HomeMy WebLinkAbout17 - Stormwater and Urban Runoff Municipal PermitITEM I?
TO: Members of the Newport Beach City Council
FROM: Dave Kiff, Assistant City Manager
SUBJECT: New Regulations on Stormwater and Urban Runoff:
Proposed 5 -Year Municipal Permit
RECOMMENDED 1) Authorize the Mayor to issue a letter to the California Regional Water
ACTIONS: Quality Control Board, Santa Ana Region, stating the City's position that the
Permit should:
A. Require measurable increases in awareness within the Public Education
section, similar to the San Diego Permit's language;
B. Require structural BMPs, including onsite treatment of runoff ( SUSMP)
for certain new development and significant redevelopment,
C. Specifically authorize cities to - at cities' discretion -- prohibit excessive
runoff from residential areas and landscape irrigation flows;
D. Maintain and support the Permit's language relating to Inspections,
General Plan review and General Plan amendment, and
E. Direct all jurisdictions in the Permit area to complete once a week street
sweeping with parking enforcement along each sweeper route.
2) Direct the General Plan Update Committee to include the proposed Permit's
requirements relating to general plans in the scope of the General Plan
Update.
3) Direct City staff to analyze and report back on the environmental and
economic effects of adopting a citywide SUSMP or structural BMP
requirement in advance of any similar action by the Regional Board.
4) Approve Budget Amendment #_ increasing the City's contribution to the
County of Orange's NPDES administration by $16,291.14 from $20,000 to
$36,291.14.
QUICK SUMMARY Cities are directed to control runoff entering storm drain systems (called
AND TERMS: Municipal Separate Storm Sewer Systems or "MS4s ") so that the runoff does not
hurt water quality at the end of the pipe. Newport Beach has more than 104
miles of MS4s that enter Newport Bay or the Pacific Ocean at about 212 locations.
Newport Bay is an impaired water body, meaning that it has been placed on the
federal Clean Water Act's Section 303(4) List due to excessive sediment, nutrients,
fecal coliform, and toxic materials. The Newport Beach Marine Life Refuge Area
of Special Biological Significance (ASBS) lies off the coast of Little Corona.
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A 5 -year permit (Municipal Permit) issued by the California Regional Water
Quality Control Board, Santa Ana Region (Regional Board) regulates the discharge
of runoff out of a city's storm drain system. On December 19, 2001, the Regional
Board will likely adopt a new 5 -year permit (through 2006) for the City, the
County, and 24 other co- permittee cities. The permit tells us how to limit urban
runoff, enforce and report violations, educate residents and businesses, and to
maintain Permit compliance.
The proposed permit (Permit) has generated controversy from environmental
groups (who argue that the Permit is too soft) and business groups (who argue
that parts of the Permit are too tough). This staff report describes the Permit and
identifies areas of the Permit that we believe deserve modification - sometimes
to a tougher standard, sometimes to a lesser standard.
This staff report is extensive - readers who wish to get to a summary of the
issues within the Permit should turn immediately to Appendix A.
DETAILED When Governor Ronald Reagan and the California State Legislature approved
BACKGROUND: the Porter - Cologne Water Quality Control Act of 1970 (Porter - Cologne), it was one
of the nation's first comprehensive attempts to improve surface and recreational
water quality within a state. Porter - Cologne grants the State Water Resources
Control Board (State Board) and its nine Regional Boards broad powers to protect
water quality. Porter - Cologne is the primary vehicle to implement the federal
clean water laws in California.
After creating the US Environmental Protection Agency in 1970, President Nixon
and the US Congress passed the 1972 federal Water Pollution Control Act (now
called the Clean Water Act or CWA). Among other things, the CWA:
• Stated the nations goal that "the discharge of pollutants into navigable
waters be eliminated by 1985."
• Set up a system of permits for any wastewater discharge under US EPA - a
system called the National Pollutant Discharge Elimination System (NPDES).
• Declared that wastewater must be treated with the best technology
economically available regardless of the condition of the receiving water.
Performance Standards. NPDES says that all facilities that discharge pollutants
from any point source into waters of the United States must have a permit. It
introduced a series of important terms into the water quality arena, including:
• Point Source. A point- source discharge is one from a discernible, confined
and discrete conveyance, such as a pipe, ditch, or channel. Urban runoff -
while not starting from a known source - becomes a point- source discharge
once it enters an MS4.
• Non -Point Source. A non -point source discharge is one from something less
identifiable, like agriculture, forestry, or mining operations.
• Maximum Extent Practicable (MEP). MEP means reducing pollutants "to the
maximum extent feasible, taking into account ... competing factors,
including ... (the) gravity of the problem, technical feasibility, fiscal
feasibility, public health risks, societal concerns, and social benefits"
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• Best Management Practices (BMPs). BMPs are "practices maximized in
efficiency for the control of storm water runoff pollution" and include
actions like sandbagging graded land to limit erosion, installing filters in
catch basins, and street - sweeping using regenerative air sweepers.
Three Permits to Know. NPDES introduced three types of permits to the water
quality lexicon. These include:
• Municipal Stormwater Permits. Amendments to the CWA in 1987
established schedules so that municipal storm water discharges would be
regulated by NPDES permits. As such, stormwater - defined as any wet- or
dry - weather flow into a municipal separate storm sewer system (MS4) was a
regulated point- source. Discharges from MS4s were required to have controls
to reduce pollutant discharges to the maximum extent practicable (MEP).
An MS4 is a system of conveyances (including roads with drainage systems,
municipal streets, catch basins, curbs, gutters, ditches, man -made channels,
or storm drains) owned or operated by a city that is designed for collecting
storm water and that discharges into waters of the United States. Newport
Beach operates a 104 -mile long MS4.
MS4s' permits are similar to many other NPDES permits - the permits
contain limits on what can be discharged, monitoring and reporting
requirements, and other provisions to ensure that the discharge does not
hurt water quality or people's health. The Permit referred to in this report is
a municipal stormwater permit.
• Construction Permits. The State Board also issues a blanket State General
Construction Activity Stormwater Permit that applies to construction
activity affecting 5 or more acres. Regional Boards enforce construction
permits, but cities are obligated to do so in cooperation with the RBs.
Today, eleven sites in Newport Beach (including Hoag Hospital, Fletcher
Jones Motorcars, One Ford Road, the Balboa Bay Club, 500 Superior Avenue,
and the Bonita Canyon Sports Park) operate under the statewide
Construction Permit issued by the Regional Board. The Newport Coast
contains another 18 construction permit sites.
• Industrial Permits. Regional Boards regulate runoff from most industrial
activities (manufacturing and more) via the General Industrial Activities
Stormwater Permit. Newport Beach has just two sites (Conexant Systems
and Hixson Metal) that have industrial permits.
Regional Boards - Two for Orange County. As noted, the State Board delegates
much of the State's water quality responsibility to its nine Regional Boards (RBs).
Because the state's nine regions are divided by watershed boundaries, not by
political boundaries, Orange County's water quality issues are addressed by two
regional boards - Santa Ana Regional Board and the San Diego Regional Board.
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Regional Board 8 (Santa Ana) Map
Regional Board 9 (Sari Diego) Map
Fl
Regional Board 9 (Sari Diego) Map
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Regional Boards are responsible for reviewing, amending, approving, and
enforcing municipal NPDES 5 -year permits, but the California Water Code
actually prohibits boards from dictating actions or behaviors. Section 13360 of
the Water Code reads as follows:
"No waste discharge requirement or other order of a regional board ... shall specifij
the design, location, hjpe 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 lau ful manner."
