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REGIONAL BOARD RESPO�IGSE (SWRCB/OCC FILEA-1524(A)) -9- PETITION FOR REVIEW OF WASTE DISCHARGt REQUIREMENTS ORDER NO. R5-2002-0181 CITY OF STOCKTON AND SAN JOAQUIN COUNTY PHASE I MUNICIPAL SEPARATE STORM SEWER SYSTEM 122.26(d)(2)(iv)(A), the Permittees will provide estimates of the expected reduction of pollutant loads for structural and source control BMPs. In essence, through the iterative BMP implementation process, the definition of what constitutes MEP for a particular set of circumstances is determined. It is the implementation of the actions required by the permit,not the permit itself, that will meet MEP. That implementation is the responsibility of the permittees. Ultimately, the Regional Board is responsible for determining when MEP has not been met and taking appropriate actions as a result of such a determination. The iterative process for implementing BMPs is set forth in the WDRs at Findings Nos. 43-54 and in Provision D.1. EIGHTH BASIS: THE WDRs FAIL TO PROHIBIT DISCHARGES OF IMPAIRING POLLUTANTS TO IMPAIRED WATER BODIES DeltaKeeper requests that the State Board remand the WDRs to the Regional Board to require a prohibition of discharges of impairing pollutants to impaired water bodies (see Comment No. 2(e)(1)(a),A.R.,Item 13). The focus of this comment appears to be that a standard higher than MEP is required for new sources. DeltaKeeper incompletely cites the definition of a new source. Under the Clean Water Act, "new sources" means "[A]ny building, structure, facility, or installation from which there is or may be a `discharge of pollutants,' the construction of which commenced: (a) After promulgation of standards of performance under section 306 of CWA which are applicable to such source, or(b) After proposal of standards of performance in accordance with section 306 of CWA which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal." (40 CFR 122.2; see also 33 U.S.C. § 1316(a)(2)). Clean Water Act Section 306 governs the development of national standards of performance for certain categories of sources. (33 U.S.C. § 1316) As such, Congress tailored Section 306 to certain narrow sectors. The national standards of performance appear as effluent guidelines in CFR, title 40, chapter 1, subchapter N (commencing with part 400). The national performance standards must be applied to"new sources"that are to be issued an NPDES permit. (33 U.S.0 § 1316(b)(1)(B)). There are no new source performance standards that apply to storm water discharges. NINTH BASIS: THE WDRs FAIL TO INCLUDE PERFORMANCE STANDARDS DeltaKeeper requests that the State Board remand the WDRs to the Regional Board to include explicit performance standards or require the Permittees to propose acceptable performance standards in their SWMP (see Comment No.2(e)(2),A.R.,Item 13). The Permittees' revised SWMP, will contain BMPs that each Permittee will implement to reduce the discharge of pollutants from their respective MS4s to the MEP.The Permittees are required to establish performance standards for each proposed BMP. Pursuant to 40 CFR 122.26(d)(2)(iv)(A), the Permittees will provide estimates of the expected reduction of pollutant loads for structural and source control BMPs. These estimates may or may not be presented as a percentage of pollutant reduction, depending on the type of BMP employed. Where appropriate,these estimates will be used as performance standards. If these estimates do not provide appropriate performance standards, the Permittees will propose alternative performance standards in their SWMP. For non-structural BMPs (e.g.,business