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*A" ✓ City of Stockton and County of San Joaquin Page 52 NPDES Permit CAS0083470 Response to Comments To the extent the Permit does not require compliance within the 3 year period, it fails to contain the required"schedule of compliance"used to facilitate compliance with the permitting standard deadline. 33 USC § 124.2. The regulations at 40 CFR§ 122.47 specify the specific requirements for schedules of compliance, including: time for compliance, interim dates,time intervals,reporting requirements, etc. Furthermore, 40 CFR 122.47(a)(3) requires that schedules of compliance longer than one year have interim requirements. Many of the deadlines set by the Permit are longer than one year, yet none sets forth the required interim requirements. For example,proposals for the Water Quality Based Programs including monitoring components (i.e., pathogens, low dissolved oxygen and pesticides) are scheduled to be submitted to the Executive Officer by 1 April 2004. The Executive Officer may accept or reject the proposed plans, or schedule them for a hearing before the Regional Board. There is nothing in the Permit that ensures that the Water Quality Based Programs will even be implemented within the life of the Permit. Even if the vague terms of the Permit could be construed as a"schedule of compliance,"the terms of the iterative approach envisioning a compliance over a longer than 5 year temi violates the requirement that permits may only be issued for a 5 year period. 33 USC § 1342(b)(1)(B); 40 CFR § 122.46(a). If the compliance schedule is deemed to have a duration greater than 5 years, it would mean that the Permit is being issued with an"interim"compliance requirement in clear violation of the CWA.' Alternatively, it can be argued that the extensions provided for in the Permit do not comply with 40 CFR 122.47. Section 122.47(a)(2) speaks of compliance schedules for"the first NPDES permit issued to a new source or a new discharger." As the proposed Permit is in its second cycle,the justification for a compliance schedule is already in question. 40 CFR 124(i)prohibits issuing an NPDES permit to "a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards,"thereby legally constraining the Board. The Regional Board can either adopt a Permit without a compliance schedule (since there are doubtless new dischargers since the last Permit was issued, and a compliance schedule by definition permits discharges that cause or contribute to violations of water quality standards, thereby violating 40 CFR 122.4(i)), or not permit new discharges at all. However only one of these options is legally viable. Response: We concur that the Regional Board has the authority to establish numeric effluent limitations for MS4 permits. However, we have concluded that establishing these effluent limits is technically infeasible at this time. To support our conclusion we cited USEPA's guidance 'While the State Board has argued that interim limits may be included i permits consistent with the Inland Surfaces Waters Plan,by its own terms the Plan excludes from its coverage storm water discharges. Inland Surface Waters Plan,at 1,N 1. Hence,interim limits cannot be applied in the Permit: instead,compliance with water quality standards under the CWA is mandated.