Developing the 5 -Year Permit - How it Works. As "lead permittee" for the 5-
year Permit, the County of Orange first develops a draft Drainage Area
Management Plan (DAMP). The DAMP describes how the County and the cities
of Anaheim, Brea, Buena Park, Costa Mesa, Cypress, Fountain Valley, Fullerton,
Garden Grove, Huntington Beach, Irvine, La Habra, La Palma, Laguna Hills,
Laguna Woods, Lake Forest, Los Alamitos, Newport Beach, Orange, Placentia,
Santa Ana, Seal Beach, Stanton, Tustin, Villa Park, Westminster, and Yorba Linda
will attempt to control urban runoff. Both Laguna Woods and Lake Forest are
within both Regional Boards' jurisdictions. The cities and the County serve a
population of approximately 2.8 million and occupy an area of approximately
786 square miles.
The permittees submit the DAMP about a year before the anticipated expiration
of the operative 5 -Year Permit. The Regional Board then reviews the DAMP and
issues proposed or tentative Waste Discharge Requirements (WDRs) within a
tentative Order of the Regional Board. After a series of workshops and public
hearings, the Regional Board and its staff may revise the WDRs and the Order to
reflect the comments received. The last step is formal adoption by the Board of
the WDRs and the Order.
The current Order (Order #96 -31) expired on March 1, 2001. On September 1,
2000, the County applied for a new Permit. On March 5, 2001, the Board
extended Order # 96 -31 until the Board could adopt a new Permit. Order #01 -20
is now under consideration by the Santa Ana Regional Board and is in its third
draft (November 5, 2001). A similar order - Order #01 -02 - is under
consideration by the San Diego Regional Board.
KEY PERMIT ISSUES: While urban runoff management may seem arcane to some, the discussion over
the boards' consideration of the San Diego Permit and the Santa Ana Permit has
been heated. Municipalities, environmental groups, the building industry, and
others have scrutinized the permits and actively lobbied for modifications. Most
people believe that the Santa Ana Permit is less restrictive and less directive than
the San Diego/ South Orange County Permit.
The areas of interest to Newport Beach are as follows (please note that when this
staff report refers to "Permit," it means the Santa Ana Permit):
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A - Municipal BMPs. Today we are directed to control contaminated runoff via
catch basin cleaning, street sweeping, stenciling of catch basins, hazardous
materials spill responses, and fertilizer and pesticide BMPs. The proposed
Permit directs us to:
• Develop and distribute "model maintenance practices" for public agency
activities plus pollution prevention measures;
• Inspect and maintain 80% of our "drainage facilities" annually, with 100% of
the facilities "addressed" every two years;
• Look for places where we can install natural water quality wetlands;
• Train field staff and contracted field staff.
How should Newport Beach Respond? Today, only Newport Beach, Santa Ana, and
Laguna Beach have 441
Aly street sweeping in commercial areas. Most other cities
sweep commercial areas weekly. Almost all cities - including Newport - also
sweep residential areas weekly. While the current enforceable DAMP
(developed in 1993) directs only monthly street sweeping, all cities (and now the
County) report bi- monthly sweeping at a minimum. Some cities include parking
enforcement with sweeping activities.
While the Regional Board is prohibited from telling us what to do, I believe that
protecting water quality to MEP means mandatory street sweeping at least once
a week in all areas of a city. I believe, too, that parking enforcement should be
mandated along each street sweeping route - though a period of time using
advisory notices may be appropriate before ticketing. The Council may wish to
urge the Regional Board and upstream cities to, once the "model maintenance
practices" are out, require (at a minimum) weekly street sweeping in commercial
and residential areas with full parking enforcement.
As to drainage facilities like v- ditches and catch basins, MEP dictates that we
inspect and clean each catch basin and v -ditch in our jurisdictions at least once a
year. The Permit appropriately directs all permittees to move towards more
"aggressive" catch basin cleaning by 2004 -05. I don't recommend a change here
given the Board's encouragement to clean more basins soon.
B — Public Education. Nothing in the current permit requires us to educate our
residents and businesses as to water quality issues. The proposed Permit says
that "the goal of the public and business education program shall be to target
100% of the residents including businesses, commercial, and industrial
establishments." Interestingly, the San Diego proposed permit directs the
permittees to:
...implement an Education Component using all media as appropriate to:
(1) measurably increase the knowledge of the target communities regarding MS4s,
impacts of urban runoff on receiving waters, and potential BMP solutions for the
target audience; and to
(2) measurably change the behavior of the target communities and thereby reduce
pollutant releases to the MS4s and the environment.
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How should Newport Beach Respond? The Council should ask the Santa Ana Board
to adopt the San Diego Permits language on education since achieving
measurable increases in knowledge is more meaningful than setting a "goal" of
targeting 100% of the residential and commercial base. Measurement may be
through special pre- and post - inquiries of specifically- targeted populations.
C - Newport Beach's Water Quality Ordinance. The proposed Permit directs us
to review the water quality ordinance that each city adopted in 1996 or 1997.
Newport Beach adopted our Ordinance (Chapter 14.36 of the Newport Beach
Municipal Code) in November 1997. Issues raised by the Permit are as follows:
1 -- Discharge Exemptions. Today the City's Water Quality Ordinance has a
general prohibition against polluted discharges ( "no person shall cause, allow
or facilitate any prohibited discharge... "), but it contains a series of 10
exemptions, including:
• Storm water;
• Discharges permitted under separate NPDES permits;
• Discharges from property where BMPs have been followed;
• Discharges into storm drains from water lime flushing, fire fighting
activities, landscape irrigation systems, diverted stream flows, more;
• Discharges from potable water sources, passive foundation drains,
building roof runoff, lawn watering, noncommercial vehicle and boat
washing, noncommercial animal washing, dechlorinated swimming pool
discharges, more;
• Discharges of reclaimed water generated by a lawful treatment facility,
public street wash waters when related to cleaning and maintenance by,
or on behalf of, the City; and
• Discharges for which the discharger has reduced to the extent feasible
the amount of pollutants in such discharge.
The proposed Permit maintains most of these exemptions, yet directs us to
review our Ordinance by July 1, 2003 to determine the effectiveness of the
Ordinance in prohibiting the following discharges into the storm drain system:
• Sewage;
• Wash water from gas stations and auto service stations;
• Discharges from the cleaning of equipment, autos, more;
• Wash water from mobile detailers, steam and pressure cleaning, more;
• Wash water from cleaning City and commercial parking lots, streets,
sidewalks, patios, plazas, more;
• Runoff from trash receptacles;
• Pool discharges with chlorine;
• Pet waste, yard waste, litter, debris, sediment; and
• Restaurant or food processing waste.
11- Enforcement. Today, the NBMC says that a person who violates the Water
Quality Ordinance may be subject to:
Administrative Remedies - notices of violation (NOVs), Administrative
Compliance Orders (ACOs), Cease and Desist Orders (CDOs), City
abatement, and City cost recovery;
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• Nuisance Abatement -- emergency City abatement, full City
reimbursement of costs, and a nuisance lien;
• Penalties and Fines for consecutive violations ($100, $200, and $500);
• Citation including arrest;
• Injunctions; and
• Penalties under the CWA.
The proposed Permit asks us to include sanctions in our Ordinance. 1 believe
that our Ordinance already contains appropriate sanction language, but the wide
range of prohibited discharge exceptions in the Ordinance make it difficult to
apply any sanctions. Since the Ordinance's adoption in 1997, the City has taken
more than 100 enforcement actions - they break down as follows:
• Five Notices of Non - Compliance;
• 108 Administrative Citations (since June 2000);
• $10,800 in fines (approximately); and
• One criminal case pending with District Attorney's Office
How should Newport Beach Respond? We will need to complete the Ordinance
review. 1 believe that the provision of the proposed Permit that directs us to
prohibit certain discharges is adequate, yet it continues to leave some residential
wash water and irrigation overflows untouched. The Permit also leaves it to our
discretion as to whether or not we want to clearly prohibit discharges from
commercial (and some residential) hose -downs - as an alternative, it suggests
using BMPs to limit these discharges. Depending upon progress after 12 -18
months, the Council may wish to ask the Board to consider language within the
permit that directs localities to limit excessive flows from residential activities,
including car washing and irrigation. As noted, Newport Beach may not have to
amend the enforcement section of our Water Quality Ordinance as a result of the
proposed Permit's anticipated adoption.
