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REGIONAL BOARD RESPOI~YSE (SWRCB/OCC FILE A-1524(A)) 11- PETITION FOR REVIEW OF WASTE DISCHAR&REQUIREMENTS ORDER NO. R5-2002-0181 CITY OF STOCKTON AND SAN JOAQUIN COUNTY PHASE I MUNICIPAL SEPARATE STORM SEWER SYSTEM The Porter-Cologne Act exempts, in relevant part, the Regional Board's issuance of the MS4 permit from compliance with CEQA. Water Code Section 13389 provides that regional boards shall not "be required to comply with the provisions of Chapter 3 (commencing with Section 21100) of Division 13 of the Public Resources Code prior to the adoption of any waste discharge requirements,except requirements for new sources as defined in the Federal Water Pollution Control Act..." Storm water discharges are not a new source within the meaning of the Clean Water Act. The Regional Board therefore does not need to comply with the documentary requirements of CEQA for the issuance of the Permittees' MS4 permit. DeltaKeeper also asserts that, in adopting the WDRs, the Regional Board must comply with all of the non-documentary policy provisions of CEQA, such as preparation of a cumulative impacts analysis and the imposition of mitigation measures to address any identified adverse impacts. The Regional Board need do no additional CEQA analysis. To the extent that the WDRs have prescribed that the Permittees implement certain requirements, (e.g., SUSMPs), there is no basis for expecting that they will have a significant adverse environmental impact requiring the imposition of mitigation measures. To the extent that the Permittees propose to undertake activities as part of their SWM? or other aspects of the WDRs, the Permittee as the public agency undertaking a project,is responsible for compliance with any CEQA analysis. TWELFTH BASIS• THE WDRs FAIL TO CONTAIN REOUIRED REASONABLE POTENTIAL ANALYSIS DeltaKeeper requests that the State Board remand the WDRs to the Regional Board to include a reasonable potential analysis (see Comment No.2(f)(3),A.R.,Item 13) DeltaKeeper claims that 40 CFR Section 122.44(d)requires a reasonable potential analysis, water quality-based effluent limitations, and whole effluent toxicity. However, the Ninth Circuit Court has decided that the CWA does not require municipal storm water sources to strictly comply with state water quality standards, including water quality-based effluent limitations [Defenders of Wildlife v. Browner (9th Cir. 1999) 191 F.3d 1159, 1165]. The basis for water quality-based effluent limitations is CWA Section 301(b)(1)(C), which states in part, "a discharge shall achieve any more stringent limitation, including those necessary to meet water quality standards... established pursuant to any State law or regulation." [33 U.S.C. § 1311(b)(1)(C)]. The Defenders of Wildlife court found that Section 301(b)(1)(C) does not apply to municipal storm water discharges. Storm water discharges are regulated by CWA Section 402(p) [33 U.S.C. § 1342(p)]. Section 402(p)(3)(A) governs industrial discharges, and specifically requires that industrial discharges comply with the provisions of Section 301 and its implementing regulations at 40 C.F.R. § 122.44. Section 402(p)(3)(B) governs municipal storm water discharges and provides that such discharges shall "require controls to reduce the discharge of pollutants to the maximum extent practicable." [33 U.S.C. § 1342(p)(3)(B)]. The Defenders of Wildlife court specifically held that the plain language of the CWA provides that municipal storm water discharges are subject only to the MEP-based requirements contained in CWA Section 402(p)(3)(13), and need not strictly comply with state water quality standards.