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HomeMy WebLinkAbout28 - Stormwater & Urban Runoff RegulationsITEM 28 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; City's Letter RECOMMENDED Authorize the Mayor to issue the attached letter to the California Regional Water ACTION: Quality Control Board, Santa Ana Region, regarding its Order No. 01 -20 (5 -Year Municipal NPDES Permit for Stormwater Runoff BACKGROUND: Please see previous staff reports on this matter (November 27, 2001 Study Session and November 13, 2001 Regular Meeting). This Agenda Item asks the Council's authorization to submit a letter to the Regional Board in advance of the Board's December 19, 2001 hearing at which we anticipate that the Board will adopt the proposed Order No. 01 -20. The proposed letter: • Discusses the Council's concern over the enforcement of certain prohibited discharges, like commercial hosedowns. • Supports the Order's overall scope and emphasis and its education, inspection, and planning provisions. • Asks the Board to consider more stringent street sweeping and drainage facility provisions • Asks the Board to require structural BMPs for all new development and significant redevelopment of a certain size and scope. As the Council reviews the letter, it may wish to add or delete provisions based on public comment or the Council's previous discussion of this important issue. ATTACHMENT: Draft letter from the Mayor to the Regional Board. CITY OF NEWPORT BEACH December 11, 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: (909) 781 -6288 RE: Comments on Tentative Order #01 -20, NPDES No CAS618030 (November 5, 2001 Version) Dear Mr. Thibeault: This letter represents the City of Newport Beach's comments on the November 5, 2001 version of Tentative Order ( "Order') #01 -20. Our City Council discussed the Order at three different meetings in November and December. We apologize for missing the November 19, 2001 formal comment deadline but trust that our comments provided within this letter will reach your Board in time for the December 19, 2001 hearing in Santa Ana. 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 on issues within the Order: 1- Legal Authority/Enforcement (Section VI). As you are aware, one of the most significant challenges in the Order (and, arguably, under the current permit) is a municipality's ability to regulate and prohibit the discharges described in Section VI (Subsection 6). For example, we know that many of Newport Beach's businesses today "wash dawn' their facilities, including sidewalks, patios, and dining areas. Doing so keeps a clean and sanitary environment around the business, but it also adds contaminants to the storm drain system and the receiving waters. The Order asks us to, by July 1, 2003, "review the ordinances establishing legal authority to determine the effectiveness of these ordinances in prohibiting these types of discharges to the MS4s.... (the permittees may propose appropriate control measures in lieu of prohibiting these discharges, where the permittees are responsible for ensuring that discharges adequately maintain these control measures)." As we read that subsection, we understand it to direct cities to either Letter to Mr. Thibeault December 11, 2001 Page 2 prohibit the discharge or to actively ensure that dischargers use all appropriate best management practices (BMPs) before causing the discharge. For example, under the Order, a restaurant owner may wash down her patio area without diverting the runoff into the MS4, but she must have swept up all debris, scraped up gum, and effectively removed all pollutants from the wash down area before turning on the hose. In anticipation of our City's enforcement of these standards, we urge the Board and Board staff to work with us - and every co- permittee - via workshops and other participatory meetings to provide us with appropriate BMP and enforcement guidance. We believe that the issue of direct prohibition of a discharge versus the implementation of BMPs in lieu of prohibitions will be among the most challenging aspects of this Order. 2 -- Municipal Inspections of Construction Sites (Section VIII), Municipal Inspections of Commercial Facilities (Section IX), Municipal Inspections of Commercial Facilities (Section X). We believe that the language in the Tentative Order regarding these three types of inspections is appropriate. We look forward to working with the Board and its staff to fully coordinate this important (yet costly) section of the Proposed Order and believe that it will be an integral part of controlling runoff and contaminated runoff at its source. 3 - New Development, Including Significant Re- Development (Section XII). A - General Requirements. The Tentative Order's requirements to include runoff - related issues within our planning processes, General Plan, and related documents is fully supported by the City of Newport Beach. B - WQMPs for Urban Runoff. The City of Newport Beach believes that the Regional Board should require structural BMPs of all new development and significant redevelopment to meet the sizing criteria shown in Section XIII (b)(3) upon adoption of the Tentative Order rather than waiting until October 1, 2003 or later. We recognize the controversial nature of structural BMPs, but we believe that, if managed correctly, they are the most appropriate mechanism to reduce runoff - related pollutants to the maximum extent practicable (MEP). 4 - Public Education and Outreach (Section XIII). Newport Beach looks forward to working with Board staff, the lead permittee and our co- permittees in providing this appropriate level of education to the residents, businesses, and visitors in our region. 5 - Municipal Facilities/Activities (Section XIV). Model Maintenance Procedures. While we recognize that the Water Code prohibits the Regional Board from directing specific actions to remedy water quality problems, we urge the Board to: (a) Find that weekly street sweeping with parking enforcement is the minimum acceptable standard of street sweeping for all jurisdictions within the Order's area; and Letter to Mr. Thibeault Deceinber 11, 2001 Page 3 (b) Be diligent in its review of the "more aggressive program for cleaning out drainage facilities, including catch basins" set for after July 1, 2004. Proper (pre -storm season) and routine maintenance of catch basins is an ideal and cost - effective way to reduce the amount of trash, debris, and other contaminants sent into receiving waters by fall storms. Thank you for this opportunity to comment on the Order. Again, we support the overall scope and emphasis of the Order and thank the Board and Board staff for its efforts to improve and protect water quality in the Santa Ana Region. Please direct any questions you may have to our staff at 949 -644 -3002. Sincerely, NAME Mayor of Newport Beach cc: Members of the Newport Beach City Council Mr. Homer L. Bludau, City Manager Dave Kiff, Assistant City Manager Ms. Karen Ashby, Orange County Public Facilities and Resources Division ITEM 3 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 Discuss proposed Permit, suggest Council response in advance of December ACTION: 19, 2001, Board hearing date. WHAT'S NEW In a conversation with Santa Ana Regional Board Executive Officer Jerry SINCE 11 -13 ?: Thibeault, Thibeault told me that it was unlikely that the Regional Board would defer its planned December 19, 2001 action to adopt the proposed Permit until early 