D — New Development and Significant Redevelopment. The proposed Permit
makes significant changes to the current permit with regard to land use
planning. These issues are as follows:
1- Planning /CEOA Process Review. We will be directed to - by December 19,
2002 - review planning procedures and our California Environmental Quality
Act (CEQA) processes to ensure that they address pollutants and runoff. It
urges the development of a runoff BMP checklist and training for project
proponents. These impacts will have to be identified and addressed during
CEQA review - the potential:
1. Impact of construction on storm water runoff;
2. Impact of post - construction activity on storm water runoff;
3. For discharge of storm water from areas from material storage, vehicle or
equipment fueling, vehicle or equipment maintenance (including
washing), waste handling, hazardous materials handling or storage,
delivery areas or loading docks, or other outdoor work areas;
4. For discharge of storm water to impair the beneficial uses of the receiving
waters or areas that provide water quality benefit;
5. For significant changes in the flow velocity or volume of storm water
runoff that can cause environmental harm; and
The Navport Beach
Marine Life Refuge ASBS
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6. For significant increases in erosion of the project site or surrounding areas.
H - General Plan Amendments. By July 1, 2004, the Permit directs us to
incorporate watershed protection principles and policies into the General Plan
and related documents (such as Development Standards, Zoning Codes,
Conditions of Approval, Development Project Guidance) and provide the
Regional Board with proof of this action. These principles and policies shall
include ways to:
1. Limit disturbance of natural water bodies and drainage systems; conserve
natural areas; protect slopes and channels; minimize impacts from storm
water and urban runoff on natural drainage systems and water bodies;
2. Minimize changes in hydrology and pollutant loading; require
incorporation of controls to mitigate increases in pollutants; ensure that
post - development runoff rates and velocities from a site maintain or
reduce pre - development downstream erosion, and protect stream habitat,
minimize the quantity of storm water directed to impermeable surfaces
and the MS4s; maximize the percentage of permeable surfaces to allow
more percolation of storm water into the ground;
3. Preserve wetlands, riparian corridors, and buffer zones; establish
reasonable limits on the clearing of vegetation from the project site;
4. Encourage the use of water quality wetlands, biofiltration swales,
watershed -scale retrofits, and more;
5. Provide for appropriate permanent measures to reduce storm water
pollutant loads in storm water from the development site; and
6. Establish development guidelines for areas particularly susceptible to
erosion and sediment loss.
111- WQMPs. The Permit requires Water Quality Management Plans
(WQMPs) that limit runoff from these types of developments:
• Anything that adds 5,000 sf of impervious surface;
• Housing of more than 5 units;
• New commercial construction (100,000 sf or more);
• Parking lots of more than 5,000 sf;
• Hillside development on 10,000 sf or more located on areas with known
erosive soil conditions or where the slope is 25 % or more;
• New developments of more than 2,500 sf of impervious surface within 200'
of an Area of Special Biological Significance (Buck Gully);
• New restaurants where land area is 5,000 sf or more; and
• All new retail gas outlets and auto repair shops.
A WQMP would be standards for these developments that limit water quality
impacts, including BMPs for source control, pollution prevention, "and /or"
structural treatment BMPs. Structural treatment BMPs typically mean systems
on the property to treat, clarify, or capture runoff from the first 0.75 - 0.80" of
any one 24 -hour rain event. Some refer to this as a Standard Urban Stormwater
Management Plan or SUSMP.
Structural BMPs have been a major point of contention in the Permit, since it
does not have a specific SUSMP requirement. The San Diego Permit and the
LA Permit both require SUSMPs immediately. Those who support a SUSMP
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requirement say that SUSMPs meet the MEP standard. Those who oppose a
SUSMP requirement say it is an onerous obligation on new development.
Our Permit allows us to use a WQMP to direct developers to install systems
that may or may not involve on -site treatment. However, if by October 2003
the Regional Board's Executive Officer (EO) doesn't agree that our WQMPs
treat or limit runoff as well as some SUSMPs, the EO can incorporate structural
BMPs into the Permit that filter or treat runoff from a 24 -hour, 850' percentile
storm event.
How should Newport Beach Respond? The proposed Permit's recommendations
regarding General Plan review and amendments are very sound. The Council
could give specific direction to the General Plan Update Committee to include
water quality and watershed impacts in the General Plan update.
As to WQMPs and SUSMPs, the California Coastal Commission, in several recent
cases, currently requires onsite treatment of storm flows when it issues a coastal
development permit (CDP) for a large new project. Since much of the city is
within the Coastal Zone and subject to these Commission directives, the Council
may wish to consider adol2ting policies today within the city that require
structural BMPs providing for the onsite treatment of the first 85% of rain in a 24
hour rain event for:
• New commercial construction (50,000 sf or more);
• Housing of more than 5 units;
• Parking lots of more than 5,000 sf;
• Significant redevelopment (adding 3,000 sf or more of impervious surface);
• New restaurants where land area is 5,000 sf or more; and
• All new retail gas outlets and auto repair shops.
These standards could automatically apply unless the project applicant can
prove that a SUSMP is impossible to install and that an alternative method - like
a privately - maintained direct storm drain to sewer diversion - is as or more
effective than on -site treatment.
The Council may wish to consider advocating before the Regional Board that
structural BMPs and numeric sizing criteria be applied immediately for all new
construction and significant redevelopment. Taking such a position will be
controversial with some in the development community. However, if our
upstream neighbors are subject to less stringent standards than Coastal Zone
cities, we may not - as a watershed -- be able to meet the very stringent Fecal
Coliform TMDL standards. As extensive new development occurs upstream
without SUSMPs, Newport Beach may be left shouldering a large part of the
TMDL's cost burden in the years to come.
E - Inspections. This section of the proposed Permit requires cities to identify
and then prioritize each construction site, certain commercial sites, and each
industrial site in the city as a high, medium, or low threat to water quality. Once
we prioritize sites, we must then inspect each site on a scheduled basis.
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1- Inspections of Construction Sites. The Permit defines a construction site as
one for which we have issued a building or grading permit and site activities
include soil movement, uncovered storage of materials, mixing of concrete
products, and more. The Permit defines a high priority construction site at a
minimum as one that is 50+ acres or is more than 5 acres and tributary to a
Section 303(d) List water body "listed for sediment..." Any site within 500 feet
of an Area of Special Biological Significance (ASBS) is also high priority.
Construction sites of 5 or more acres in Newport Beach will be "high priority"
if they drain into Upper Newport Bay, since all of Upper Newport Bay is on
the 303(d) list for sediment. Also, sites within 500' of the Crystal Cove ASBS or
the Newport Beach Marine Life Refuge ASBS (Poppy Ave southward) will be
high priority. Thus, the locations where construction sites may be de facto
designated as high - priority threats to water quality will be sites of 5+ acres in:
• Westcliff and Dover Shores;
• Santa Ana Heights, Bayview Heights;
• Eastbluff, the Bluffs, and Newport North
• Portions of Fashion Island
• Big Canyon
• Bonita Canyon and Newport Ridge North
• Newport Ridge, Newport Coast, and Pelican Point
• Spyglass Ridge, Harbor View, Harbor Ridge
...and any size construction site within 500' of the shoreline near Poppy
Avenue southward (parts of CDM, Cameo Shores, and the Newport Coast).
