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City of Stockton and County of San Joaquin Page 48 NPDES Permit CAS0083470 Response to Comments could not allow EPA to issue a permit allowing increased loading of impairing pollutants to impaired water bodies; neither can the state issue such a permit. There is another way to examine this quandary. If MEP does not require strict compliance with water quality standards, there are three possible outcomes: 1. MEP results in a level of protection greater than necessary to protect water quality, 2. MEP is equivalent to what is necessary to protect water quality, or 3. MEP is less than what is necessary to protect water quality. In the first two examples, the issue is moot since the CWA requires compliance with MEP. If, however, MEP is less than what is necessary to protect water quality, a permit issued pursuant to the CWA authorizes new actions,which cause or contribute to a water quality impairment. This leads to the listing of the water body on the 303(d) list, which in tum leads to the development of a TMDL. Administratively, TMDLs are implemented through NPDES permits for point sources. If is assumed that strict compliance with water quality standards is not required in a permit, any TMDL program is left with no realistic chance of success. As we observed above, 40 CFR § 122.4(i)states that no permit maybe issued"[t]o anew source or new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards." An exception is provided if 1) there are sufficient remaining pollutant load allocations to allow the discharge; and 2) the existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. "New source"is defined at 40 CFR § 122.2 as"any building, structure, facility or installation from which there may be a discharge of pollutants. "Discharge of pollutants is defined as "any addition of and 'pollutant' or combination of pollutants to waters of the United States from any point source." This definition"includes additions of pollutants into waters of the United States from surface runoff which is collected or channeled by man and discharges through pipes, sewers or other conveyances owned by a state,municipality or other person which do not lead to a treatment works. The exceptions do not apply here because there is no evidence that there is sufficient remaining assimilative capacity(or load allocations)for pathogens, pesticides, mercury. PCBs,PAHs, oxygen demand constituents, etc., in local urban waterways to allow the discharge. Further, even if there was evidence,the existing dischargers into these segments are not "subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards." EPA's interim permitting approach does not establish firm schedules or procedures for compliance. Response: Comment noted. The focus of this comment appears to be that a standard higher than MEP is required for new sources. DeltaKeeper incompletely cites the definition of a new source. Under the Clean Water Act, "new sources"means"[A]ny building, structure, facility, or installation from which there is or may be a 'discharge of pollutants,' the construction of which commenced: (a) After promulgation of standards of performance under section 306 of CWA which are applicable to such source, or(b)After proposal of standards of performance in accordance with