2002. The City missed the November 19, 2001 official comment deadline for the November 5, 2001 version of the Permit, but we can still submit any formal correspondence to the Board between now and December 19, 2001. On November 16, 2001, the State Water Resources Control Board heard an appeal of the San Diego Regions Permit. According to news services, the State Board upheld most of the San Diego Permit, including requirements for on -site treatment and more stringent prohibitions on commercial and residential runoff (see article in Appendix C). As previously discussed, the San Diego Permit is generally viewed as being more directive than the Santa Ana Permit. KEY ISSUES FOR Judging from the Council's discussion of certain provisions of the proposed THE COUNCIL'S Santa Ana Permit, the Council will likely want to talk more about the following STUDY SESSION: issues: Prohibited Discharges • Does the proposed Permit expressly prohibit discharges from commercial hosedowns of sidewalks? If so, what should the City�s position be? Should the City help businesses comply with these new regulations? If so, how? • Is the proposed Permit's exemptions of some residential discharges (car washing, excessive irrigation, hosing down of driveways and yards) appropriate? Should the City adopt requirements that are more stringent than the proposed Permit? On -Site Treatment (aka SUSMPs) • The proposed Permit, unlike its neighboring permits in South Orange County, San Diego, and Los Angeles, does not expressly require on -site treatment of runoff from "first flush" rain events when a developer submits an application for new development or significant redevelopment. Should NPDES [km November 27, 2001 Page 2 the City ask the Santa Ana Board to adopt a SUSMP requirement for our Regions Permit? Inspections a The proposed Permit sets up new obligations on cities to provide routine inspections of certain construction, commercial, and industrial sites. Some believe the Permit's requirements here are too lax; others say they're too stringent. What should the City s position be as to the frequency of inspection and as to which construction, commercial, and industrial sites are "high priority" threats to water quality? APPENDICES: Appendix A: Relevant Portions of Proposed Permit (with sections of NBMC) Appendix B: Staff Report from November 13, 2001 Appendix C: Copley News Service article on State Board's recent actions NPDES Item November 27, 2001 Page 3 Appendix A Specific Language of Interest in the Proposed Santa Ana Permit (with sections from the NBMC) III. DISCHARGE LIMITATIONS/PROHIBMONS 1. In accordance with the requirements of 40 CFR 122.26(d)(2)(i)(B) and 40 CFR 122.26(d)(2)(i)(F), the permittees shall prohibit illicit /illegal discharges (non -storm water) from entering into the municipal separate storm sewer systems. 2. The discharge of storm water from the MS4s to waters of the United States containing pollutants that have not been reduced to the maximum extent practicable is prohibited. 3. The permittees shall effectively prohibit the discharge of non -storm water into the M54s;. unless such discharges are authorized by a separate NPDES permit or as otherwise specified..iir.this,gcovis OP. Certain discharges identified below need not be prohibited by the perniittees. If however, any, of:,the discharges are identified by the permittees or the Executive Officer. as a significant source ofpoIIutanis coverage under the Regional Board's De Minimus permit maybe required. a. Discharges composed entirely of storm water, b. Potable water line flushing and other potable water sources, c. Air conditioning condensate, d. Landscape irrigation, lawn garden watering and other irrigation waters, e. Passive foundation drains, f. Passive footing drains, g. Water from crawl space pumps, h. Dechlorinated swimming pool discharges, i. Non - commercial vehicle washing, j. Diverted stream flows, k. Rising ground waters and natural springs, 1. Ground water infiltration as defined in 40 CFR 35.2005 (20) and uncontaminated pumped groundwater, m. Flows from riparian habitats and wetlands, n. Emergency fire fighting flows (i.e., flows necessary for the protection of life and property) do not require BMWs and need not be prohibited. However, where possible, when not interfering with health and safety issues, BMPs should be considered (also see Section XDC, Provision 4); o. Waters not otherwise containing wastes as defined in California Water Code Section 13050 (d), and p. Other types of discharges identified and recommended by the permittees and approved by the Regional Board. Exempted today in NBMC. Exempted today in NBMC. Exempted today in NBMC. Exempted today in NBMC. Exempted today in NBMC. Exempted today in NBMC. Exempted today in NBMC. Exempted today in NBMC. NBMC exempts noncommercial vehicle and boat washing Exempted today in NBMC. Exempted today in NBMC. NBMC exempts de minimis groundwater infiltration to the Storm Water Drainage System (from leaks in joints or connections or cracks in water drainage pipes or conveyance systems); Exempted today in NBMC NBMC exempts flows from fire fighting activities Exempted today in NBMC NOTE: NBMC also contains exemptions for: — Discharges from property for which best management practices set forth in the development project guidance are being implemented and followed and discharges forwhich the discharger has reduced to the extent feasible the amount of pollutants in such discharge; — building roof runoff, agricultural irrigation water runoff; and noncommercial animal washing; NPDES Item Nooember 27, 2001 Page 4 —discharges of reclaimed water generated by a lawfully permitted water. treatment facility; public street wash waters when related to cleaning and maintenance by, or on behalf of the City; The Executive Officer may add categories of non -storm water discharges that are not significant sources of pollutants or remove categories of non -storm water discharges listed above based upon a finding that the discharges are a significant source of pollutants. 4. For purposes of this order, a discharge may include storm water or other types of discharges, identified in Item 3, above. 5. Non -storm water discharges from public agency activities into waters of the U.S. are prohibited unless the non -storm water discharges are permitted by an NPDES permit or are included in Item 3., above. If permitting or immediate elimination of the non -storm water discharges is impractical, the permittees shall include in the Environmental Performance Report, a proposed plan to eliminate the non -storm water discharges in a timely manner. 6. The permittees shall reduce the discharge of pollutants, including trash and debris, from the storm water conveyance systems to the maximum extent practicable. 7. Discharges from the MS4s shall be in compliance with the applicable discharge prohibitions contained in Chapter 5 of the Basin Plan. VI. LEGAL AUTHORMIENFORCEMENT 1. The permittees shall maintain and enforce adequate legal authority to control the contribution of pollutants to the MS4 by storm water discharges associated with industrial activities. 2. The permittees shall take appropriate enforcement actions against any violators of their Water Quality Ordinance, in accordance with the adopted /established guidelines and procedures. All enforcement actions shall be consistent with the Enforcement Consistency Guide. 