Medium- and low- threat sites are not defined in the permit. The following
schedule applies to the sites during October 1 through April 30:
• High Priority Sites - monthly;
• Medium Priority Sites - twice per wet season;
• Low Priority Sites - once per wet season.
During dry season, we must inspect each site enough to ensure control of
runoff. Inspections must include compliance with grading ordinances and
permits and reviews of erosion control and BMP implementation plans. Sites
out of compliance would be reported to the RB within 24 hours, sanctioned,
including monetary penalties, and require weekly follow -ups.
In 2000 -01, about 3,500 permitted construction sites existed in Newport Beach.
If the Permit was in place in 2000 -01, during October 1, 2000 through April 30,
2001, TBD sites would have had to be inspected monthly to evaluate erosion
control and related BMPs that reduce runoff.
II - Inspections of Commercial Facilities. The Permit directs us to inventory
these types of commercial businesses:
• Auto repair, fueling, or cleaning,
• Any vehicle repair or painting;
• Mobile auto or other vehicle washing;
• Mobile drape, carpet, or furniture cleaning;
• Mobile high pressure or steam cleaning;
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• Painting and coating;
• Nurseries and greenhouses;
• Landscape and landscape irrigation;
• Pool and fountain cleaning; and
• All commercial sites within 500' of an ASBS.
Like construction sites, the Permit directs us to prioritize each business listed
above as to whether it is a high, medium, or low threat to water quality. We
are directed to choose our own inspection frequencies and priorities according
to the relative threat to water quality. We are to inspect each high priority site
at least once by July 2003.
A water quality inspection will look at each business':
Material and waste handling and storage;
Pollutant control BMP implementation and maintenance; and
Evidence of past or present unauthorized discharges.
Sites discovered to be out of compliance will require monthly re- inspections,
reports to the Regional Board within 24 hours, monetary sanctions, and re-
inspections at least once a month. When the business meets standards, they go
on "probation' and have visits once every four months for a year.
Newport Beach has about TBD of these types of businesses.
III - Inspections of Industrial Facilities. The Permit directs us to inventory all
"industrial businesses' within city limits. Like construction and certain
commercial sites, the Permit directs us to prioritize each industrial site as to
whether it is a high, medium, or low threat to water quality. High priority
sites are those subject to the statewide Industrial Permit (we have two of these)
and facilities "with a high potential for or a history of unauthorized
discharges..." We are to follow this schedule for industrial site inspections:
• High Priority Sites - annual inspections, with all complete by July 2003;
• Medium Priority Sites - once every two years;
• Low Priority Sites - once during the Permit term.
A water quality inspection will look at each business'
Material and waste handling and storage;
Pollutant control BMP implementation and maintenance; and
Evidence of past or present unauthorized discharges.
Sites discovered to be out of compliance will require monthly re- inspections,
reports to the Regional Board within 24 hours, monetary sanctions, and re-
inspections at least once a month. When the business meets standards, they go
on "probation' and have visits once every four months for a year.
Newport Beach has about 65 industrially -zoned parcels.
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How should Newport Beach Respond? As background, today we send the following
staff resources out in the field to do various forms of inspection for compliance:
• Code Enforcement (2 FTEs) - look for residential and business code
violations, often on a complaint basis.
• Business License Inspectors (2 FTEs) - follow -up on new businesses (to build
a database) and do "windshield" searches for mobile businesses and
contractors who may be operating in the city without a license.
• Building Inspectors (11 FTEs) -- visit construction sites when called for
scheduled appointments. May "red tag" projects without building permits.
Inspect to see that building is constructed according to plans and that the
contractor complies with the City's grading and erosion control policies.
• Harbor Inspectors (1.5 FTEs) - look for violations of the Harbor Policy, some
water quality violations on the water.
• Fire Inspectors (2 FTEs plus station personnel) - visit all city businesses once
every three years. Visit businesses with special permits, sprinklers annually.
Look for Fire Code violations and safety issues. Typically unannounced.
• Refuse Inspector (classified as a Management Assistant) (1 FTE) - visit
construction, residential, and business sites to see that refuse containers are
covered, that only bins and roll-offs from franchised haulers are being used,
that products are being recycled, more.
The November 5, 2001 version of the Permit significantly softened inspection
requirements. Under the 11 -5 version, we may not have to increase many
construction site inspections except for sites in Cameo Shores or the last few
homes in CDM's Buck Gully. Few projects in Newport Beach will be 5 acres or
more. We will, however, have to ensure that our Building Inspectors visit each
medium- and low- priority construction site twice or once during the wet season
(regardless of where the project is in the construction process). As to commercial
facility and industrial facility inspections, Newport Beach is not home to many of
the listed businesses nor of industrial facilities.
This section of the November 5, 2001 Permit requires more analysis as to how we
will be able to comply with the inspection program, but is a significant enough
improvement over the September 12, 2001 language that I don't recommend
advocating any chanffes to these sections of the Permit.
What's Next? This report reflects the November 5, 2001 version of the Regional
Board's formal Tentative Order (the nearly- approved Permit). November 19,
2001 is the deadline for written comments about the Tentative Order. The Board
anticipates adopting the Order at its December 19, 2001 hearing in Santa Ana.
The Permit takes effect upon adoption and would remain in effect unless stayed
or amended by the State Water Resources Control Board via an appeal. Most
observers expect the Santa Ana Permit to be appealed by the environmental
community and possibly by the development community.
NPDES Item
Nmeinber 13, 2001
Page 14
Conclusion and Staff Recommendation. I believe that Newport Beach, as a
coastal city that often bears the brunt of urban runoff from a 154 - square mile
watershed area, should do the following:
A. Letter to the Regional Board. The City should correspond with the Santa Ana
Regional Board in advance of November 19, 2001 via a letter from the Mayor
stating the City's position that the Santa Ana Permit should:
1. Require measurable increases in awareness within the Public Education
section, similar to the San Diego Permit's language;
2. Require structural BMPs, including onsite treatment of runoff ( SUSMP) for
certain new development and significant redevelopment;
3. Specifically authorize cities to - at cities' discretion — prohibit excessive
runoff from residential areas and landscape irrigation flows.
4. Maintain and support the Permit's language relating to Inspections, General
Plan review and General Plan amendment;
5. After model maintenance procedures are provided to the Board, direct all
jurisdictions in the Permit area to complete once a week street sweeping
with parking enforcement along each sweeper route.
B. City Policies/ Direction to GPUC. The Council should direct:
1. the General Plan Update Committee include the Permit's general plan
requirements in the scope of the General Plan update.
2. City staff to analyze and report back on the environmental and economic
effects of adopting a citywide SUSMP or structural BMP requirement in
advance of any similar action by the Regional Board.
PLEASE NOTE: In a review of the September 12, 2001, version of the proposed
Permit, I wrote a letter to the Regional Board that reflected an interim position on
some of the less controversial issues in the 9 -12 version of the Permit. That letter
is attached as Appendix B.
The FY 2001 -02 Capital Improvement Program (CIP) for the City appropriated
$20,000 for the City's obligations to the County of Orange as the "lead permittee"
under this Permit. Since the new Permit will involve more education programs
and more administration by the County, the new assessment to the City for its
allocated share is $36,291.14. This agenda item asks that the Council approve a
Budget Amendment (see Appendix C) appropriating another $16,291.14 to the
CIP for the NPDES program.
