state water resources control board hearing june 4, 2008 presented by mary lynn coffee nossaman...

State Water Resources Control Board HearingJune 4, 2008

Presented by Mary Lynn Coffee

Nossaman Guthner Knox & Elliott LLP

www.nossaman.com

Comments of The City of IrvineOn The March 2008

Draft General Construction Permit

The City of Irvine Adopts and Supports:

1. Comments submitted today by the California Building Industry Association, the Construction Industry Coalition for Water Quality and other regulated stakeholders

2. Comments submitted today by California Stormwater Quality Association (CASQA)

3. The City of Irvine has coordinated closely with both groups in preparing these comments

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Major Concerns Regarding the Draft General Permit

1. New Opportunity to Challenge Local Agency Environmental and Land Use Approvals

A. Completely Open-Ended Ability to Challenge Projects Approved by Local Agencies

1) Public Comment and Challenge Period: from PRD filing through build out

2) Response to challenge can include:• Stop project to require hearings• Re-assessment of Risk• Stop Project to Require Individual Permits• Rescission of Permit• Retroactive Assessment of liability and fines

B. “Late Hits” Maximize Uncertainty for Approvals and Permits issued by Local Agencies 3

Typical Land Use Approval Time Line and Ability to Challenge

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General PlanSpecific Plan

ZoningUse Permits

Tentative Tract/Parcel MapsBackbone Infrastructure Plans

Site PlansImprovement Plans

Responsible Agency Permits

Grading andInfrastructure

Permits

Final Tract/Parcel Maps

Building Permits

Cert. of Occupancy

NOI/NOT CEQA

Development Agt

Major Concerns -- Opportunity to Challenge

C. Issues for Local Agencies and Land Use Authority:1) No Limitation On Time Period For Challenge

2) No Requirement that Challenges Must Be Related to Construction Site Water Quality Control:• Site planning and design—well after CEQA and planning phase• Hydromod control measures• Other?

3) Regional Boards May Stop Projects at Any Time

4) Local Agency’s Have No Post-Vesting Authority to Require Project Changes

5) Compliance Trap/ Retroactive Enforcement Liability• Construction operators• Municipalities issuing those operators grading permits based on

receipt of NOI and WDID? 5

Major Concerns -- Opportunity to Challenge

D. No Recent Case Law Requires The Public Participation Requirements As Currently Specified

E. Alternative Public Participation Requirements That Relieve Unnecessary Local Agency Burden and Respect Land Use Approvals

• Specify very limited time period after PRD acceptance for public comment (30 days)

• Public review, if allowed, should be limited solely to Construction Phase Water Quality Control Issues

• Expressly exclude site design, planning challenges

• Rely on current enforcement options under law6


2. Risk Assessment Approach

A. Support A Risk-Based ApproachB. Risk Assessment is Skewed Toward

Determination of High Risk1) Almost all sites within the City of Irvine Would Qualify for

Risk Category 3 or 4:• Broad definition of discharge “to” 303(d) listed waters (despite

significant co-mingling of flows prior to reaching such a waterbody)

• Predominate soils types and precipitation characteristics• Baseline score of 10, which prevents finding minimum risk level 1

2) Adjust the Risk Assessment - Bell-Shaped Curve • Recalibrate sediment and receiving water risk• Appropriately define discharge to sensitive and 303(d) listed

waters to preclude discharges that are commingled with other flows

• Appropriately and specifically define sensitive receiving water 7

Major Concerns –Risk Assessment

C. Risk Assessment Provides Too Little Incentive for Proactive BMPs

1) Only incentives are for ATS and seasonal grading ban

2) For ATS, only incentive if all discharges are captured and treated regardless of event size, which isn’t practicable

3) Provide real incentives—allow risk reductions for:

• Effective traditional BMPs and BMP combinations

• Reasonable use of ATS (2 year design event as suggested in Monitoring Program)

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Major Concerns –Risk Assessment

D. Local Agency “Partnering” in Enforcement or MS4 Mandates to Enforce Risk Assessment Requirements Risk Assessment is Complicated and Not Amenable to Supervision• Complex formula not exactly suited for purpose

• Large number of different variables

• Large number of potentially appropriate values for each variable (site specific values, constants, areal ratios)

• No permit provisions providing guidance regarding recalculation of risk assessments through period of construction as conditions change

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3. Exclusions from Permit CoverageA. No General Permit Coverage For Risk Category 4 Sites

1. Vast majority of sites in the City of Irvine are Category 3 or 4 Sites—4 not covered

2. If Assumed Normal (Bell Shaped Curve) Risk Distribution Over 2,600 Individual Permits would have to be Processed Upon Adoption of Draft Permit—Within 100 Days

3. No Assessment of Impacts of Individual Permitting Requirements on Regional Boards

4. No Guidelines to Regional Board Regarding Creation of Individual Construction Permitting Programs

5. Backlog and Delays are Inevitable

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Major Concerns—Exclusions from Permit

B. No Coverage For Discharges to Waters Of the State

1) Discharges To Waters State Excluded From Coverage

2) Exclusion Affects Completely Undefined, But Potentially Large Group Of Construction Sites

3) New Limitation, But No Rationale

4) Questions/Substantial Complexity To Determine If Coverage Is Permissible

• Rapanos/SWANCC Analysis?