3. Permitte& ordinances or other local regulatory mechanisms shall include sanctions to ensure compliance. Sanctions shall include but are not limited to: monetary penalties, non - monetary penalties, bonding requirements, and /or permit denials /revocations /stays for non - compliance. If the permittees' current ordinances do not have a provision for civil or criminal penalties for violations of their water quality ordinances, the permittees shall enact such ordinances by November 15, 2003. 4. By November 15, 2003, each permittee shall submit a statement, signed by legal counsel, that the permittee has obtained all necessary legal authority to comply with this Order through adoption of ordinances and /or municipal code modifications. 5. The permittees shall continue to provide notification to Regional Board staff regarding storm water related information gathered during site inspections of industrial and construction sites regulated by the Statewide General Storm Water Permits and at sites that should be regulated under the State's General Permits. The notification should include any observed violations of the General Permits, prior history of violations, any enforcement actions taken by the permittee, and any other relevant information. 6. By July 1, 2003, the permittees shall review the ordinances establishing legal authority to determine the effectiveness of these ordinances in prohibiting the following types of discharges to the MS4s and include in the report identified in Item 4, above (the permittees may propose appropriate control measures in lieu of prohibiting these discharges, where the permittees are responsible for ensuring that dischargers adequately maintain those control measures): a. Sewage, where a co-permittee operates the sewage collection system; . b. Wash water resulting from the hosing or cleaning of gas stations, auto repair garages,:and other types of automobile service stations; NPDES Item No mber 27, 2001 Page 5 c. Discharges resulting from the cleaning, repair, or maintenance of any type of equipment, machinery, or facility, including motor vehicles, concrete mixing equipment portable toilet servicing, etc.; d. Wash water from mobile auto detailing and washing, steam and pressure cIeaning,: carpet cleaning, and other such mobile commercial and industrial activities; e. Water from cleaning of municipal, industrial, and commercial sites, including parking. Iots, streets, sidewalks, driveways, patios, plazas, work yards and outdoor eating or drinking areas;. etc.; f. Runoff from material storage areas or uncovered receptacles that contain chemicals, fuels, grease, oil, or other hazardous materials; g. Discharges of runoff from the washing of toxic materials from paved or unpaved: areas ;. h. Discharges of pool or fountain water containing chlorine, biocides, or other chemicals; poormer backwash containing debris and chlorine; i. Pet waste, yard waste, litter, debris, sediment, etc.; j. Restaurant or food processing facility wastes such as grease, floor mat and trash bin wash water, food waste, etc. XII. NEW DEVELOPMENT (INCLUDING SIGNIFICANT RE- DEVELOPMENT) B. WATER QUALITY MANAGEMENT PLAN (WQMP) FOR URBAN RUNOFF (FOR NEW DEVELOPMENT (SIGNIFICANT REDEVELOPMENT): 1. By March 1, 2003, the permittees shall review their existing BMPs for New Developments (Appendix G of the DAMP) and submit for review and approval by the Executive Officer, a revised WQMP for urban runoff from new developments /significant re- developments for the type of projects listed below: a. All significant re- development projects, where significant re- development is defined as the addition of 5,000 or more square feet of impervious surface on an already developed site. This includes additional buildings and /or structures, extension of existing footprint of a building, construction of parking lots, etc. b. Home subdivisions of 10 units or more. This includes single family residences, multi- family residences, condominiums, apartments, etc. c. Commercial 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 industrial facilities. d. Automotive repair shops (with SIC codes 5013, 5014, 5541, 7532-7534,7536-7539). e. Restaurants where the land area of development is 5,000 square feet or more. f. All hillside developments on 10,000 square feet or more which are located on areas with known erosive soil conditions or where the natural slope is twenty-five percent or more. g. Developments of 2,500 square feet of impervious surface or more adjacent to (within 200 feet) or discharging directly into environmentally sensitive areas such as areas designated in the Ocean Plan as areas of special biological significance or waterbodies listed on the CWA Section 303(d) list of impaired waters. NPDES Item No mber 27, 200] Page 6 h. Parking lots of 5,000 square feet or more exposed to storm water. Parking lot is defined as a land area or facility for the temporary storage of motor vehicles. 2. The permittees are encouraged to include in the WQMP the development and implementation of regional and /or watershed management programs that address runoff from new development and significant re- development The WQMP shall include BMPs for source control, pollution prevention, and /or structural treatment BMPs. For all structural treatment controls, the WQMP shall identify the responsible party for maintenance of the treatment system, and a funding source or sources for its operation and maintenance. The goal of the WQMP is to develop and implement practicable programs and policies to minimize the effects of urbanization on site hydrology, urban runoff flow rates or velocities and pollutant loads. This goal may be achieved through watershed -based structural treatment controls, in combination with site - specific BMPs. The WQMP shall reflect consideration of the following goals, which may be addressed through on- site -and /or watershed -based BMPs. a. The pollutants in post development runoff shall be reduced using controls that utilize best available technology (BAT) and best conventional tecnology (BCl). b. The discharge of any listed pollutant to an impaired waterbody on the 303(d) list shall not cause an exceedence of receiving water quality objectives. 3. During the time that the WQMP is being revised, the permittees shall implement their existing requirements for new development (Appendix G of the DAMP). Y the' EExecutivei Of ice `:d'oes .i o approve the revised WQMP by October 1, 2003, as meeting the 'goals proposed in; XII B 2 above aiui providing an equivalent or superior degree of treatment as the sized criteria outlined ux XII Bt3:.beloN structural BMPs shall be required for all new development and significant redevelopment!. Minimum structural BMPs must either be sized to comply with one of the following numeric sizing criteria or be deemed by the Principal Permittee to provide equivalent or superior treatment, either on a site basis or a watershed basis: A. Volume Volume -based BMPs shall be designed to infiltrate, filter, or treat either: 1. The volume of runoff produced from a 24 -hour, 85th percentile storm event, as determined from the local historical rainfall record; or 2. The volume of annual runoff produced by the 85th percentile, 24 -hour rainfall event, determined as the maximized capture storm water volume for the area, from the formula recommended in Urban Runoff Quality Management, WEF Manual of Practice No. 23 /ASCE Manual of Practice No. 87 (1998) ; or 3. The volume of annual runoff based on unit basin storage volume, to achieve 80% or