ATTACHMENTS: Appendix A - Summary of Issues and Actions within the September 12, 2001,
Draft Permit for the Santa Ana Region (FRIDAY 11 -9 DELIVERY)
Appendix B - Interim letter sent on October 19, 2001, by Kiff
Appendix C - Budget Amendment of $16,291.14 for NPDES Program
NPDES Item
November 13, 2001
Page 15
Appendix A
(TO BE DELIVERED FRIDAY 11 -9)
NPDES Item
No einber 13, 2001
Page 16
Appendix B
CITY OF NEWPORT BEACH
October 19, 2001
Mr. Gerard J. Thibeault, Executive Officer
California Regional Water Quality Control Board, Santa Ana Region
3737 Main Street, Suite 500
Riverside, California 92501 -3348
VIA FACSIMILE: (9091781 -62�
RE: Comments on Order #01 -20, NPDES No CAS618030 (September 12, 2001 Draft)
Dear Mr. Thibeault:
This letter represents some of the City of Newport Beach's comments on the September 12, 2001
Draft of Order #01 -20. Our City Council will be discussing the Order in more detail in
November, but I wanted to pass along these comments prior to the Council's formal
deliberations since today is the deadline for comment on the third draft.
Please know that the City of Newport Beach sincerely appreciates your Board's work on this
Order. We see the Order as a viable and appropriate vehicle to reduce - and hopefully
eliminate - the water quality impacts of urban runoff.
Here then, are our comments:
1 -- Fire Fighting Flows (Section III - 4[o]). The Order proposes the following language for
emergency and non - emergency fire fighting flows:
Emergency fire fighting flows need not be prohibited; however, appropriate BMPs shall be
implemented to the extent practicable. BMPs nntst be implemented to reduce pollutants from non -
emergency fire fighting flows.
To eliminate any distractions besides protecting life safety during emergency events, we
strongly urge your Board to mirror the language in the San Diego Regions proposed Order
for South Orange County, which reads:
Emergency fire fighting flows do not require BMPs and need not be prohibited. The Co- permittees shall
collectively develop and irnplernent a program ... to reduce pollutants from non - emergency fire fighting
flows identified ... to be significant sources ofpollutants to the waters of the US.
NPDES Item
November 13, 2001
Page 17
2 - Public Education (Section XIII). We appreciate and support the 3rd Draft's inclusion of
language requiring that "the public and business education program makes a minimum of
10 million impressions per year" (XIII -3). This is an important addition to the previous draft
that, in part, helps us move from a somewhat ambiguous "target" of 100° of the population
to something more specific and measurable. The direction to include a hotline for reporting
potential violations and for improperly maintained municipal facilities is commendable, too
(XIII -4).
Because the goal of any educational program is to change behaviors in a measurable way,
we urge the Board to add a provision to Section XIII that includes language similar to the
San Diego Regions proposed Order for South Orange County, which directs that any
education component:
(1) measurably increase the knowledge of the target communities regarding MS4s, impacts of urban runoff
on receiving waters, and potential BMP solutions for the target audience; and
(2) measurably change the behavior of the target communities and thereby reduce pollutant releases to the
MS4s and the environment.
3 - Inspection Programs for Construction Areas and for Commercial and Industrial Sites
(Sections VIII and IX). While these programs and these requirements may be costly, we
support them. It is important to implement routine inspections watershed -wide -
inspections that serve both to educate and to investigate. While some may argue that the
current program - whereby areas are investigated and inspected based on a known water
quality problem - is sufficient, we may still be missing areas that generate impairments.
Our water quality testing efforts that identify problem areas - while in many cases the "state
of the art" - can still be woefully inadequate in consistently and continually identifying
problems across the watershed's M54 network.
4 - Municipal Facilities and Inspections (Section XIV -- 6). Newport Beach believes that
the MEP standard for catch basin inspection and cleating should be set at 100° of all catch
basins annually. Admittedly, Newport Beach does not meet this standard today - but it is
one that is unarguably MEP for us and we hope to aggressively move towards meeting it.
Thank you for this opportunity to comment on the September 12, 2001 Draft Order. Please
direct any questions you may have to me at 949 -644 -3002.
Sincerely,
-- COPY --
Dave Kiff
Assistant City Manager
cc: Members of the Newport Beach City Council
Mr. Homer L. Bludau, City Manager
Chief Tim Riley, Newport Beach Fire Department
Ms. Karen Ashby, Orange County Public Facilities and Resources Division
City of Newport Beach
BUDGET AMENDMENT
2001 -02
ECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriations
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
NO. BA- 021
AMOUNT: S1s,291.14
Increase in Budgetary Fund Balance
AND X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
This budget amendment is requested to provide for the following:
To increase the City's contribution to the County of Oran a NPDES administration by $16,291.14 from
General Fund unappropriated surplus fund balance. This budget amendment will increase existing
appropriations for this project from $20,000 to $36,291.14.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Eund Account
010 3605
NUE ESTIMATES (3601)
Fund / Divisinn Account
EXPENDITURE APPROPRIATIONS (3603)
Amount
Debit
Description
Fund Balance $16,291.14
Description
Signed:
Siged:
Signed:
Approval: Administrati—ve Services Director
Administrative Approval: City Manager
City Council Approval: City Clerk
Credit
$16,291.14
Date
Date
Date
Description
Division
Number
7012 Drainage Projects
Account
Number
C5100011 National Pollutant Discharge Elimination System
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed:
Siged:
Signed:
Approval: Administrati—ve Services Director
Administrative Approval: City Manager
City Council Approval: City Clerk
Credit
$16,291.14
Date
Date
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NATURAL RESOURCES DEFENSE COUNCIL DEFEND THE BAY
October 18, 2001
VIA FACSIMILE (909) 781 -6288 and US MAIL
Mr. Gerard J. Thibeault
Executive Officer
Santa Ana Regional Water Quality Control Board
3737 Main Street, Suite 500
Riverside, CA 92501
Re: NPDES Permit for Orange County, Order No. 01 -20
( NPDES No. CAS 618030 )—Comments on September 12, 2001 Draft
and September 21, 2001 Response to Comments
Dear Mr. Thibeult:
On behalf of Defend the Bay and the Natural Resources Defense Council, we wish
to submit the following comments on the current draft of the above - referenced permit
( "Proposed Permit'). Defend the Bay is a non - profit organization dedicated to protecting
local waters including Newport Bay and the ocean. The Natural Resources Defense
Council is a national, non - profit environmental organization with over 500,000 members,
approximately 50,000 of whom reside in Southern California.
Our comments focus largely on new issues raised by the September 12, 2001 draft
of the Proposed Permit; Staff's responses to previous comments; and one of the most
fundamental problems with the Proposed Permit and associated DAMP: the failure of
these documents to comply with the Maximum Extent Practicable standard set forth in
the Clean Water Act and receiving water quality standards. We incorporate our original
July 20, 2001 comment letter ( "July comments ") as if set forth in fill herein, as virtually
all of the issues raised in that letter are germane to the current draft of the Proposed
Permit.
I. Comments on New or Revised Sections of the Proposed Permit
We are pleased to see that Staff have improved the Proposed Permit by adding
provisions that would establish inspection protocols for construction sites (Section VIII)
and commercial facilities (Section IX). We also appreciate the fact that Staff have
required special consideration of water quality degradation in both the CEQA and general
planning processes. These are valuable programs that will make a difference in reducing
water pollution if implemented by the permittees.
Defend the Bay/NRDC Comments
October 18, 2001
Page 2
We are concerned, however, that Staff have deleted a provision that would have
required that pre - development hydrology be maintained after development (with respect
to both quality and flow components). See RWQCB Response to Comments (September
21, 200 1) at 17. There is no articulated basis for this decision, which makes the Proposed
Permit notably weaker than those issued in comparable jurisdictions (as discussed below).
