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REGIONAL BOARD RESPC§E(SWRCB/OCC F1LEA-1524(A)) `-0" -12- 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 The provisions of 40 CFR Section 122.44(d) implement CWA Section 301, which does not apply to municipal storm water dischargers.Therefore, DeltaKeeper's claim that water quality-based effluent limitations and whole effluent toxicity must be included in the WDRs directly contradicts the language of the CWA and the Ninth Circuit's conclusion regarding municipal storm water requirements. The WDRs have narrative requirements to control pollutants, and requires the Permittees' actions necessary to comply with those narrative requirements to reduce or eliminate the mass of pollutants discharged. The WDRs require the Permittees to demonstrate compliance by applying effective BMPs to the MEP. In summary, the reason to conduct a reasonable potential analysis is to determine whether or not it is necessary to include effluent limitations in a permit. Effluent limitations are not required to be included in MS4 permits and the WDRs do not seek to impose effluent limitations. Consequently, there is no reason to conduct a reasonable potential analysis. THIRTEENTH BASIS: THE WDRs FAIL TO INCLUDE MASS LIMITS DeltaKeeper requests that the State Board remand the WDRs to the Regional Board to include mass limits (see Comment No. 2(f)(4),A.R., Item 13) DeltaKeeper relies on 40 CFR Section 122.45(f) to support its claim that the WDRs must include mass limits. Mass limits are numeric limits expressed in terms of mass rather than concentration. The Defenders of Wildlife case specifically considered the requirement for municipal storm water permits to contain numeric effluent limitations in order to strictly comply with state water quality standards (Defenders of Wildlife v. Browner, 191 F.3d at 1161). As discussed above, the Defenders of Wildlife court determined that municipal storm water discharges need not include numeric water quality effluent limits. Therefore,mass limits are not required to be included in municipal storm water permits. Further, 40 CFR Section 122.44 supports that numeric limitations are not required for municipal storm water permits. Section 122.44(k)provides that permits shall include BMPs when "(2) authorized under section 402(p) of the CWA for the control of storm water discharges; or(3)Numeric effluent limitations are infeasible..." [40 C.F.R. § 122.44(k)]. The CWA specifically authorizes the use of BMPs for municipal storm water permits [33 U.S.C. § 1342(p)(3)(B)(iii)]. Further, the State Water Resources Control Board(State Board)has found that numeric effluent limits are infeasible for storm water discharges (State Water Resources Control Board Orders No. WQ 91-03 and No.WQ 91-04). The exceptions in subparts (2) and(3) of 40 CFR Section 122.44(k) therefore apply to municipal storm water permits. FOURTEENTH BASIS: THE WDRs ILLEGALLY AUTHORIZE NON-STORM WATER DISCHARGES DeltaKeeper requests that the State Board remand the WDRs to the Regional Board to remove provisions that illegally authorize non-storm water discharges (see Comment No.2(f)(5),A.R., Item 13) CWA Section 402(p)(3)(B)(ii) "does not require permits for municipalities to prohibit certain discharges of flows of non-storm water to waters of the United States . . . in all cases." [55 Fed. Reg.47990,48037 (16 Nov. 1990); 57 Fed.Reg. 41236,41262-3 (9 Sept. 1992)]. USEPA has determined that the mechanism for"effectively prohibiting"illicit discharges is the formation of illicit discharge prevention