoff in the metropolitan San Diego area was "waste per se," regardless of content. This sweeping finding ignored the potentially beneficial aspects of rainfall runoff, especially in an and region. The finding was rejected by SWRCB which, alternatively, focused on whether specific drainage contains "harmful concentrations of materials. "(24) The San Diego permit as promulgated specified that the point of compliance was where urban runoff entered the public storm drain (defined to include the curb, street and gutter, and catch basins). This so- called "into" provision discouraged approaches to reduce pollutants in stormwater after it entered the collection system, where they might more efficiently and cost - effectively be controlled. SWRCB held the "into" provision, "too broadly restricts all discharges `into' an MS4, and does not allow flexibility to use regional solutions, where they could be applied in a manner that fully protects receiving waters. "(25) The San Diego permit as promulgated defined the entire public storm drain system to be "waters of the United States." This prompted concern that water quality standards would be asserted as applicable throughout the MS4. SWRCB limited this definition, observing, "there may be instances where MS4s use `waters of the United States' as part of their sewer system " — arguably leaving the issue to a case -by- case determination. Regarding the 1987 federal MEP standard, SWRCB interpreted Defenders of Wildlife v. Browner (9`h Cir. 1999) 191 F.3d 1159, rehg. den., 197 F.3d 1035, as granting regional boards federal law authority to reject a BMP -based approach limited by MEP. Although SWRCB acknowledged that "Browner allows the issuance of municipal storm water permits that limit their provisions to BMPs that control pollutants to the maximum extent practicable (MEP), and which do not require compliance with water quality standards," SWRCB considered this approach optional, concluding, "we decline to adopt that approach." Importantly, SWRCB proceeded to characterize the San Diego permit as not requiring "strict compliance with water quality standards." Instead, it viewed the permit as incorporating an "iterative approach, which focuses on timely improvement of BMPs," seeking "compliance over time." SWRCB contrasted the San Diego approach with one requiring strict compliance with numeric effluent limitations for stormwater discharges. CopyrightO 2005 Envirotech Publications; Reproduction without permission, strictly prohibited.