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City of Stockton and County of San Joaquin Page 54 NPDES Permit CAS0083470 Response to Comments Prohibitions and Receiving Water Limitations is required. Compliance with these requirements is achieved through the successive implementation of improved BMPs as outlined in Findings 43-54 and Provision D.1. The establishment of future dates for development and submittal of program plans and action by the Regional Board or the Regional Board's Executive Officer, as appropriate, is consistent with the iterative process where the plans will be implemented during the life of the permit. 11. Comment: (DK Comment 2(f)(2)) The Permit fails to comply with CEQA and defers mitigation measures. As we discuss below, the entire permitting approach conflicts with the policy of CEQA against deferred mitigation. Finding 18 of the Permit states that "the action to adopt a NPDES permit is exempt from the provisions of the California Environmental Quality Act," according to Water Code § 13389. This is incorrect and must be changed. To the extent the permit authorizes discharges from "new sources" this exemption is not available. Moreover, even if available the exemption is narrowly limited. The Regional Board is only exempted from having to prepare CEQA documents such as in EIR or a negative declaration. It still must comply with general CEQA policies in a manner similar to other regulatory programs with functional equivalency exemptions under the CEQA guidelines. Water Code § 13389 states: "Neither the state board nor the regional boards shall be required to comply with the provisions of Chapter 3 (section 21100) of Division 13 of the Public Resources Code prior to the adoption of any waste discharge requirement, except requirements for new sources as defined in the Federal Water Pollution Control Act...." The first thing to note about this exemption, as well as the analogous exemption in the CEQA regulations, is that it is explicitly unavailable when a permit involves "requirements for new sources as defined by the Federal Water Pollution Control Act. . . ." Water Code § 13398 and 14 Cal. Code Reg. § 15263. The CWA implementing regulations define a ;,new source" as "any building, structure, facility or installation from which there may be a discharge of pollutants. 40 CFR§ 122.2. The Permit authorizes the discharge of pollutants from numerous new sources, see Findings and 56. and Development standards 19 through 24, and must therefore comply with CEQA in it entirety. DeltaKeeper believes the Board must prepare either an EIR or a negative declaration for this Permit. Development standard 26 attempts to shift responsibility for compliance with CEQA to the Permittee's. The obligation to comply with CEQA for this decision rests with the board and development Standard 26 does not fully discharge that obligation. The second thing to note about the exemption is that it exempts the board from a limited subset of CEQA's provisions namely, Chapter 3 of Division 13, which sets forth the specific requirements regarding preparation of an Environmental Impact Report for actions with potential significant impacts on the environment. See Pub. Res. Code § 21100-21108. This type of limited exemption from the specific requirement to prepare an EIR is similar to the functional equivalency exemption conferred on certified regulatory programs under Public Resources Code § 21080.5. The CEQA regulations support the principle that CEQA policy applies to NPDES permits. 14 Cal. Code Reg. § 15263 "Discharge Requirements," states: "[t]he State Water Resources Control Board and the regional boards are exempt from the requirement to prepare an EIR or a negative declaration prior to