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City of Stockton and County of San Joaquin Page 49 NPDES Permit CAS0083470 Response to Comments section 306 of CWA which are applicable to such source,but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal." (40 CFR 122.2; see also 33 U.S.C. § 1316(a)(2)). Clean Water Act Section 306 governs the development of national standards of performance for certain categories of sources. (33 U.S.C. § 1316) As such, Congress tailored Section 306 to certain narrow sectors. The national standards of performance appear as effluent guidelines in CFR, title 40, chapter 1, subchapter N(commencing with part 400). The national performance standards must be applied to "new sources"that are to be issued an NPDES permit. (33 U.S.0 § 1316(b)(1)(13)). There are no new source performance standards that apply to storm water discharges. 9. Comment: (DK Comment 2(e)(2))The Permit's failure to include performance standards does not comport with the CWA, undermines any ability to enforce the Permit or ensure attainment of water quality standards. Performance standards are criteria by which MEP demonstrates compliance with water quality standards. The absence of performance standards in the Permit for runoff, other than flow coming from new development, renders the Permit's requirement to meet water quality standards by implementing BMPs to MEP meaningless. There are literally no benchmarks to demonstrate compliance with water quality standards for activities within most of the geographical area covered by the Permit. The Permit must contain explicit performance standards or require the Permittees to propose acceptable performance standards in their SWMP. These performance standards must establish a clear nexus between the proposed suite of BMPs and attainment of water quality standards. As a rule, most BMPs are not specific and set few, if any, measurable performance standards. Procedures such as "minimize use of chemicals; use water-based and non-toxic paints as much as possible; or stockpile materials away from streets, gutters, storm drains inlets or water channels when possible," are essentially meaningless, since there are no standards by which compliance can be measured. In the absence of explicit performance standards, there is no defensible foundation for assuming that implementation of a random series of BMPs, selected by the Permittees,will ensure attainment of water quality standards. Especially, since they cannot demonstrate that implementation of BMPs in their previous permit has resulted in a single pound reduction of pollutants identified as"impairing" local waterways. The law clearly saddles the Permit or the Permittees with the burden of proof to demonstrate that proposed BMPs are sufficient to ensure compliance with water quality standards. On 22 January 2002, the Wisconsin Department of Natural Resources adopted rules (NR 151) regulating storm water runoff(included as Attachment"C"). These rules have passed the committees of both legislative houses and are slated to become law when published in the Wisconsin Register, expected on 1 October 2002. The rules define MEP as "a level of implementing best management practices in order to achieve a performance standard specified in this chapter which takes into account the best available technology, cost effectiveness and other competing issues such as human safety and welfare endangered and threatened resources, historic properties and geographic features." A performance standard is defined as "a narrative or