more volume treatment by the method recommended in California Stormwater Best Management Practices Handbook - Industrial /Commercial (1993); or 4. The volume of runoff, as determined from the local historical rainfall record, that achieves approximately the same reduction in pollutant loads and flows as achieved by mitigation of the 85th percentile, 24 -hour runoff event; OR A NODES Item No inber 27, 2001 Page 7 B. Flow Flow -based BMWs shall be designed to infiltrate, filter, or treat either: 1. The maximum flow rate of runoff produced from a rainfall intensity of 0.2 inch of rainfall per hour; or 2. The maximum flow rate of runoff produced by the 851h percentile hourly rainfall intensity, as determined from the local historical rainfall record, multiplied by a factor of two; or 3. The maximum flow rate of runoff, as determined from the local historical rainfall record, that achieves approximately the same reduction in pollutant loads and flows as achieved by mitigation of the 85th percentile hourly rainfall intensity multiplied by a factor of two. C. Groundwater Protection Any structural infiltration BMPs shall meet the following minimum requirements: 1. Use of structural infiltration treatment BMWs shall not cause or contribute to an exceedance of groundwater water quality objectives. 2. Source control and pollution prevention control BMPs shall be implemented to protect groundwater quality. 3. Structural infiltration treatment BMPs shall not cause a or pollution as defined in Water Code Section 13050. 4. The permittees may propose any equivalent sizing criteria for treatment BMPs or other controls that will achieve greater or substantially similar pollution control benefits. In the absence of approved equivalent sizing criteria, the permittees shall implement the above stated sizing criteria. 5. If a particular BMP is not technically feasible, other BMPs should be implemented to achieve the same level of compliance or if the cost of BMP implementation greatly outweighs the pollution control benefits, the permittees may grant a waiver of the numeric sizing criteria. All waivers, along with waiver justification documentation must be reported to the Regional Board in writing within 30 days. The permittees may propose to establish an urban runoff fund to be used for urban water quality improvement projects within the same watershed that is funded by contributions from developers granted waivers. If it is determined by the Regional Board that waivers are being inappropriately granted, this Order may be reopened to modify these waiver conditions. 6. The obligation to install minimum structural BMPs at new development is met if, for a common scheme of development, BMPs are constructed with the requisite capacity to serve the entire common scheme, even if cerain phases of the common scheme may not have BMP capacity located on that phase in accordance with the requirements specified above. NPDES Item November 27, 2001 Page 8 What the Newport Beach Municipal Code says: 14.36.030 Illicit Connections and Prohibited Discharges. A. No person shall: I Construct, maintain, operate and /or utilize any illicit connection; 2: Cause, allow or facilitate any prohibited discharge; 3. Act, cause, permit or suffer any agent, employee or independent contractor, to construct, maintain, operate or utilize any illicit connection, or cause, allow or facilitate any prohibited discharge. 14.36.020 Definitions. "Prohibited discharge" means any discharge which contains any pollutant, from public or private property to (1) the Storm Water Drainage System; (2) any upstream flow, which is tributary to the Storm Water Drainage System; (3) any groundwater, river, stream, creek, wash or dry weather arroyo, wetlands area, marsh, coastal slough, or (4) any coastal harbor, bay, or the Pacific Ocean. The term prohibited discharge shall not include discharges allowable under the discharge exception. "Pollutant" means any liquid, solid or semi -solid substances, or combination thereof, including and not limited to: 1. Artificial materials (such as floatable plastics, wood products or metal shavings); 2. Household waste (such as trash, paper and plastics; cleaning chemicals; yard wastes; animal fecal materials; used oil and fluids from vehicles, lawn mowers and other common household equipment); 3. Metals and nonmetals, including compounds of metals and nonmetals, (such as cadmium, lead, zinc, copper, silver, nickel, chromium, cyanide, phosphorus and arsenic), with characteristics which cause an adverse effect on living organisms; 4. Petroleum and related hydrocarbons (such as fuels, lubricants, surfactants, waste oils, solvents, coolants and grease); 5. Animal wastes (such as discharge from confinement facilities, kennels, pens and recreational facilities, including stables, show facilities or polo fields); 6. Substances having a pH less than 6.5 or greater than 8.6, or unusual coloration, turbidity or odor; 7. Waste materials and wastewater generated on construction sites and by construction activities (such as painting and staining; use of sealants and glues; use of lime; use of wood preservatives and solvents; disturbance of asbestos fibers, paint flakes or stucco fragments; application of oils, lubricants, hydraulic, radiator or battery fluids; construction equipment washing; concrete pouring and cleanup; use of concrete detergents; steam cleaning or sand blasting; use of chemical degreasing or diluting agents; and use of super chlorinated water for potable water line flushing); 8. Materials causing an increase in biochemical oxygen demand, chemical oxygen demand or total organic carbon; 9. Materials which contain base /neutral or add extractable organic compounds; 10. Those pollutants defined in Section 1362(6) of the Federal Clean Water Act; and 11. Any other constituent or material, including but not limited to pesticides, herbicides, fertilizers, fecal colfform, fecal streptococcus or enterococcus, or eroded soils, sediment and particulate materials, in quantities that will interfere with or adversely affect the beneficial uses of the receiving waters, flora or fauna of the State. NPDES Item November 27, 2001 Page 9 Appendix C State backs plan for more strict regulations on storm -drain runoff By Michael Gardner COPLEY NEWS SERVICE November 16, 2001 SACRAMENTO -- State water - quality regulators yesterday upheld a sweeping plan to control urban runoff in San Diego County that cracks down on builders, gardeners and motorists. The unanimous decision by the Water Resources Control Board was a blow to the building industry and some cities that had dispatched teams of lawyers to fight the new rules. In a minor concession to opponents, the water board agreed to exempt, at least initially, new gas stations from the tougher standards. Once the plan is fully implemented next year, cities and the county must impose strict measures to stem the tide of pollutants funneled by storm drains to coastal waters. For builders, that means designing new subdivisions to minimize runoff, such as limiting pavement and concrete surfaces. They also may be required to install traps and filters on storm drains. Larger developments could be forced to provide costly treatment centers or holding ponds. The new controls will touch every facet of life in San Diego County. Puttering in the garden? Plan on reducing fertilizers and pesticides. Does the clunker need a new radiator? Expect to be asked to patch the leak and clean up the