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City of Stockton and County of San Joaquin Page 19 NPDES Permit CAS0083470 Response to Comments The Regional Board Must Exercise Any Discretion Authorized By The Clean Water Act Within The Limits Of The MEP Standard. The Language of Section 402(p)(3): Section 402(p) of the CWA states that permits for discharges from municipal separate storm sewer systems: 1. May be issued on a system- or jurisdiction-wide basis; 2. Shall include a requirement to effectively prohibit non-storm water discharges into the storm sewers; and 3. Shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. 33 U.S.C. , 1342(p)(3)(B) Section 402(p) is narrow in scope and does not provide the Regional Board with omnibus authority in issuing municipal storm water permits. The Ninth Circuit decision in NRDC v. EPA, 966 F.2d 1292 (9m Cir. 1992), is also instructive in this regard. Noting that when Congress amended the CWA by adding Section 402(p) it was establishing two different standards for industrial and municipal storm water discharges, the court stated: Prior to 1987,municipal storm water dischargers were subject to the same substantive control requirements as industrial and other types of storm water. In the 1987 amendments, Congress retained the existing,stricter controls for industrial storm water dischargers but prescribed new controls for municipal storm water discharge. Ultimately, the only real authority provided to regional boards under Section 402(p)(3) is the authority to require a program to reduce the discharge of pollutants to the maximum extent practicable by using certain best management practices (BMPs). The storm water regulations implementing Section 402(p)(3)promulgated by the United States Environmental Protection Agency(EPA) are consistent with this MEP/BMP approach. Response: The Tentative Order's provisions are consistent with the MEP standard and the language in the CWA cited by the County. The Tentative Order relies on CWA Section 402(p)(3)(B)(iii) to require implementation of specific BMPs to reduce pollutants to the MEP. The CWA vests the Regional Board with substantial authority to develop MS4 permit requirements. As the County notes, CWA Section 402(p)(3)(B)(iii)provides that a permit to regulate discharges from MS4s must: "require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control ofsuch pollutants. " 33 U.S.C. § 1342(p)(3)(B) (emphasis added). Congress created the"maximum extent practicable"standard and the requirement to"effectively prohibit non-storm water discharges" into the MS4 in an effort to allow permit writers the flexibility necessary to tailor