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REGIONAL BOARD RESPO JE(SWRCB/OCC FILE A-1524(A)) `� 5 <br /> PETITION FOR REVIEW OF WASTE DISCHARGE REQUIREMENTS <br /> ORDER NO. R5-2002-0181 <br /> CITY OF STOCKTON AND SAN JOAQUIN COUNTY PHASE I MUNICIPAL SEPARATE STORM <br /> SEWER SYSTEM <br /> Second,neither the ESA nor any other law requires "consultation" with the USFWS or NMFS regarding <br /> the necessity of a take permit. Section 9 of the ESA prohibits unpermitted taking of endangered species <br /> (16 U.S.C. § 1538). Section 9 does not contain any requirement to consult with USFWS or NMFS. <br /> There is no provision in the law for the Permittees to consult with the USFWS or NMFS regarding <br /> whether to apply for a take permit. Consultation under the ESA is required under Section 7,which <br /> applies only to federal activities [16 U.S.C. § 1536(a)(2); Sierra Club v. Babbitt(9th Cir. 1995) 65 F.3d <br /> 1502, 1512]. Further, the ESA is enforceable by federal agencies,not the Regional Board.The Regional <br /> Board does not have authority or responsibility to enforce the ESA through NPDES permits. In fact, <br /> compliance with the ESA is addressed by federal agency review of state-issued permits (40 C.F.R. § <br /> 123.44). <br /> THIRD BASIS• THE WDRs FAIL TO ENSURE ATTAINMENT OF WATER OUALITY <br /> STANDARDS WITHIN THREE YEARS <br /> DeltaKeeper requests that the State Board remand the WDRs to the Regional Board to require the <br /> City of Stockton and County of San Joaquin to attain water quality standards within three years. <br /> In its Comment No. 2(b) (see A.R.,Item 13)on the tentative WDRs,DeltaKeeper made the <br /> following assertions regarding this issue: <br /> "The regulations prohibit issuance of a permit"when the conditions of the permit do not <br /> provide for compliance with the applicable requirements of CWA, or regulations promulgated <br /> under CWA" [40 C.F.R. § 122.4(a)] or"when imposition of conditions cannot ensure <br /> compliance with the applicable water quality requirements of all affected states." [40 CFR § <br /> 122.4(d)]. The regulations also mandate,at 40 CFR § 122.42(d),compliance with permit <br /> conditions "as expeditiously as practicable,but in no event later than three years after the <br /> date of issuance of the permit" The fact that more flexible BMPs are allowed in lieu of end-of- <br /> pipe limitations does not alter the requirement that permits must ensure the attainment of <br /> water quality standards within three years. <br /> Section 402(P)(3)(B)(iii) of the 1987 amendments to the CWA requires permits for discharges <br /> from municipal storm sewers to "require controls to reduce the discharge of pollutants to the <br /> maximum extent practicable,including management practices,control techniques and system, <br /> design and engineering methods,and such other provisions as the Administrator or the State <br /> determines appropriate for the control of such pollutants." Section 402(P)(4)(A) & (B)also <br /> requires that any permit"...shall provide for compliance as expeditiously as practicable,but <br /> in no event later than 3 years after the date of issuance of such permit" <br /> By preparing their SWMP and implementing BMPs through the first permit cycle, the Permittees <br /> complied with Section 402(p)(4)(B) of the CWA. The first term permit included similar provisions as <br /> required under the federal laws and regulations. The MS4 permits generally do not have numeric limits; <br /> the Permittees are required to reduce the discharge of pollutants to the MEP. The WDRs contain <br /> Discharge Prohibitions at A. 1-3, and B. 1-5. The WDRs also impose receiving water limitations on <br /> discharges from the MS4. The WDRs specify that increasingly more effective BMPs must be developed <br />