coolant. Washing the car? Dump the bucket inside rather than outside. Draining the pool? You no longer will be allowed to pump chlorine- saturated water down street gutters. "It's bringing the Clean Water Act right to the front door," said Paul Singarella, an attorney representing homeowner associations statewide. City and county officials say the new rules are more likely to result in an aggressive public awareness campaign, not a neighborhood storm -water police force. In return, the coastal economy will be protected along with the health of the public and the environment, water - quality regulators said. Alarmed at mounting water pollution and beach closures, the San Diego Regional Water Quality Control Board in February adopted a comprehensive plan requiring the county, its 18 cities and the Port District to do a better job of controlling urban runoff. The San Diego Building Industry Association, later joined by several cities, homeowner groups and other construction interests, appealed to the state. Builders are unsure whether to pursue their case in court. David Mulliken, an attorney for the builders, said he was disappointed that the state board did not limit the regional board's enforcement powers. The San Diego plan allows water - quality regulators to block projects or fine developers for polluting -- even if they demonstrate good -faith attempts to prevent contaminants and debris from reaching storm drains. But Phil Hammer, an environmental scientist for the regional board, said existing policies allow regulators to defer punishment if the offending party is attempting to comply. For new gas stations, the state board merely said San Diego regulators need to refine their proposal. "We didn't say no. We said come back," said Art Baggett, chairman of the state board. Overall, "we've upheld 97 percent of what the regional board did," Baggett said. ITEM 17 TO. Members of the Newport Beach City Council FROM: Dave Kiff, Assistant City Manager SUBJECT. New Regulations on Stormwater and Urban Runoff: 0 0. � 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(d) 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. WDES ltnn November ]3, 200] Page 2 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 nation's 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." 1 NPDES fleet Non neber 13, 2001 Page 3 • 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 seiner 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. NPDES Ifem Navnnber 13, 2001 Page 4 Regional Board 8 (Santa Ana) May a r Regional Board 9 (San Diego) May NPDES Item November 13, 2001 Page 5 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 specify the design, location, type of construction, or particular manner in which compliance nmy be had with that requirement, order, or decree, and the person so ordered shall be permitted to comply with the order in any lawful manner." 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): NPDES Item Nmember 13, 2001 Page 6 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 daily 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 Ieast 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. a NPDES 1km November 13, 2001 Page 7 Haw should Newport Beach Respond? The Council should ask the Santa Ana Board measurable increases in knowledge is more meaningful than setting a "goal" of taryetine 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: I — 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 line 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. II - 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; NPDES Item Noveu+ber 13, 2001 Page 8 • 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. I 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. I 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 Ouality 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: I - Planning/CEQA 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 Tlu Newport Beach Marine Life Refiige ASBS NPDES Item November 13, 2001 Page 9 6. For significant increases in erosion of the project site or surrounding areas. II - 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. III - 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 Storntwater 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 l LA Permit both require SUSMPs immediately. Those who support a SUSMP NPDES Item Nommber 13, 2001 Page 10 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) doesri 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, 85th 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 adopting 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 TMDUs 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 contntercial 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. ]f NPDES Mein November 13,1001 Page 11 1 I - 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; NPDES Item November 73, 2007 Page 12 • 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. IN NPDES Item November 13, 2001 Page 13 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 changes 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 Nowmber I3, 200] Page 14 Conclusion and Staff Recommendation. I believe that Newport Beach, as a l 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) f� SIX em.7 e d f ELp $ ga EE ppX V a E lei m 3 C 4 n 6 h 4 n 6 B 3FF Di 8 y a r A ' 5 3 i V d a A 8 8 8 $ z z`s z 8 bb x x x x x x m � Z i a LL x 9S x x x x xx x x a $bus s $ m m eg =� $ 8E �v.n E n 5 E� c s IS ° g f O O a � 8p8, . E es =mm 3 38 iyAi cc S _C} i it $ S 5 S 1 2 2 � .ia 2 • ei $ABC' �� $ a e B A A E gg m V S O ° O oi f� SIX em.7 0 Esfrg e % � a V g S m a � � z x x x x x x x r = a c S m x $ a x x 2 51 _L c kag S`o °c ri Ko ogA° ` a Zv a n A MI s" [ `�•g $E A E s z z 0 m 6 ° ° E m _ yy G �c c 9 nH a 8 s asE d s A ,qZ x x x � y e b x F n x x H � aE E gp��i u° i a Ov n a n a 32 ij 3 m v � S a �w SU 6 6 i dYiz n N z �N S°�g•� 3°+pp2 `o x y i a A a 5 a SqJ � B O �m x x x x x x x x v2z11B 11;m Lm sf HE £ 22� ' € m9 S ?- °3 a 3 � EA j '6aaL _ gg ._,.x 3✓ai �� E g ui � �4 � € c f f � m I I I I I m 6 ° ° m _ yy G �c c 9 nH a 8 s asE d s A ,qZ x x x x x x x x aE E gp��i C Ov ij 3 m v � � �N S°�g•� 3°+pp2 `o y i a a 5 a SqJ � m O �m NPDES Item November 73, 200] Page ]6 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: (909) 781 -6288 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: Entergency fire fighting flows need not be prohibited; however, appropriate BMPs shall be intplentented to the extent practicable. BMPs must be implemented to reduce pollutants front 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 Region's 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 intplentent a program ... to reduce pollutants from non - emergency fire fighting flows identified ... to be significant sources of pollutants to the waters of the US. NPDES Ifnn _ No inber 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 (XII1 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 M54s, 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 MS4 network: 4 - Municipal Facilities and Inspections (Section XIV -- 6). Newport Beach believes that the MEP standard for catch basin inspection and cleaning 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 r ,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: $16,291.14 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 Orange 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 Fund Account 010 3605 P 7NUE ESTIMATES (3601) Fund /nivision Account EXPENDITURE APPROPRIATIONS (3603) Description Fund Balance Description Amount Debit Credit $16,291.14 Description Division Number 7012 Drainage Projects Account Number C5100011 National Pollutant Discharge Elimination System $16,291.14 Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Automatic System Entry. Signed: Fi ancial Approval: Adminisfrative Services Director Date Siy Administrative Approval: City Manager Date Signed: City Council Approval: City Clerk Date 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 full herein, as virtually all of the issues raised in that letter are germane to the current draft of the Proposed Permit. 