public hearing orange county municipal separate storm sewer system (ms4) permit, urban storm water...

Public HearingOrange County Municipal Separate Storm Sewer System (MS4) Permit,

Urban Storm Water RunoffManagement ProgramOrder No. R8-2002-0010(Formerly Order No. 01-20)

(NPDES No. CAS 618030)January 18, 2002

Mark SmytheChief, Coastal Storm Water Unit

Overview

• Recap the progress of the permit process

• Identify and respond to comments received regarding the two errata sheets

• Answer questions

• Opportunity for public comment on the changes proposed by the errata sheets

TimelineSept. 1, 2000 Submittal of ROWDMay 11, 2001 1st Draft of Order No. 01-20 issuedJune 1, 2001 1st Public WorkshopJune 15, 2001 2nd Draft issuedJuly 20, 2001 2nd Public WorkshopSept. 13, 2001 3rd Draft issuedSept. 26, 2001 3rd Public WorkshopNov. 5, 2001 Tentative Order issuedDec. 5, 2001 Response to Comments issuedDec. 7, 2001 1st Errata Sheet issuedDec. 18, 2001 2nd Errata Sheet issuedDec. 19, 2001 Public Hearing Opened

Comment Letters• County of Orange

• Cities– Brea (Richards, Watson & Gershon)

– Buena Park (Public Works; Richards, Watson & Gershon)

– Garden Grove

– Huntington Beach

– Lake Forest

– Los Alamitos (Burke, Williams & Sorensen)

– Seal Beach (Richards, Watson & Gershon)

– Stanton (Burke, Williams & Sorensen)

– Yorba Linda

Comment Letters• Leisure World, CAI and CACM (Latham & Watkins)

• CoastKeeper (Lawyers for Clean Water)

• Defend the Bay (Natural Resources Defense Council)

• City of Westminster (past the January 8, 2002 deadline)

Finding 27 (Errata Item 27)

27. The DAMP is a dynamic document and the permittees haveimplemented, or are in the process of implementing, the various elementsof the DAMP. A revised DAMP was included with the NPDES permitrenewal application. This order requires the permittees to continue toimplement the BMPs listed in the revised DAMP; update or modify theDAMP, when appropriate, consistent with the MEP and other applicablestandards; and to effectively prohibit illegal and illicit discharges to thestorm drain system.

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

Finding 27 (cont.)

• In the case where a receiving water is on the Section 303(d) list of impaired waters, a TMDL will be developed for that receiving water that includes load allocations for non-point sources and waste load allocations for point sources (including urban storm water runoff). In that case, the applicable standard will be the waste load allocation and not maximum extent practicable.

• Staff’s recommendation is to use the language presented in Tentative Order No. R8-2002-0010 and Errata Sheet 2.

Finding 37 (Errata Item 28)

37. The legislative history and the preamble to the federal storm water regulationsindicate that the Congress and the U.S. EPA were aware of the difficulties inregulating urban storm water runoff solely through traditional end-of-pipe treatment.However, it is the Regional Board's intent that this order require the implementationof best management practices to reduce, to the maximum extent practicable, thedischarge of pollutants in storm water from the MS4s in order to support attainmentof water quality standards. This order, therefore, includes Receiving WaterLimitations based upon water quality objectives, the prevention of nuisance and thereduction of water quality impairment in receiving waters. In accordance withSection 402 (p) of the Clean Water Act, this order requires the permittees toimplement control measures, in accordance with the DAMP, that will reducepollutants in storm water discharges to the maximum extent practicable. TheReceiving Water Limitations similarly require the implementation of controlmeasures, to the extent that they are technically and economically feasible to protectbeneficial uses and attain water quality objectives of the receiving waters.

Finding 37 (cont.)

However, it is the Regional Board's intent that this order require theimplementation of best management practices to reduce, to the maximumextent practicable, the discharge of pollutants in storm water from theMS4s in order to support attainment of water quality standards.

The Receiving Water Limitations similarly require the implementation ofcontrol measures, to the extent that they are technically and economicallyfeasible to protect beneficial uses and attain water quality objectives of thereceiving waters.

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

Finding 37 (cont.)

In the case of Maximum Extent Practicable, technical and economic feasibility are not the only considerations taken into account, of equal importance are the issues of public health risk, societal concerns and benefits and the gravity of the problem.