Moreover, the only conceivable basis for Staff's position that no anti - degradation analysis
is required before issuance of the Proposed Permit is a provision such as this one. The
deletion of this provision implies strongly that the Proposed Permit will allow water
quality degradation. For this reason, and those previously stated in our July comments, at
minimum an anti - degradation analysis is clearly required prior to Permit issuance. As
previously stated, given the terms of the Permit, the dramatic growth patterns of the
region, and the clear connections between urbanization and water quality impairment
(see, e.g., Order No. 2001 -01, San Diego County NPDES Permit No. CAS0108758,
Findings 3, 4, and 5), no evidence supports the proposition that this Permit will preclude
degradation of water quality below those levels currently and previously attained in
Orange County.
H. Regional Board Response to Comments
We appreciate the fact that responding to comments takes time when the Regional
Board is proposing issuance of a major permit such as this one. However, the Board has
a duty to assure that its responses are substantive and, of course, actually responsive to
the points being made. See 40 C.F.R. § 25.8. In California, the Office of Administrative
Law recently interpreted the legal standard applicable to an agency's response to
comments pursuant to the Clean Water Act. Los Angeles Regional Water Quality
Control Board (adoption of Regional Board Resolution 98 -18), CAL File No. 99- 0602 -01
( "OAL Decision re Los Angeles RWQCB") (attached). CAL's opinion emphasized that
an agency must respond to all aspects of public comments. Its responses must
meaningfully engage the issue raised and cannot be conclusory. California courts also
have emphasized in other contexts that an agency's response to comments must contain a
"good faith, reasoned analysis" and "[c]onclusory statements unsupported by factual
information will not suffice." People v. County of Kern, 39 Cal. App. 3`d 830,841-42
(1974) (noting special duty when comments made by experts and sister agencies); see
also Environmental Protection Information Center v. Johnson, 170 Cal. App. 3d 604, 627
(1985).
Unfortunately, in the majority of instances in which Defend the Bay and NRDC
commented about provisions of the Proposed Permit, Staff either failed to respond at all
or failed to respond in a minimally adequate fashion. In particular, but without limitation,
Staff's responses to comments addressing the adequacy of the DAMP and associated
Permit findings (Response to Comments Nos. 37; 40; 44; 47; 50; 51; 34; and 38) are
superficial and conclusory. Staff's response to a fact -based question about why drain
cleaning protocols in Orange County are lenient compared to those in Los Angeles
Defend the Bay/NRDC Comments
October 18, 2001
Page 3
County typifies the circular and conclusory tone of the Responsiveness Summary:
"What is appropriate for Los Angeles County may not be appropriate for
Orange County. The MEP standard for Orange County should be based on
what is appropriate for Orange County."
Regional Board's Response to Comments at 13, No. 51.
Another example concerns our comment that the Santa Ana Region must assure
that it can comply with required inspection and audit frequencies for municipal
permittees. In its response, Staff argued that this comment is "not based on facts," and
Staff cited a federal EPA report as evidence that it maintains a lawful program. Id. at 10,
No. 38. In point of fact, the EPA report at issue reinforces our contention by stating that
the Regional Board has "fallen short in maintaining ... targeted audit frequency." EPA
NPDES Program Implementation Review —Final Report, Santa Ana Regional Water
Quality Control Board (April 16, 2001) at 3. In any case, Staff have not provided a
substantive response to the essential issue: will the Region meet State requirements, as
set forth in the cited formal SWRCB documents?
A third example of the generally non - responsive nature of the Responsiveness
Summary concerns our comment regarding the need to conduct an anti - degradation
analysis. Staff's reluctance to employ such a basic permitting tool is difficult to
understand. Whatever the reason for this disinclination, Staff's response does not address
the majority of the points we made, particularly, that growth patterns and urbanization
(and the recognized effects of both) are certain to increase pollutant loading during the
permit term. (This is now especially true given the deletion of the Proposed Permit
requirement that pre - development flow and pollutant loading mimic pre - development
levels, as discussed above.) Further, we are extremely surprised that Staff would assert—
without factual basis —that "the storm water monitoring results for Orange County for the
last ten years indicate no degradation of water quality resulting from discharges regulated
under this permit." Regional Board's Response to Comments at 1, No. 42. In fact,
monitoring results, as well as other studies locally and nationally, many of which are cited
in our July comments, demonstrate beyond argument that storm water runoff in Orange
County does threaten to cause or contribute to excedences of water quality standards and
does also cause or contribute to impairments, including those on the Regional Board's
Section 303(d) List. The Permits of virtually every Regional Board in California
recognize the impact of storm water runoff, notably including those Boards with
jurisdiction over Los Angeles and San Diego Counties. The notion that northern Orange
County is exempt from this state and national reality is incongruous to say the least.
Indeed, this claim contradicts the Findings and Fact Sheet that accompany the Proposed
Permit itself.
Finally, and more generally, with respect to the adequacy of the Permit and
DAMP see id. at Comment No. 37; 40; 44 et al.), Defend the Bay and NRDC
Defend the Bay /NRDC Comments
October 18, 2001
Page 4
have raised a fundamentally significant issue and supported our perspective on the
issue with a submittal from one of the foremost experts in the country, Professor
Richard Horner. As further described below and as discussed in our July
comments, we believe that the DAMP and the Proposed Permit itself are not
designed to meet the MEP standard nor calibrated to assure that permitted
discharges do not cause or contribute to a violation of water quality standards. In
particular, the DAMP is extremely inadequate, and the Proposed Permit does not
rectify all of these inadequacies through the implementation of new requirements
(although it does go beyond the DAMP). We have identified the lack of evidence
in the record to support proposed findings regarding this issue; we have pointed
out (and also offer additional comments, below) that the DAMP itself falls below
the standards set in comparable jurisdictions; and we have provided the views of a
nationally - recognized expert. Yet, Staff deflect the issue without so much as a
substantive response nor reference to any evidence explaining why Staff believe
the Proposed Permit and DAMP comply with the MEP and receiving water
limits.1
III. Failure of the Regional Board to Either Assure that the Storm Water
Management Program Complies with Legal Standards or to Remove
Language From the Proposed Permit "Approving" the Program.
As we previously stated, Defend the Bay and NRDC do not believe that there is
evidence in the record that the Proposed Permit and DAMP, taken together, will result in
a program that meets the maximum extent practicable standard or receiving water limits.
Indeed, nowhere in the DAMP, nor in the Proposed Permit, is there any real discussion
about the manner in which the MEP standard has been implemented or considered
(although the term is used a number of times).
However, the Proposed Permit refers to the fact that it requires implementation of
a program, presumably based on the Permit and DAMP, which will meet the MEP
'To the extent that Staff would assert that the Proposed Permit and the DAMP meet MEP
and water quality standard provisions because these requirements are recited in certain
provisions of the Proposed Permit, this response is circular. The Proposed Permit appears
to require compliance with the applicable MEP and water quality standard requirements,
at least in significant part, through implementation of the DAMP. We contend the
DAMP is inadequate and the Proposed Permit's substantive provisions do not make up
the difference. Hence, stating that the Proposed Permit requires legal standards to be met
is not, in the first case, at all clear given the way the Proposed Permit works. Moreover,
such an answer does not explain how these standards will be met by the Permit or DAMP.
The Office of Administrative Law confronted just this issue in the above -cited decision
where it stated that "the restatement of what is required provides no evidence [that those
requirements have been met]." OAL Decision re Los Angeles RWQCB at 7.
Defend the Bay/NRDC Comments
October 18, 2001
Page 5
standard (Proposed Finding 36). It also strongly suggests that those control measures that
constitute compliance with the MEP standard and water quality standards are contained in
the DAMP see Proposed Finding 37, referring to implementation of control measures "in
accordance with the approved DAMP "). See also Proposed Permit at 16 [Section IV.3].