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, 2001) 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. II. 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), OAL File No. 99- 0602 -01 ( "OAL Decision re Los Angeles RWQCB") (attached). OAL'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. P 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 stone 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 stone 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 Homer. 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., 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 Pro gam. 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.31. 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 BaylNRDC Comments October 18, 2001 Page 6 {j 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. 2001 -01) ( "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 (e.g., 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 Outreacb 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 XIII, 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 S WPPs 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/NRDC 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 S WPP 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 17.1.b.(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 4 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 underlying programmatic requirements. See, eg., 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 s 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 I1 -2T -2001 03:59pm From - NATURAL RESOURCES DEFENSE COUNCIL 3239341210 T -236 P.002 /006 F -004 R1cHARa X Ho1zng, PH.D 230 NW 55m STRM TE "HONE. (206) 782 -7400 SEATME, WASHINGTON 98107 FACSi AIM (306) 781 -9584 E -mAjL: rrhorner®u.washingtomedu November 15, 2001 Mr. Gerald Thibeauh; Executive 0111cer Santa Ana Regional Water Quality Control Hoard 3737 Main Street, Suite 500 Riverside, CA 92501 Re: Tentative Order (November S. 2001 Draft), Order No. 01 -20, NPDES No. CAS618030 Dear Mr. Thibeauh: I have reviewed the Tentative Order, following up my earlier reviews of the preceding draft, the Draft Drainage Area Maintenance Plan (RAMP), and your staffs September 21, 2001 response to comments. In evaluating these documents I applied the experience of my 24 years of work in the urban stormwater management field and 11 additional years of engineering practice. During this period i have performed research, taught, and offered consulting services on all aspects of the subject, including investigating the sources of pollutants and other causes of aquatic ecological damage, impacts on organisms in waters receiving urban stormwater drainage, and tha M range of methods of avoiding or reducing these impacts. I have helped to develop stormwater management programs in Washington State, California, and British Columbia and studied such programs around the nation. I was one of four principal participants in a U.S. Environmental Protection Agency- sponsored assessment of 32 stare, regional, and local programs spread among 14 states in arid, semi -arid, and humid areas of the West and Southwest, as well as the Midwest, Northeast, and Scurheast This evaluation led to the 1997 publication of `Institutional Aspects of Urban Runoff Management. A Crude for Prog= Development and Implementation' (subtitled -A Comprehensive Review of the Institutional Framework of Successful Urban Runoff Management Programs"). My background includes eight years of work in Southern California, where I have been a federal coup- appointed overseer of stortrrumer program development and implementation at the city and county level and for two Caltrans districts. I was directly involved in the process of developing the 13 volumes of Los Angeles County's Stormwater Program Impletaemation Manual, working under the terms of a settlement agreement in federal court as the plaintifW technical representative. My role was to provide quality - control review of multiple drafts of each volume and contribute to bringing the program and all of its elements to an adequate level. I have farmed my opinions of the draft stormwater permit and supporting materials for Orange County based on my entire experience in the scientific, technical, and programmatic aspects of urban stormwater management programs. My assessment now, as it has been after my earlier II- 27-2001 04:00pm From - NATURAL RESOURCES DEFENSE COUNCIL 3239341210 T -236 P.003/006 F -804 Mr. Gerald Thibeault November 15, 2001 Page 2 reviews, is that the documents and the program they represent are wholly inadequate to stem the diminishment of water quality and aquatic ecosystems associated with the growth of population and its support structure in Orange County. Furthermore, this foundation is generally inferior when compared with rba substance of programs in outer area of high population and growth rate, both locations in our nationwide database and jurisdictions aeighhoring Orange County. Falling short of programs in place, particularly in very s'unilar circumstances nearby. the effort proposed for Orange County manifestly violates the maximum extent practicable (MEP) standard to which urban stormwater management is held. Tn this letter I illustrate and support my viewpoint with comparative examples representing, without limitation, just some of the inadequacies in the Orange County draft permit and supporting documents. The framework is inadequate, in general, in ignoring certain key program areas entirely, in only vaguely delineating others, and in delaying implementation of certain basic elements, already functioning for years elsewhere, until 2002, 2003, or even 2004. Comparisons concentrate on Los Angeles County, in light of its adjacent location and similarity in circumstances. These comparisons are based on thar program's status at the time Implementation Manual development finished, about three years ago. However, I have seen evidence that recent activities will improve the program further_ While I conceturate on the local comparisons, examples of superior measures could be drawn from many programs in urban areas all across the country. New development and redevelopment: Nationwide —Of the 32 projects surveyed, 94 percent require retaining the pre - development peak discharge, typically for one or more specified storm events. By the mid -1990s 72 percent were already providing guidance on the use of a great variety of source controls, including impervious surface limitation and protection of natural landscapes. Of the city and county programs in the database, 89 percent conduct public agency inspections of normwater fatalities for maintenance needs. Los Angeles County- -There is a specification to: "Minimize the volume of post - development storm water runoff to an amount approximately equal to an undeveloped