This Finding already clearly states that the intent of this order is to reduce to the Maximum Extent Practicable, the discharge of pollutants in storm water from the MS4.

Staff’s recommendation is to use the language presented in Tentative Order No. R8-2002-0010 and Errata Sheet 2.

Section I.7 (Errata Item 31)

7. In conjunction with the other permittees,implement the BMPs listed in the approvedDAMP, and take such other actions as may benecessary to meet the MEP standard.

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

Section I.7 (cont.)In fact, only the 1993 version of the DAMP was ‘officially’ approved. The current DAMP is supplemented by the additional requirements set forth in this tentative order and during this permit cycle, the tentative order requires review and revisions to the DAMP which would again not allow a single ‘approved’ DAMP.

This is a Maximum Extent Practicable or MEP-based permit. The DAMP alone does not constitute the limit on what Best Management Practices or BMPs are necessary, under the permit, to address pollutants in urban storm water runoff. In order to meet water quality standards, the permittees must take such actions necessary, up to the MEP standard.


Section II.1 (Errata Item 32)

1. Implement management programs, monitoring programs,implementation plans and all BMPs outlined in the DAMP within eachrespective jurisdiction, and take any other actions as may be necessary tomeet the MEP standard.

As with the previous item, this is an MEP-based permit and actions beyond those listed in the DAMP may be necessary to meet MEP.


The County of Orange, Cities of Buena Park, Garden Grove, Huntington Beach and Lake Forest object to the inclusion of the phrase “and take such other actions as may be necessary to meet the MEP standard.”

Section III.3 (Errata Item 33)

3. . . .The Executive Officer Regional Board may add categoriesof non-storm water discharges that are not significantsources of pollutants or remove categories of non-stormwater discharges listed above based upon a finding that thedischarges are a significant source of pollutants.

CoastKeeper has commented that in their opinion, the addition of categories of exempted non-storm water discharges beyond those found in 40 CFR 122.26(d)(2)(i) are illegal, whether approved by the Executive Officer or Regional Board.

Section III.3 (cont.)

Staff disagree that there is a strict prohibition on adding to the list of exempt, non-storm water discharges that is, non-storm water discharges that need not be prohibited if they are not significant sources of pollutants.

It is not anticipated that additional exempt, non-storm water discharges will be added to the list. However, if it does take place, it will be a Regional Board action, with all the administrative procedures and public input and can ultimately be petitioned for appeal through the normal procedures established through the California Water Code.


Section III.8 and IV.2(Errata Items 34 and 35)

The Cities of Los Alamitos and Stanton object to the cause ‘or contribute’ language regardless of it’s location

III.8. Discharges from the MS4s of storm water, or non-storm water, for which a Permittee is responsible, shall notcause or contribute to a condition of nuisance as that term isdefined in Section 13050 of the Water Code.

IV.2. Discharges from the MS4s of storm water, or non-storm water, for which a Permittee is responsible, shall notcause or contribute to a condition of nuisance as that term isdefined in Section 13050 of the Water Code.

Section III.8 and IV.2 (Cont.)

• The reason for moving this language from Section IV to Section III is because it was felt by staff that it represented a discharge prohibition rather than a receiving water limitation.

• As to the ‘cause or contribute’ language, this language is consistent with language in precedential WQ Order No. 2001-15.


Section IV.3 (Errata Item 36)

3. 2. The DAMP and its components shall be designed to achievecompliance with receiving water limitations. It is expected thatcompliance with receiving water limitations will be achieved throughan iterative process and the application of increasingly more effectiveBMPs. The permittees shall comply with Sections III.2 and IV of thisorder through timely implementation of control measures and otheractions to reduce pollutants in urban storm water runoff to themaximum extent practicable in accordance with the DAMP and otherrequirements of this order, including any modifications thereto.

The County of Orange, Cities of Buena Park, Garden Grove and Huntington Beach object to the inclusion of the phrase stating that compliance will be achieved through an iterative process of increasingly more effective BMPs as not being within the mandatory Receiving Water Limitation language established by State Board in WQ 99-05.

Section IV.3 (cont.)

State Board’s Water Quality Order No. 99-05 provides receiving water limitation language which must be included in future storm water permits.

The language in question is a descriptive clarification of the well documented, existing process of meeting the MEP standard. It does not change, nor is it a substantive addition to the language contained in WQ Order No. 99-05.