5) Compliance Trap

6) No Assessment of Number of New IPs Required or Impacts on Regional Boards 1

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Dr. Wolf’s Question

Q:The permit attempts to balance the need for simplicity and transparency with the need to sensitively address widely different physical conditions across sites. In what parts of the draft permit do you think complexity is most and least valuable?

A: Complexity is critical in analysis and data that serves as basis for water quality requirements adopted, but should be eliminated from operator driven decisions— e.g., is a site covered, which permit requirements apply to a site.


4. Numeric Effluent LimitsA. Major Shift in Regulatory Policy from BMP-

Based Approach to NEL Approach1) Tremendous Scientific, Technological and Policy

Concerns

2) Concerns Echoed by experts ranging from EPA, to Blue Ribbon Panel, to host of experts submitting comments and credible scientific and technical information in response to the Draft Permit

B. Impracticable Treatment Volumes1) NELs apply to all discharges, regardless of event

size/frequency

2) All runoff from every event must be treated to achieve full compliance with the Draft Permit

3) Fails to consider impracticability13

Major Concerns --NELs

C. Failure to Consider Appropriate Data, Evidence and Necessary Evidence and Factors

1) Shifts To Reliance on NELs

2) Establishes Valued for NELs

3) No attempt to conduct a rigorous analysis and balancing in accordance with USEPA protocols and regulations

D. Requires Extensive Discharge Monitoring to Implement the Approach1) Costs greatly underestimated given variety potential for SSC

monitoring, increase in mandated monitoring frequency, increase in number of discharge points to monitor

2) Costs do not include costs of receiving water monitoring bound to be required to inability to achieve 100% compliance

3) No direct benefit to water quality, particularly for SSC monitoring 1

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Q:Ignoring the numbers and how they are calculated, do you think that the tiered compliance structure of the permit is a desirable or undesirable feature? By tiered structure we mean action levels 'backstopped' by higher numeric effluent limits that are intended to simplify enforcement against egregious violations.

A: City of Irvine believes the tiered structure is flawed, and recommends the iterative BMP-based approach to regulation enhanced by use of ALs to assist in improved planning, implementation and improvement of BMPs. The City supports the “Bridge” approach.

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5. No Phase-in or Grandfathering period for Regional Boards to Put Individual Construction Permit Program into Place

A. Need Grandfather Projects Under Construction from Individual Permitting

B. Need Longer Phase In Period For Risk Based Approach

C. Grandfather Projects Under Construction from Public Challenge

D. Grandfather Projects from Hydromod Control if past Tentative Map Approval and/or Vested Development Rights

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6. Monitoring Requirements

A. Discharge Monitoring

• Support self-monitoring for purpose of BMP planning, adjustment, and improvement via properly calculated ALs

• Concerns about costs to implement for NELS without water quality benefit, and requirements for run-on monitoring mandated by NELs

• Concerns regarding SSC testing limitations, inconsistencies and vaguely stated triggers, methods, and instructions for sampling and monitoring

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Major Concerns --Monitoring

B. Receiving Water Monitoring

• Extremely expensive

• Not effective for enforcement or “Gotcha”—no connection between SSC and bioassessment monitoring and construction sites

• Not appropriately conducted by operators

• Duplicative of ambient and MS4 permit monitoring, but no additional water quality benefit

• Inconsistencies and vaguely stated triggers, methods, and instructions for sampling and monitoring

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Q: Our scientific understanding of when and where a management practice is best is limited. Self monitoring for compliance will not necessarily increase our understanding due to variations between practitioners and for other reasons. Are you interested in creating a scientifically valid database on management practice performance via rigorous third party 'random' monitoring in lieu of self-monitoring and at least partially paid for by permittees?

A: City of Irvine supports a properly designed collective monitoring program to collect not only discharge data, but also needed receiving water data.


7. Improper Limitation on Legally Responsible Parties

A. Only Certain Defined Parties Can File and Update PRDs

B. Excludes Operators

C. Exclusion Not Required by EPA Guidelines

D. Exclusion Burdens Public Works Projects

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8. Improper Application to Certain Types of Projects

A. Linear Projects—Infrastructure and Utilities

• Distinct Differences-smaller open area, more watersheds

• Separate General Permit

B. Maintenance Projects Previously Exempt

• Low Threat

• No need to preclude use for private streets

Major Concerns –Improper Application to Certain Projects

C. Projects Of Any Size That Are Part Of A Capital Improvement Project Plan

• CMPs contain many projects that are not designed, engineered, funded, or reasonably likely to be developed during the term of the Draft Permit

• CMPs do not constitute a Common Plan of Development

Mary Lynn CoffeeNossaman Guthner Knox & Elliott LLP

18101 Von Karman Ave., Suite 1800Irvine, CA 92612(949) 833-7800

[email protected]

www.nossaman.com/mlcoffee

state water resources control board hearing june 4, 2008 presented by mary lynn coffee nossaman...

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