vegetated site ... " A prioritization procedure identifies projects with the greatest potential to cause environmental harm and gives associated requirements. Standard Urban Stormwater Mitigation Plans (SUSWs) are in force for specified development categories. Treatment practices must be selected from the full suite of available structural BMPs. Tmproved site design and natural system protection practices (termed "source controls" in this program) are in use. The program presents a clear definition of redevelopment and what it entails with respect to stormwater Furthermore, there is specific assignment of maintenance responsibility for structural $MPs. Orange Courtly —There is no mandate to mimic any aspect of pre - development hydrology. SIJSMP exemption is given projects with approved tract maps as July 2003. In my experience, sweeping exemptions of this type virtually ensure that few projects will come under improved stormwater management for years. Consideration of improved site design and natural system protection practices (termed "watershed protection principles and policies" in this program) is not required until 7/T/04, putting Orange County a decade It -2T -2001 04:DOpm From- NATURAL RESOURCES DEFENSE COUNCIL 3239341210 T -236 P 004/006 F -804 Mr. Gerald Tlubeault November 15, 2001 Page 3 behind the national trend. Redevelopment is not defined. There is only a vague provision to ... ensure proper maintenance ..." of stormwater facilities. Construction sites: Nationwide — Approval of runoff control plans is required before issuance of building and grading permits in 89 percent of the city and county programs surveyed. AB but one of the cities and counties offer some form of training to contractors responsible for eonmuction site pollution control Los Angeles County —Thc program is based on speck criteria defining small, medium, and large projects; and ail project sizes have RW requirements. These requirements rest on the policy, "Eroded sediments and other pollutants must be retained on site and may not be transported from the size via sheet flow, swales, area drains, natural drainage courses or wind." Medium and large. projects (as small as 2 acres) have formal planning requirements. Special provisions apply to hillside grading and construction during the wet season_ Design review and approval criteria are explicit. Inspection frequency is timed to project complexity, key project phases, meteorological events, and performance record, a system that guarantees multiple inspections per year. Enforcement procedures are extensively spelled out. Orange County —There is no specific requirement to retain sediments and other construction residues on the site. Requirements pertain only to projects disturbing at least 5 acres. There are no criteria or guidelines for design review and approval. Inspection frequencies will depend on priorities assigned by permittees. Only high priority projects will have to be inspected as frequently as once a month and lower priority ones as little as one time in the wet season. The basis for enforcement and penalties is vague_ Contractor education gets no mention. Existing commercial and industrial establishments: Los Angeles County — Regulated facilities are the target of a five -year education outreach that began in 1998_ County inspectors are given specific initial training followed by tailgate sessions to cover new developments Facilities covered by the county's industrial Waste Aisposal Program are inspected at least annually and usually more often. Specified facilities not in this program are inspected either annually (including automotive repair shops, service stations, and restaurants) or biannually. Orange County — Educational materials are not even required to be ready until 7/l/02_ Inspector training is not required until 711103_ Inspection frequencies will depend on priorities assigned by permittees. Even high priority commercial establishments need not be inspected at all until 7/1/04, with no specified frequency thereafter (and also no specification for lower priority commercial sites). Only high priority industries will be inspected as frequently as once a year, and some as little as once a permit cycle. 11 -27 -2001 04:0Opm From-NATURAL RESOURCES DEFENSE COUNCIL 3238341210 T -236 P.005/006 F-004 b1r. Gerald Thibeault November 15; 2001 Page 4 Existing residential areas: Los Angeles County —The program includes a host of pollution prevention programs (e.g., for various hazardous wastes), source control BWs (e.g., for Etter, animal and yard wastes, eroding hillsides), and clean -up efforts. Orange County ---The permit and other documents are especially vague in this area, dealing very briefly with maintaining odsting litter collection and reporting and little else. Fature parnittee development of effective programs is extremely unlikely with a lack of requirements. Municipal faclities and activities: Loa Angeles County —Drain inlets and catch basins are cleaned annually, prior to the wet season and more often as needed for various reasons. Conveyances are routinely inspected and cleaned as needed. Inlets are stenciled every three years and evaluated for legibility intermediately. An improved drain stenciling technique was identified through testing and scheduled for pilot -scale installation, leading, if successful, w full-scale use. Orange County— A petminee is to, "... inspect and maintain at least So% of its drainage facilities on an annual basis, with 100% of the facilities included in a two -year period, using the model maintenance procedures . _" [developed by the principal permitteel. There are no standards for 'model maintenance procedures," and the language does not specify that this maintenance necessarily means cleating out accumulated material in drain inlets, catch basins, and other portions of drainage systems. A more "aggressive" program need not be developed until 711!04. Drain stenciling is mentioned only in connection with the vague `model maintenance procedures.' '.t. Los Angeles Coumy —The program recognizes with detailed coverage that sanitary sewer overflows to srormwater systems are significant pollution sources. It lays out specific inspection, maintenance, and response procedures to prevent or minimize these flows and interdict them if they occur. Orange County —The permit speaks of this issue only to specify that permittees must get the necessary legal authority to prohibit sewaga discharges to storm sewers by 711/03. ! Los Angeles Coumy--RMPs specify care in performing routine maintenance and conducting more extensive activities Eke resurfacing, sawcurting. painting, and managing wastes. Street sweeping frequencies (no less frequent than monthly) and procedures are specified. 11-2T -2001 04:01 Pm From - NATURAL RESOURCES DEFENSE COUNCIL 3238341210 T-236 P. 006/006 F -804 -Mr. Gerald Thibeault November 15, 2001 Page 5 Orange County —As with existing residernial areas and the sanitary sewer system, the permit virtually ignores this inflastructute element, widespread in scope and an important pouumm, source, calling only for development of "model maintenance procedures." Los Angeles County—County maintenance stations (e g., bases far staff engaged in road, storm drain, and sewer maintenance) are required to have atom water pollution prevention plans (SWPPPs) analogous to those required of industries covered by the general NPM stormwater permit. Further, they must use specified BMPs, as appropriate. The county provides comprehensive classroom training in stormwater management issues and procedures for office staff and tailgate training for outdoor workers. Orange County- -There is no explicit mention of these facilities and self - audits appear to be the predicate of the program. Public education: Los Angeles County.