3. 2. The DAMP and its components shall be designed to achievecompliance with receiving water limitations. It is expected thatcompliance with receiving water limitations will be achieved throughan iterative process and the application of increasingly more effectiveBMPs. The permittees shall comply with Sections III.2 and IV of thisorder through timely implementation of control measures and otheractions to reduce pollutants in urban storm water runoff to themaximum extent practicable in accordance with the DAMP and otherrequirements of this order, including any modifications thereto.

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


Again, where a receiving water is on the Section 303(d) list of impaired waters, a TMDL will be developed for that receiving water that includes load allocations for non-point sources and waste load allocations for point sources (including urban storm water runoff). In that case, the applicable standard will be the waste load allocation and not maximum extent practicable.


Section VI.1 (Errata Item 10)

1. The permittees shall maintain and enforceadequate legal authority to control the contribution ofpollutants to the MS4 by storm water discharges andenforce those authorities. associated with industrialactivities.

The County of Orange and the cities of Buena Park, Garden Grove, Los Alamitos and Stanton disagree with the deletion of the phrase “associated with industrial sources”, stating that it goes beyond the requirements of the Clean Water Act (40 CFR 122.26(d)(2)(i)(A) and would require the permittees to maintain and enforce legal authority to control the contribution of pollutants to the MS4 from all storm water.

Section VI.1 (cont.)• 40 CFR 122.26(d)(2) (i) Adequate legal authority. A demonstration that the applicant can

operate pursuant to legal authority established by statute, ordinance or series of contracts which authorizes or enables the applicant at a minimum to:

(A) Control through ordinance, permit, contract, order or similar means, the contribution of pollutants to the municipal storm sewer by storm water discharges associated with industrial activity and the quality of storm water discharged from sites of industrial activity;

• Burke, Williams & Sorensen, writing for the cities of Stanton & Los Alamitos recommends tying this requirement back to Finding 16, which limits the responsibility of the permittees for certain discharges and certain polluting activities.

Section VI.1 (cont.)Finding 16. The permittees may lack legal jurisdiction over stormwater discharges into their systems from some State and federalfacilities, utilities and special districts, Native American tribal lands,waste water management agencies and other point and non-pointsource discharges otherwise permitted by the Regional Board. TheRegional Board recognizes that the permittees should not be heldresponsible for such facilities and/or discharges. Similarly, certainactivities that generate pollutants present in storm water runoff may bebeyond the ability of the permittees to eliminate. Examples of theseinclude operation of internal combustion engines, atmosphericdeposition, brake pad wear, tire wear and leaching of naturallyoccurring minerals from local geography.

Section VI.1 (cont.)

40 CFR 122.26(d)(2) address the minimum requirements for establishing legal authority. It is clear that the permittees must establish legal authority over storm water discharges to their MS4 from commercial and residential activities in order to meet the MEP standard.

It is understood that there are discharges over which the permittees have little to no jurisdiction and activities over which the permittees have little to no control. This is clearly established in Finding 16 and does not have to be reiterated throughout the permit.


Section VI.6 (Errata Item 11)

6. By July 1 November 15, 2003, the permittees shall review theirwater quality and provide a report on the ordinances establishing legalauthority to determine the effectiveness of these their water qualityordinances and their enforcement, in prohibiting the following types ofdischarges to the MS4s and include in the report identified in Item 4,above (the permittees may propose appropriate control measures in lieuof prohibiting these discharges, where the permittees are responsible forensuring that dischargers adequately maintain those control measures):

The County of Orange and the City of Garden Grove question the vagueness of the directive “review their water quality” and ask whether this would be done pursuant to the Monitoring and Reporting Program.

Section VI.6 (Cont.)

In trying to grammatically improve this sub-section though the errata sheet, the word ‘ordinances’ was inadvertently dropped.

Staff recommends the following language for Section VI.6:

6 By November 15, 2003, the permittees shall review theirwater quality ordinances and provide a report on the effectiveness ofthese ordinances and associated enforcement programs their waterquality ordinances and their enforcement, in prohibiting the followingtypes of discharges to the MS4s (the permittees may proposeappropriate control measures in lieu of prohibiting these discharges,where the permittees are responsible for ensuring that dischargersadequately maintain those control measures.)

