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REGIONAL BOARD RESP&SE(SWRCB/OCC FILE A-1524(A)) ` -4- PETITION FOR REVIEW OF WASTE DISCHARGE REQUIREMENTS ORDER NO. R5-2002-0181 CITY OF STOCKTON AND SAN JOAQUIN COUNTY PHASE I MUNICIPAL SEPARATE STORM . SEWER SYSTEM NPDES permit without an adequate effluent characterization, or an adequate receiving water exposure assessment...may result in the imposition of inappropriate numeric limitations on a discharge...This could lead to overly stringent permit requirements, and excessive and expensive controls on storm water discharges,not necessary to provide for attainment of WQS. Conversely, an inadequate effluent characterization could lead to water quality-based effluent limitations that are not stringent enough to provide for attainment of WQS." If numeric effluent limitations are deemed infeasible,USEPA recommends the same approach that was used to develop the WDRs: the iterative BMP approach. As stated in the USEPA guidance document, "[t]he interim permitting approach uses best management practices (BMPs) in first-round storm water permits, and expanded or better-tailored BMPs in subsequent permits." The USEPA guidance document was also cited by the State Board in its Order WQ 2000-11 as support for the State Board's endorsement of the iterative BMP approach. Thus, the use of this approach comports with federal and State law with regards to renewal of MS4 permits. Regarding Finding No. 50 of the tentative WDRs, which became Finding No. 51 of the final WDRs,the language which DeltaKeeper found offensive was removed from this finding; it was also modified to better explain the role of performance standards in measuring BMP effectiveness. SECOND BASIS: THE WDRs FAIL TO COMPLY WITH STATE AND FEDERAL ENDANGERED SPECIES ACT REQUIREMENTS DeltaKeeper requests that the State Board remand the WDRs to the Regional Board for appropriate modifications to comply with applicable requirements (see Comment No. 2(a),A.R., Item 13). DeltaKeeper cites the NMFS's recent identification of the Delta and its tributaries as "Critical Habitat" for the Central Valley spring-run Chinook salmon and Central Valley Steelhead. As that final rule makes clear, the designation of critical habitat does not change any of the existing requirements under the Federal Endangered Species Act(ESA) for listed species [65 Fed. Reg. 7764, 7766 (16 Feb. 2000)]. The only provision of the ESA that is applicable to the Permittees is Section 9 (16 U.S.C. § 1538). Section 9 prohibits any activity that would cause an unpermitted"taking" of endangered species and certain threatened species [16 U.S.C. § 1533(d)]. DeltaKeeper suggests that the Permittees should be required to consult with USFWS and NWS to determinawhether Permittees need a"take permit." First, no evidence has been submitted that shows that the Permittees' discharge is causing or has the potential to cause a take of any listed species. Finding No. 26 in the WDRs states that the discharges shall not cause or contribute to violations of water quality standards that would cause or create a condition of nuisance, pollution, or water quality impairment in receiving waters.In addition,Finding No. 30 states that these requirements implement the Basin Plan,which identifies preservation and enhancement of fish,wildlife, and other aquatic resources as a beneficial use. The WDRs therefore address the protection of fish, wildlife, and other aquatic resources, whether they are listed under the ESA or not. The following is added to clarify the Regional Board's intent: Finding No.41, "This permit does not authorize any take of endangered species. To ensure that endangered species issues were raised to the responsible agencies, the Regional Board notified the U.S. Fish and Wildlife Service,National Marine Fisheries Service, and the California Department of Fish and Game of Regional Board consideration of this Order."