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City of Stockton and County of San Joaquin Page 23 NPDES Permit CAS0083470 Response to Comments 13. Comment: "Unfunded Mandates" Under article XIII B, section 9(b) of the California Constitution, federally mandated appropriations include "mandates of. . . the federal government which, without discretion,require an expenditure for additional services or which unavoidably make the providing of existing services more costly." Sacramento v. California(Sacramento 11), 50 Cal. 3d 51, 71 (1984) (quoting Cal. Const. art., XIII B, 9(b)). Federal mandates that impose costs on local agencies do not require reimbursement by the state. Hayes v. Commission on State Mandates, 11 Cal. App. 4th 1564, 1593 (1992). This includes when a state implements a statute or regulation in response to a"federal mandate so long as the state had no `true choice' in the manner of implementation of the federal mandate."Id. (citing Sacramento 11). In contrast, article XIII B, section 6 of the California Constitution requires the state to give funding to reimburse local governments for the costs associated with a new program or higher level of service mandated by the Legislature or any state agency. Cal. Const. art., XIII B, Section 6. Costs imposed on local agencies by the federal government are not mandated by the state and thus would not require a state subvention."Hayes, Cal. App. 4th at 1593. Thus, under both Hayes and Sacramento, if the state has a 'true choice' or discretion in the implementation of the federal law, then the state cannot avoid its reimbursement function under section 6. "If the state freely chose to impose the costs upon the local agency as a means of implementing a federal program then the costs are the result of a reimbursable state mandate regardless of whether the costs were imposed upon the state by the federal government."Hayes, 11 Cal. App. 4th at 1594. Therefore, federal law giving discretion to the states does not constitute a federal mandate. Many of the terms of the Tentative Order go well beyond what is required by the federal NPDES program. Thus, to the extent that specific provisions of the Tentative Order are based either on federal law giving discretion to the Regional Board or on state law pursuant to Water Code section 13377, they cannot be considered federal mandates. Accordingly,the State must provide reimbursement to the Permittees for any and all requirements of the Tentative Order that exceed what is mandated by the CWA. Response: The Tentative Order does not purport to implement state law,but rather implements federal law as provided in the CWA and the MS4 regulations promulgated thereunder. The State Board has already addressed the"unfunded mandated"issue in its decision regarding the Los Angeles Region's SUSMP Order(Order WQ 2000-11). In the SUSMP Order, the State Board indicated that its earlier decisions held that the constitutional provisions cited by the County have no application to the adoption of national pollutant discharge elimination system(NPDES)permits. The State Board cited its decision In re San Diego Unified Port District, State Board Order No. 90- 3, for the proposition that the constitutional state mandate requirements do not apply to NPDES permits issued by Regional Board in that the NPDES permit program is a federally mandated program, rather than state-mandated(Id.,p. 14). USEPA has delegated authority to administer the NPDES program to the State of California. The Regional Board issues NPDES permits pursuant to