Section XII.A.3 (Errata Item 14)3. By December 19, 2002, the permittees shall should review theirplanning procedures and CEQA document preparation processes to ensurethat urban runoff-related issues are properly considered and addressed. Ifnecessary, these processes should be revised by that date to consider andmitigate impacts to storm water quality. These changes may includerevising the General Plan, modifying the project approval processes,including a section on urban runoff related water quality issues in anaddendum CEQA checklist, and conducting training for projectproponents. The findings of this review and the actions taken by thepermittees shall be reported to the Regional Board by January 2, 2003.The following potential impacts shall be considered during CEQA review:

The County of Orange and the Cities of Garden Grove, Lake Forest, Los Alamitos and Stanton object to the change from ‘should’ to ‘shall’, stating

that it intrudes on their local land use authority.

Section XII.A.3 (Cont.)

The requirement that the permittees review and revise, as necessary, their CEQA process to incorporate storm water issues is not new and was in the previous permit, Order No. 96-31.

The language in this section does not intrude on local land use authority. It is requiring the permittees to review their procedures and if necessary, revise them to address these issues. It is not telling them ‘how’ to address storm water issues.


Section XII.A.4 (Errata Item 15)

4. By July 1, 2004, the permittees shall review their should incorporatewatershed protection principles and policies into the their General Plansor related documents (such as Development Standards, Zoning Codes,Conditions of Approval, Development Project Guidance) to ensure thatthese principles and policies are properly considered and are incorporatedinto these documents. The findings of this review and the actions takenby the permittees shall be reported to the Regional Board by November15, 2004.and provide proof of such action in the 2004 annual report.These principles and policies should include, but not be limited to, thefollowing considerations:

The County of Orange and the Cities of Garden Grove, Lake Forest, Los Alamitos and Stanton object to the change from ‘should’ to ‘shall’, stating

that it intrudes on their local land use authority. .

Section XII.A.4 (Cont.)

• The language in this section is not prescriptive. It is requiring the permittees to review their general planning documents and if necessary, revise them to incorporate watershed planning concepts into these documents and processes.

• It is not telling them ‘how’ to incorporate these concepts, nor is it saying that these must be over-riding concepts when development planning actions take place. Only that they be properly considered.


Section XII.A.6 & 7 (Errata Items 16&17)

6. By July 1, 2003, the permittees shall should review and, asnecessary, revise their current grading/erosion control ordinances inorder to reduce erosion caused by new development or significant re-development projects.

7. The permittees shall should , through conditions of approval,ensure proper maintenance and operation of any permanent floodcontrol structures installed in new developments. The partiesresponsible for the maintenance and operation of the facilities, and afunding mechanism for operation and maintenance, shall should beidentified prior to approval of the project.

The County of Orange and the City of Garden Grove object to the change from ‘should’ to ‘shall’, stating that it intrudes on their local land use authority.

Section XII.A.6 & 7 (Cont.)

Regular review and revision (if necessary) of grading/erosion control ordinances is necessary to reduce the amount of sediment leaving construction sites and ending up in receiving waters. This requirement in no way limits local land use authority.

The requirement to identify responsible parties and funding sources for post-construction BMPs in new development and re-development will ensure that these structural measures are properly maintained and make sure everyone recognizes where the responsibilities lie for operation and manintenance.


Section XIII.3 (Errata Item 20)

3. By March 1, 2002, the permittees shall establish a Public EducationCommittee to provide oversight and guidance for the implementation of the publiceducation program. …

The goal of the public and business education program shall be to target 100% ofthe residents, including businesses, commercial and industrial establishments.Through use of local print, radio and television, the permittees must ensure thatthe public and business education program makes a minimum of 10 millionimpressions per year and that that those impressions measurably increase theknowledge and measurably change the behavior of the targeted groups. ByNovember 15, 2002, the Public Education Committee shall propose a study formeasuring changes in knowledge and behavior as a result of the educationprogram. Upon approval by the Regional Board Executive Officer, the studyshall be completed by the end of the permit cycle.

Section XIII.3 (Cont.)

• The County of Orange and the Cities of Brea, Buena Park, Garden Grove and Seal Beach contend that the burden of creating 10 million impressions is heavy enough without being required to ensure that those impressions have a measurable effect. The City of Newport Beach actively sought language in the permit to measure the effectiveness of the public education program.

• Clearly, the effect of a public education campaign is going to be dependent on the quality of the impressions made on the public. Numbers alone will not result in a successful program.