—The program was developed on the foundation of a well researched five -year plan. It includes extensive outreach to the general public. commercial establishments, industries, and schools, backed by a full complement of educational materials. Orange County — Goals are weak and vague, and outreach methods are described in a fashion too general to set a direction. Instructional materials are only envisioned in general categories at this point. I urge you to upgrade the Orange County permit and overall foundation fur its stormwater management program substantially in Chase and otber ways I would be very pleas eri to answer any questions you may have and invite you to comact me. Sincerely, Richard R. Horner, PhD. i 121I�o. CITY OF NEWPORT BEACH December 11, 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: (909) 781 -6288 RE: Comments on Tentative Order #01 -20, NPDES No CAS618030 (November 5, 2001 Version) Dear Mr. Thibeault: This letter represents the City of Newport Beach's comments on the November 5, 2001 version of Tentative Order ( "Order') #01 -20. Our City Council discussed the Order at three different meetings in November and December. We apologize for missing the November 19, 2001 formal comment deadline but trust that our comments provided within this letter will reach your Board in time for the December 19, 2001 hearing in Santa Ana. 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. These impacts have a significant economic effect on our community and all of the communities in the Region. We rely upon clean beaches to maintain our tourist base, our property values, and our quality of life. While there are costs associated with complying with this Order, we believe that there are even greater costs to our city and our county if we do not continue to aggressively combat the adverse effects of urban runoff. Further, we are a community populated with ocean and bay users - Newport Beach residents from six months to 96 years enjoy and use the water. Runoff and wastewater into our surface waters is a significant enough health concern that area doctors advise immunizations that we more often associate with developing countries than with California. We can and should do better. Here then, are our comments on issues within the Order: 1 - Legal Authority/Enforcement (Section VI). As you are aware, one of the most significant challenges in the Order (and, arguably, under the current permit) is a municipality's ability to regulate and prohibit the discharges described in Section VI (Subsection 6). For example, we know that many of Newport Beach's businesses 12tter to Mr. Tlkibeault Demmber 11, 2001 Page 2 today "wash down' their facilities, including sidewalks, patios, and dining areas. Doing so keeps a clean and sanitary environment around the business, but it also adds contaminants to the storm drain system and the receiving waters. The Order asks us to, by July 1, 2003, "review the ordinances establishing legal authority to determine the effectiveness of these ordinances in prohibiting these types of discharges to the MS4s.... (the permittees may propose appropriate control measures in lieu of prohibiting these discharges, where the permittees are responsible for ensuring that discharges adequately maintain these control measures)." As we read that subsection, we understand it to direct cities to either prohibit the discharge or to actively ensure that dischargers use all appropriate best management practices (BMPs) before causing the discharge. For example, under the Order, a restaurant owner may wash down her patio area and then allow the runoff to enter the MS4, but she must have swept up all debris, scraped up gum, and effectively removed all pollutants from the wash down area before turning on the hose. In anticipation of our City's enforcement of these standards, we urge the Board and Board staff to work with us - and every co- permittee - via workshops and other participatory meetings to provide us with appropriate BMP and enforcement guidance. We believe that the issue of direct prohibition of a discharge versus the implementation of BMPs in lieu of prohibitions will be among the most challenging aspects of this Order. 2 -- Municipal Inspections of Construction Sites (Section VIII), Municipal Inspections of Commercial Facilities (Section IX), Municipal Inspections of Commercial Facilities (Section X). We believe that the language in the Tentative Order regarding these three types of inspections is appropriate. We look forward to working with the Board and its staff to fully coordinate this important (yet costly) section of the Proposed Order and believe that it will be an integral part of controlling runoff and contaminated runoff at its source. 3 - New Development, Including Significant Re- Development (Section XII). A - General Requirements. The Tentative Order's requirements to include runoff- related issues within our planning processes, General Plan, and related documents is fully supported by the City of Newport Beach. B - WOMPs for Urban Runoff. The City of Newport Beach believes that the Regional Board should require structural BMPs of all new development and significant redevelopment to meet the sizing criteria shown in Section XIII (b) (3) upon adoption of the Tentative Order rather than waiting until October 1, 2003 or later. We recognize the controversial nature of structural BMPs, but we believe that, if managed correctly, they are the most appropriate mechanism to reduce runoff- related pollutants to the maximum extent practicable (MEP). Letter to Mr. Tidbeastt Dexinber 11, 2001 Page 3 4 - Public Education and Outreach (Section XII1). Newport Beach looks forward to working with Board staff, the lead permittee and our co- permittees in providing this appropriate level of education to the residents, businesses, and visitors in our region. 5 - Municipal Facilities /Activities (Section XIV). Model Maintenance Procedures. While we recognize that the Water Code prohibits the Regional Board from directing specific actions to remedy water quality problems, we urge the Board to: (a) Find that weekly street sweeping with parking enforcement is the minimum acceptable standard of street sweeping for all jurisdictions within the Order's area; and (b) Be diligent in its review of the "more aggressive program for cleaning out drainage facilities, including catch basins" set for after July 1, 2004. Proper (pre -storm season) and routine maintenance of catch basins is an ideal and cost - effective way to reduce the amount of trash, debris, and other contaminants sent into receiving waters by fall storms. Thank you for this opportunity to comment on the Order. Again, we support the overall scope and emphasis of the Order and thank the Board and Board staff for its efforts to improve and protect water quality in the Santa Ana Region. Please direct any questions you may have to our staff at 949 -644 -3002. Sincerely, TOD W. RIDGEWAY Mayor of Newport Beach cc: Members of the Newport Beach City Council Mr. Homer L. Bludau, City Manager Dave Kiff, Assistant City Manager Ms. Karen Ashby, Orange County Public Facilities and Resources Division