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REGIONAL BOARD RESPONSE(SWRCB/OCC FILE A-1524(A)) PETITION FOR REVIEW OF WASTE DISCHARG$REQUIREMENTS ORDER NO. R5-2002-0181 COUNTY PHASE I MUNICIPAL SEPARATE STORM CITY OF STOCKTON AND SAN JOAQUIN SEWER SYSTEM and implemented if water quality standards are being violated. Unlike most other point source NPDES permit requirements,a large amount of capital investment is not anticipated for structural treatment control systems to comply with the storm water MS4 permits. The three year compliance period specified in CWA Section 402(p)(4)(B) and 40 CFR 122.42(d) applies to initial MS4 permits. Subsequent or renewed MS4 permits do not have a three year window for coming into compliance with permit conditions, consistent with and as required in 40 CFR 122.4(a). Finding No. 27 has been revised accordingly. Under the Defenders of Wildlife v. Browner Opinion(9th Cir. 1999) 191 F.3d 1159, a State is not obligated to require strict compliance with state water quality standards through the establishment and imposition of numeric effluent limitaantito fon S h gmits 91 F.3d 1159, 1166-67). Section 402(p)(3)(B)(iii) of the CWA states that"[p] es from municipal storm sewers . . . shall require . . . such other provisions as the Administrator . . . determines appropriate for the control of such pollutants.,, Thus,the permitting authority has the discretion to determine what pollution controls are appropriate in a particular case. However, the State Board in Order WQ 2001-15 has reiterated its endorsement of language that requires that storm water management plans in MS4 permits be "designed to achieve compliance with water quality standards. Compliance is to be achieved over time,through an iterative approach requiring improved BMPs." Order WQ 2001-15, p.7. As explained in State Board Order WQ 2001-15,the iterative procedure for complying with the requirement that MS4 discharges "must not cause or contribute to exceedances of water quality objectives in the receiving water"requires that"municipalities must report instances where they cause or contribute to exceedances, and then must review and improve BMPs so as to protect the receiving waters." Order WQ 2001-15,pp. 5-6. Virtually identical language to that upheld in Order WQ 2001-15 is contained in the Discharge Prohibitions and Receiving Water Limitations prohibitions, and Provision D in the WDRs. Thus, the WDRs are not"devoid of any analysis of how permit conditions are sufficient to ensure attainment of water quality standards in three years . . . ".as DeltaKeeper asserts. Instead,the provisions in the WDRs are consistent both with the recent Ninth Circuit decision and with State Board interpretations thereof. FOURTH BASIS THE WDRs FAIL TO COMPLY WITH SECTION 13390 ET SEO. OF THE PORTER COLOGNE WATER QUALITY CONTROL ACT DeltaKeeper requests that the State Board remand the WDRs to the Regional Board for appropriate modifications to comply with this section of Porter-Cologne (see Comment No.2(c), A.R.,Item 13). The WDRs' findings and Fact Sheet recognize that Stockton area waterways have significant water quality impairment(see,e.g.,Finding Nos. 64 thru 68). To reflect the requirements of CWC Section 13390 et seq., the WDRs impose requirements for Water Quality Based Programs; Provision 18 also requires development of a Pesticide Plan,Pathogens Plan and a Dissolved Oxygen Plan to address these specific impairments.