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r City of Stockton and County of San Joaquin Page 42 NPDES Permit CAS0083470 Response to Comments for a different outcome over the next permit term. There is no nexus between BMPs and performance standards and qualitative improvements in receiving water quality. Because the Permit will result in the degradation of high quality waters, as well as exceedances of water quality standards, an anti-degradation analysis under 40 CFR 131.12 is required. Under the tripartite analysis of 40 CFR 131.12(a),it is clear that the lack of an anti-degradation analysis in the Permit or Fact Sheet is legally deficient. The simple conclusion that implementation of the permittees' SWMP will reduce the potential for dischargers to cause or contribute to the degradation of water quality is unsupported by any evidence, and is in fact contradicted by the limited reporting data. 40 CFR 131.12(a)(1)requires that"[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." As this was clearly not the case during the last permit term, and will not be the case in the next, this requirement is not met. 40 CFR 131.12(a)(2) requires that, for instances in which water quality is higher than it needs to be to support current uses,that quality is to"be maintained and protected unless the State finds...that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the water are located." As the Permit contains no analysis justifying such a lowering of water quality, it fails to meet this requirement as well. 40 CFR 131.12(a)(3) does not apply, as no waters within the Permit's area have been designated"an outstanding National resource." Even assuming that the permit as written will achieve protection of water quality standards to the "maximum extent practicable," an anti-degradation analysis is still required. By definition,meeting an MEP standard does not equal strict compliance with water quality standards. Hence, as the Permit is to achieve MEP water quality standards, it will not comply with strict water quality standards,thereby leading to further and continued degradation of area waters. The Permit must therefore include a comprehensive anti-degradation analysis. Response: The permit specifies that increasingly more effective BMPs must be developed and implemented if water quality standards are being violated. Unlike most other point source NPDES permits, the iterative BMP process is MEP for a MS4 permit. The City and County have established programs and are required to evaluate their BMPs to determine if they meet Water Quality Standards and to propose improved BMPs to attain these objectives (Tentative Order, Findings 42-53,Provision D.1). While the Tentative Order allows for an increase in urban storm water discharges, the Tentative Order is designed to prevent degradation. The Regional Board is not required to complete a full anti-degradation analysis because the permit is designed to prevent degradation. Finding 54 has been revised to delete the second sentence"Therefore, it is possible that degradation of receiving water quality may occur." 6. Comment: (DK Comment 2(e))The Permit Fails To Adequately Define And Require Both MEP And Performance Standards. The EPA has never adequately defined MEP. EPA notes, in its 8 December 1999 Final Rule for revised regulations to address storm water discharges from small municipal separate storm sewer