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`. 1-01 City of Stockton and County of San Joaquin Page 47 NPDES Permit CAS0083470 Response to Comments 8. Comment: (DK Comment 2(e)(1)(a)) The regulations prohibit discharge of impairing pollutants to impaired water bodies. It is reasonable and logical to conclude that controls to reduce the discharge of pollutants to the MEP will be different for new and existing municipal storm water discharges. The feasibility of reversing the effects of urbanization is clearly different that the feasibility of preventing them. Reversing water quality effects of urbanization and urban storm water maybe impossible without "unbuilding"urban environments. However, it is clearly feasible (read practicable) to prevent future or additional water quality impairment by not taking or permitting actions, which lead to further impairment. MEP requirements for new development must comply with 40 C.F.R. Sec. 122.4(i)which prohibits the permitting of new sources or new discharges of pollutants already impairing receiving waters unless a waste load allocation has been assigned to that new source. MEP for new development mandates strict compliance with water quality standards. In Defenders, the court ruled that compliance with water quality standards in municipal phase 1 storm water permits is discretionary. However Defenders did not make a distinction between new storm water discharges and existing storm water discharges or sources and, as a result, applied the same standards for both. Nor, did Defenders examine discharges of impairing pollutants to impaired water bodies. In failing to distinguish between restoration and protection, the EPA permit did not raise the non-discretionary permitting obligation under the CWA to protect existing water quality from impairment due to new storm water discharges. The Permit must prohibit increased mass loading of impairing pollutants to impaired water bodies. Under Section 401 of the CWA, before a federal license or permit may be issued, a State must certify that the discharge will comply with state water quality requirements. In States that have not been delegated the NPDES program, the EPA must issue MS-4 permits. MS-4s written by EPA must comply with state water quality standards since,under Section 401(a)(1), if a State does not either certify the permit or waive their certification, EPA is prohibited from issuing the permit (40 CFR 122.4(b)). State water quality standards commonly include provisions allowing for compliance schedules to enable existing discharges to come into full compliance with the law. However, new discharges or sources must be treated differently. Under federal regulations, all state water quality standards must include a statewide anti-degradation policy,which must protect existing uses and the water quality level necessary to protect those uses. To be consistent with anti-degradation requirements new municipal storm water discharges, new contributions to an existing municipal discharge and municipal storm water discharges from areas of new development must not impair existing water uses. It is not possible for a state to certify an EPA issued permit under Section 401 if the permit fails to protect existing uses. As a consequence, EPA would be prevented from issuing such a permit. The discretionary interpretation of Section 402(p)(3)(B)(iii) for compliance with water quality standards for new dischargers would then set up differential permitting standards for EPA issued MS-4 permits and state issued MS-4 permits. Under this scenario, EPA is held to a higher non- discretionary standard under Section 401 than the state is held to under Section 402. Since the state