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City of Stockton and County of San Joaquin Page 43 NPDES Permit CAS0083470 Response to Comments systems, that the Agency"...has intentionally not provided a precise definition of MEP to allow maximum flexibility in MS4 permitting." Taking the hint from EPA,the State Board has defined the meaning of MEP to include technical feasibility, cost, and benefit derived with the burden being on the municipality to demonstrate compliance with MEP by showing that a BMP is not technically feasible in the locality or that BMPs costs would exceed any benefit to be derived. Permit Finding 19. The definition of MEP contained in Attachment C of the Permit only repeats the language of CWA § 402(p)(3)(B)(iii) that requires controls to the MEP and"such other provisions...". Response: Because DeltaKeeper's Comment 6 is intertwined with DeltaKeeper's Comment 7, a response to both comments follows Comment 7. 7. Comment: (DK Comment 2(e)(1)) The Permit's concept/definition of MEP does not comport with the CWA,undermines any ability to enforce the Permit or ensure attainment of water quality standards. The Permit states that"(i]mplementation of performance standards and BMPs in accordance with the Permittees' SWMPs and their schedules constitutes compliance with MEP requirements, and with requirements to achieve water quality objectives. Finding 33. In other words, the Permittees can comply with Permit conditions by simply implementing an amalgam of BMPs without considering whether the selected BMPs will ensure attainment of water quality standards or even if they will achieve any pollutant reduction. This absurd scenario establishes MEP as an unenforceable moving target unconnected to any substantive result. There is no clear enforceable standard other than compliance with randomly selected BMPs. The regulations prohibit issuance of an NPDES permit when"imposition of conditions cannot ensure compliance with the applicable water quality requirements of the affected states"40 CFR 122.4(d). The failure to adequately define MEP largely explains why the Permittees have never provided any meaningful rationale explaining exactly how their selected BMPs will ensure attainment of water quality standards. Perhaps, it also explains why staff has never required such a'rationale from the Permittees. However, EPA and the Water Boards definition of MEP ignores common sense, the dictionary and the explicit requirements of the CWA. Moreover, it is not clear whether the statement in Finding 33 is intended to be read as a legal conclusion or a finding of fact. In either case it is misplaced. As a legal conclusion Finding 33 misstates the applicable law. In fact, it directly contradicts the requirements of the Clean Water Act. If it is intended as a factual finding then the finding is wholly unsupported by evidence. The CWA section 402(p) requires municipal storm water permits to reduce pollutants to the MEP. Applicable law (discussed above) also requires that permits assure achievement of water quality standards. Discharge Prohibitions A2 and A3, and Receiving Water Limitation C2 appear to establish these requirements. However,Finding 32 introduces an unsettling ambiguity. By using the word "constitutes," Finding 33 suggests that Dischargers can escape the MEP and water quality standard requirements of the Permit (Discharge Prohibitions A2 and A3 and Receiving Water Limitation C2)by simply implementing the Permit's miscellaneous BMPs and limited performance standards. This is not the law. Unless the BMPs actually result in achievement of these standards Finding 33 creates a illegal loophole for the dischargers.