So, to the extent that Staff have interpreted our previous comments to suggest that we
believe that the DAMP's inadequacies, alone, render the program to be implemented
pursuant to the Proposed Permit inadequate, staff are correct —but this is not the entire
point. Rather, we also contend that the Proposed Permit itself does not fully correct the
DAMP's flaws nor does it, and the associated administrative record, support the Regional
Board in meeting administrative decision - making requirements. These requirements
include that the Regional Board support (with reasoned analysis and evidence in the
record) its findings and contentions that the Proposed Permit and DAMP will result in a
legally adequate program to control storm water —if this is, in fact, the view of Staff and
the Board —and that these documents have been designed to be consistent with MEP and
receiving water limitation language.2
As previously stated in our July comments, the shortfalls of the Proposed Permit
and DAMP become especially obvious when the discrepancies between the Proposed
Permit and the DAMP (and its appendices), on one hand, and programs in comparable
Z The State Water Resources Control Board has discussed the legal standard that applies
here, and it is similar to that which governs administrative agency actions generally.
Stinnes- Western Chemical Corporation, State Water Resources Control Board Order
( "WQ ") No. 86 -16 (1986). The State Board has defined this standard as equivalent to the
standard a reviewing court would apply under California Code of Civil Procedure Section
1094.5. Id. Abuse of discretion is established if "the respondent has not proceeded in
the manner required by law, the order or decision is not supported by the findings, or the
findings are not supported by the evidence." C.C.P. § 1094.5(b); see also In the Matter of
the Petition of Exxon, WQ Order 85 -7 at 15 (Aug. 22, 1985). "Where it is claimed that
the findings are not supported by the evidence.... abuse of discretion is established if the
court determines that the findings are not supported by the weight of the evidence."
C.C.P. § 1094.5(c). Further, an administrative order or decision of any kind must be
accompanied by administrative findings that allow the court reviewing the order or
decision to "bridge the analytic gap between the raw evidence and ultimate decision or
order." Topanga Association for a Scenic Community v. County of Los Angeles, 11 Cal.
3d 506, 515, 522 (1974). This requirement "serves to conduce the administrative body to
draw legally relevant sub - conclusions supportive of its ultimate decision ... to facilitate
orderly analysis and minimize the likelihood that the agency will randomly leap from
evidence to conclusions." Id. at 516. "Absent such roadsigns, a reviewing court would
be forced into unguided and resource - consuming explorations; it would have to grope
through the record to determine whether some combination of credible evidentiary items
which supported some line of factual and legal conclusions supported the ultimate order
or decision of the agency." Id. at n.15.
Defend the Bay /NR.DC Comments
October 18, 2001
Page 6
jurisdictions, on the other, are considered. As a matter of fact, a comparison of the Permit
and the DAMP's substantive provisions to other Southern California permits and
management plans demonstrates that the proposed Orange County storm water program,
as a whole, is consistently inferior. Over the last three months, NRDC obtained and
compared the relevant permits and related storm water management program documents
from Los Angeles (proposed NPDES Permit No. CAS004001, Regional Board Order No.
01 -XXX) ( "proposed Los Angeles County Permit "), Orange County, and San Diego
( NPDES Permit No. CAS0108758, Regional Board Order No. 200 1 -0 1) ( "San Diego
County Permit "). These documents include proposed permits, currently effective permits,
proposed management programs, currently effective management programs, and, where
applicable, baseline management programs (g.e. the April 1993 Orange County DAMP)
and all available appendices to such programs. In addition, we participated in two
conference calls with Regional Board staff and representatives of the County of Orange in
order to discuss the proposed Orange County program in some detail and respond to
questions from both parties.
Our review, key elements of which are set forth below, shows that the proposed
Orange County program fails to include numerous important program elements that are
features of municipal stormwater management programs to the north and south of Orange
County. These differences cannot be explained by any substantive factual difference
between the jurisdictions, all of which are major, urban regions in coastal Southern
California. Nor can a differing legal framework explain these shortcomings, as that
framework is identical .3 Rather, the failure of the proposed Orange County program —
across not one or two but a broad range of program elements —to meet an established
standard of practice shows that the Orange County program has not been designed to
meet the Maximum Extent Practicable standard of the Clean Water Act. At the most
basic level, the implementation of specific program elements in neighboring jurisdictions
demonstrates that such elements are presumptively practicable; these elements must,
accordingly, be implemented in Orange County pursuant to the MEP standard.
Important inadequacies of the proposed Orange County program include, but are not
limited to, the following significant issues:
• Public Outreach and Education. The overall goals of the program are vaguely
described and weak: the proposed permit requires only that unspecified elements
of a (non - specific) consultant report be implemented. (Proposed Permit at 29,
section XIH, paragraph 1.) This report is so general in tone and with respect to
individual recommendations that it is impossible to conclude that it meets the
appropriate MEP standard, even if fully implemented. See Final Report:
' In any case, if the Board believes that there are substantive differences between the
jurisdictions that legally and factually justify the discrepancies in the proposed Orange
County program, it has failed to identify them, as it must.
Defend the Bay /NRDC Comments
October 18, 2001
Page 7
Recommendations for Expanding the Orange County Stormwater Program's
Public and Business Outreach Program (PS Enterprises; September, 1999).
Making matters worse, the proposed permit and the DAMP (1993 version and as
updated, including appendices thereto) simply defer generally to this document,
providing little independent definition about what constitutes a suite of minimally
adequate program elements.
Where specific requirements are provided, they compare unfavorably with those
set by other Regional Boards. Consider these examples: the Proposed Permit
would require 10 million annual impressions and certain guidance materials; by
contrast, the proposed Los Angeles County Permit would require 35 million
annual impressions (more than three times the Orange County program). Further,
the proposed Los Angeles County Permit specifies the range of educational
activities that must be included in the program; directs the permittees to
implement a specific, ascertainable program; directs the permittees to educate a
minimum of 50% of all school children (K -12) every two years; requires detailed
pollutant - specific plans for constituents of concern; and also requires a plan to
assure that the plan is "demonstrably effective" in changing behavior. Compare
Proposed Permit at id.; DAMP (1993 and 2000) at Section 6.0; DAMP Appendix
L; Final Report: Recommendations for Expanding the Orange County
Stormwater Program's Public and Business Outreach Program (PS Enterprises;
September, 1999) with Proposed Los Angeles County Permit (NPDES No.
CAS004001) at Part 4, Section B (pages 27 -32). Similarly, the San Diego County
Permit, while only a second- generation permit, includes specific requirements
regarding target communities and minimum information. San Diego County
Permit at 34 -36.
Construction Activities. Section XV ( "Municipal Construction
Projects /Activities ") and Section VIII ( "Municipal Inspections of Construction
Sites ") of the Proposed Permit deal directly with construction activities, as does
DAMP Appendix G and Appendix H. These sections fail to affirmatively require
that all sediment and other pollutants be retained on site, favoring less
comprehensive proscriptions; they further fail to require that SWPPs be reviewed
and implemented for sites between 1 and 5 acres. See DAMP (2000) at Section
8.0 (discussing Green Book); Appendix G, Section 4.0 ( "Construction Regulatory
Requirements ") ( "[d]ischarges of material other than stormwater are allowed only
when necessary for performance and completion of construction practices [and
when they do not violate water quality standards] "); Appendix H at 3
( "[o]perations shall be scheduled to minimize or avoid muddying and silting of. .
. channels, drains, and waters ") and 4 (SWPPs for projects greater than five acres).
By contrast, the proposed Los Angeles County permit requires that "[s]ediments
generated on the project site shall be retained using adequate treatment control or
structural controls." Proposed Los Angeles County Permit at 48. It further
requires that "[c]onstruction - related materials, wastes, spills, or residues shall be
Defend the Bay /NR.DC Comments
October 18, 2001
Page 8
retained at the project site to avoid discharge to streets, drainage facilities,
receiving waters, or adjacent properties by wind or runoff." Id. Moreover, for
projects as small as one acre, the proposed Los Angeles County Permit requires
submittal of a SWPP prior to the issuance of a grading permit. Id. at 49.
