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City of Stockton and County of San Joaquin Page 34 NPDES Permit CAS0083470 Response to Comments Section 402(P)(3)(B)(iii) of the 1987 amendments to the CWA requires permits for discharges.from municipal storm sewers to "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." Section 402(P)(4)(A) & (B) also requires that any permit"...shall provide for compliance as expeditiously as practicable,but in no event later than 3. years after the date of issuance of such permit." On 26 August 1996, the United States Environmental Protection Agency(EPA)published the Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits, (61 Fed. Reg 43761)which set forth EPA's evolving policy on the controls that would be required for storm water NPDES permits. EPA stated that"The interim permitting approach uses best management practices (BMPs) in first-round storm water permits, and expanded or better-tailored BMPs in subsequent permits, where necessary, to provide for the attainment of water quality standards. In cases where adequate information exists to develop more specific conditions or limitations to meet water quality standards, these conditions or limitations are to be incorporated into storm water permits..." (Emphasis added) On 6 November 1996, EPA published a "Questions and Answers Regarding Implementation of an Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits, "Fed. Reg 43761, that addressed the question of whether municipal or industrial storm water dischargers would be subject to numeric water quality-based effluent limits in order to attain water quality standards. EPA noted that"[a]lthough National Pollutant Discharge Elimination System (NPDES)permits must contain conditions to ensure that water quality standards are met, this does not require the use of water quality-based effluent limitations." (emphasis added) EPA justified this analysis based on the fact that 1)the CWA defines "effluent limitations" as meaning any restriction on quantities, rates, and concentrations of constituents discharged from point sources,but does not say that effluent limitations need be numeric; and 2) EPA's own regulations allow for the use of best management practices" or BMPs, to supplement or replace numeric limitations where numeric limitations are "infeasible." (See 40 CFR 122.44(k). It should be noted that EPA's Interim Policy Approach apparently conflicts with the plain language at 40 CFR § 122.44(d)which requires NPDES permits to contain effluent limits which will control all pollutants which are, or may be, discharged at a level which will cause, have the reasonable potential to cause of contribute to an excursion above any State water quality standard, including narrative criteria. Section 122.44(d)represents EPA's only regulatory statement on the issuance of compliance with water quality standards and thus trumps any policy statement in conflict. The interim permitting approach has not undergone rulemaking procedures and cannot be relied upon as authority superseding § 122.44(d). Indeed, EPA admits that it is a policy and doesn't constitute a binding obligation as regulation. (64 Fed. Reg. at 68789). The interim permitting policy complements 40 CFR § 122.44(d)'s more specific requirement that storm water discharges into "impaired waters"must not violate water quality standards as to specific pollutants. The State Water Resources Control Board in a series of water quality orders (91-03, 96-13, 98-01, 99-05 & 2001-15)has affirmed the use of an iterative BMP approach in meeting water quality