Section XIV.6 (Errata Item 22)

6. By July 1, 2002, the principal permittee shall develop amodel maintenance procedure for drainage facilities. This shallbe included in the 2001-2002 annual report. Each permitteeshall inspect, clean and maintain at least 80% of its drainagefacilities on an annual basis, with 100% of the facilitiesincluded in a two-year period, using the model maintenanceprocedures developed by the principal permittee. This shall beincluded in the annual report.

The City of Yorba Linda contends that the cleaning of every catch basin every two years is burdensome and would prefer to concentrate cleaning efforts on ‘problem’ catch basins.

Section XIV.6 (Cont.)

• Accumulated sediment, trash and debris that are left in a catch basin prior to the rainy season, will be transported to receiving waters with the first, heavy, winter rain.

• An annual cleaning program, designed to remove pollutants before they enter the MS4 system is the start towards a program meeting the MEP standard. Clearly, as identified by the City of Yorba Linda, there are areas where activities result in higher than normal pollutant loads entering the catch basin. These catch basins will then require a more ‘aggressive’ clean-out program.


Section XIX.1 (Errata Item 38)1. All reports submitted by the permittees as per the requirementsin this Order for the approval of the Executive Officer shall bepublicly noticed and made available on the Regional Board’swebsite, or through other means, for public review and comments.The Executive Officer shall consider all comments received prior toapproval of the reports. Any unresolved significant issues shall bescheduled for a public hearing at a Regional Board meeting prior toapproval by the Executive Officer.

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

Section XIX.1 (Cont.)

• The specific intent of this section was to provide a clearly defined public participation process regarding decisions made with respect to the MS4 permit.


Footnote 6 (Footnote Errata Item 3)

6 Receiving Water Limitations are requirements includedin the Orders issued by the Board to assure that theregulated discharge does not violate water quality standardsestablished in the Basin Plan at the point of discharge towaters of the State.

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

Footnote 6 (Cont.)

• Prior to receipt of these comments, it was noted by staff that the footnote had been misplaced on the a latter occurrence of the phrase and that was corrected in the draft of the tentative permit before you.

• As to the appropriateness of the footnote, it was added for the benefit of clarification and was done in response to the October 19, 2001 comment letter from Richards, Watson & Gershon requesting definitions for ‘Receiving Water Limitation”, “hazardous materials”, “toxic materials’, and “New Development.”


Proposed Changes

Project categories requiring revised WQMPs• Re-development projects of 5,000 or more square feet.

• Home subdivisions of 10 units or more.

• Commercial developments of 100,000 square feet or more.

• Automotive repair shops

• Restaurants of 5,000 square feet or more.

• All hillside developments on 10,000 square feet or more.

• Developments of 2,500 square feet or more adjacent to or discharging directly into environmentally sensitive areas.

• Parking lots of 5,000 square feet or more.

Proposed Changes (Cont.)

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

XII.B WATER QUALITY MANAGEMENT PLAN (WQMP) FORURBAN RUNOFF (FOR NEW DEVELOPMENT/SIGNIFICANT REDEVELOPMENT):

1. By March 1, 2003, the permittees shall review their existing BMPs forNew Developments (Appendix G of the DAMP) and submit for reviewand approval by the Executive Officer, a revised WQMP for urban runofffrom new developments/significant re-developments for the type ofprojects listed below: .

.

.

Proposed Changes (Cont.)

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

warehouses, and light & heavy industrial facilities.

Conclusion• Staff recommends that you adopt Tentative Order No. R8-

2002-0010 with the following changes:

VI.6 By November 15, 2003, the permittees shall review theirwater quality ordinances and provide a report on theeffectiveness of these ordinances and associated enforcementprograms their water quality ordinances and theirenforcement, in prohibiting the following types of dischargesto the MS4s (the permittees may propose appropriate controlmeasures in lieu of prohibiting these discharges, where thepermittees are responsible for ensuring that dischargersadequately maintain those control measures.)

Conclusion (Cont.)

XII.B.1

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

office buildings, warehouses, and light & heavy industrial facilities.

public hearing orange county municipal separate storm sewer system (ms4) permit, urban storm water...

Documents

receiving water

draft of order

errata sheet issueddec

tentative order issueddec

errata item

public comment

public workshopjune

public workshopsept