• New and Re- Development. While the latest draft of the Proposed Permit
includes a requirement for a SUSMP program, which is a positive step forward,
there are still three notable inadequacies in this aspect of the program. First, the
Proposed Permit makes the SUSMP, with numeric sizing criteria, applicable only
to development projects for which tract maps have not been approved by
September 26, 2001. Proposed Permit at 28, note 4. This limitation is arbitrary
and, because of the time between tract approval and construction, may result in
the numeric sizing criteria applying to very few projects before submittal of a
model WQMP in July 2003. In this way, the Proposed Permit takes with one
hand what it gives with the other.° Second, the development program in the
Proposed Permit does not contain an express requirement to assure that flow
regimes are maintained at pre - development levels after development is complete.
This is in contrast to the proposed Los Angeles County Permit, which requires
permittees to "control post - development peak storm water runoff discharge rates,
velocities, and duration (peak flow control) in natural drainage systems (i.e.,
mimic pre - development hydrology) to prevent accelerated stream erosion and to
protect stream habitat." Proposed Los Angeles County Permit at 40. The current
San Diego County Permit also contains a similar provision. San Diego County
Permit at 17 [Section F. Lb.(2)]. Third, the Proposed Permit's SUSMP program is
not as broad in scope as that contained in the San Diego County Permit, including
with respect to the application of the program to roadways. See San Diego
County Permit at 18 [Section F. Lb.(2)(a)(ix)].
• Illegal & Illicit Connections. The Proposed Permit does not contain any
overarching performance standard directing specific, affirmative actions to
eliminate illegal and illicit connections. Instead, the Proposed Permit requires the
permittees to continue to prohibit these connections and activities "through their
ordinances, inspections, and monitoring programs." It also specifies a time frame
in which investigation and remedial action must occur once a problem activity or
connection is discovered. Proposed Permit at 19 [Section VII(1) -(4)]. Moreover,
neither the Proposed Permit nor the 1993 DAMP, or the recent update (including
Appendix J thereto), contains any express schedule of targeted actions, such as
Notably, the Regional Board confronted an analogous issue with respect to a new
construction permit earlier this year; at that time, it rejected the "tract map trigger"
because it would have opened a large loophole. A trigger related to the actual start of
construction would be more appropriate, as is the case in the San Diego County Permit.
San Diego County Permit at 15 [Section F. Lb.(2)].
Defend the Bay /NR.DC Comments
October 18, 2001
Page 9
inspections. Instead, these documents refer to previous requirements to perform
reconnaissance on the system and, other than a reference to inspections being
conducted during routine maintenance, include only indeterminate references that
fail to illuminate the unrlerlving programmatic requirements. See, e.g., DAMP
(2000) at 59 [Section 10.4.1 ( "[c]ommencing in 99/00 the Permittees report on the
number of illicit connections found within their jurisdiction, the type of
connection and the resulting actions that were taken to permit or remove it")]; see
also DAMP Appendix J at 1 [Section 2.1 ].5 Moreover, the Proposed Permit does
not contain any program to catalogue (and update on an ongoing basis) both
permitted and non - permitted connections to the MS4 system, a step that is a
predicate to effective management of the system and interdiction of illicit or
illegal activities. By contrast, the proposed Los Angeles Permit requires
permittees to "eliminate all illicit and illegal discharges ...." Proposed Los
Angeles Permit at 60. Further, that Permit sets forth a specific schedule of
inspections and also requires that a full database be maintained that identifies all
permitted and un- permitted connections to the storm drain system. Id. at 60 -62.
The San Diego Permit similarly contains affirmative requirements to "actively
seek and eliminate illicit discharges and connections" and "eliminate all detected
illicit discharges ... immediately." San Diego County Permit at 36 [Section F.5].
• Municipal Facilities & Activities. The Proposed Permit attempts to regulate
municipal activities through an idiosyncratic approach in which permittees appear
to perform self - audits. This program is totally inadequate. First, the standard of
performance should reiterate that permittees must prevent facilities from causing
or contributing to a nuisance or exceedence of a water quality standard, as this is
the applicable regulatory requirement as set forth in Section IV of the Proposed
Permit. Moreover, the discussion of the Public Agency Program in the DAMP
and its relevant appendices discloses only the most non - specific terms. To cite a
few representative examples: (1) with respect to litter control, the DAMP notes
that authority to control litter [DAMP at Section 5.3.1 ] exists and that reports are
made; (2) with respect to drainage facilities, inspections and cleaning occurs on an
"as needed basis" [DAMP at Section 5.3.3]; and (3) street sweeping programs are
said to be "maintained" [DAMP at Section 5.3.4]. Where the Proposed Permit is
itself more specific, as it is with respect to drain inlet cleaning, the frequencies
required pale in comparison to comparable jurisdictions. By contrast, the
proposed Los Angeles County Permit contains a substantially more detailed set of
requirements, including SWPPs for maintenance bases; baseline structural control
requirements for maintenance bases; prioritized schedules for drain inlet cleaning
(requiring some drains to be cleaned as frequently as monthly during the rainy
season and all drains at least annually); updated stenciling on catch basins within
5 In this connection, the water quality monitoring program does not contain sufficiently
frequent, localized monitoring protocols that could substitute for an affirmative
inspection and reconnaissance program.
Defend the Bay /NRDC Comments
October 18, 2001
Page 10
180 days of inspection; specified (as frequent as bimonthly) street sweeping; and
municipal parking lot cleaning protocols. Proposed Los Angeles County Permit at
52 -59.
Moreover, it is notable that the Environmental Performance Report reveals
minimal activity by the permittees and a surprising failure to address basic
problems that should have been resolved years ago. See Report of Waste
Discharge, Appendix 3.2, `Environmental Performance Report— Significant
Issues Action Plan & Updates (discussing construction of berms; materials storage
roofs; and clarifiers). Moreover, while most permittees report only a few
"significant" water quality issues, many of these problems have not been resolved.
A number of cities, furthermore, have failed to report anything at all. Id. at Report
of City of Costa Mesa; Report of City of Fullerton; Report of City of Fountain
Valley.
IV. Conclusion
While we appreciate the efforts of Staff in the latest draft of the Proposed Permit
to improve its effectiveness, it should be clear that the Proposed Permit and the DAMP
do not constitute an adequate program under Section 402(p) of the Clean Water Act. Just
as important, the Regional Board certainly has not met its obligation to respond to
comments; justify with reasoned analysis and facts in the record its findings; and show
that the Permit, if issued, would comply both with the MEP standard and receiving water
provisions.
The appropriate course now is to fix the DAMP and Proposed Permit by
undertaking a reasoned analysis that injects both with more robust requirements that meet
these standards. As things currently stand, however, at minimum the Proposed Permit
must be clarified to state that the DAMP constitutes a baseline program, but not one that
comports with MEP or the requirement that discharges not cause or contribute to an
exceedence of water quality standards. In this vein, we believe that Staff should:
➢ Delete references to the DAMP as "approved;"
➢ Add language to the Proposed Permit (based on similar language in the
proposed Los Angeles County Permit) as follows:
"General Requirements:
In addition to those specific controls and actions required by (1) the
terms of this Order and (2) the DAMP, each permittee shall
implement controls as are necessary to reduce the discharge of
pollutants in storm water to the maximum extent practicable and so
as to satisfy the other requirements of this Order."
Defend the Bay /NRDC Comments
October 18, 2001
Page 11
➢ Make textual conforming changes, consistent with this provision.
If you have any questions about our comments, please do not hesitate to contact me at
323 - 934 -6900.
Sincerely,
David S. Beckman
Senior Attorney
cc: Mr. Bob Caustin, Founding Director, Defend the Bay