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City of Stockton and County of San Joaquin Page 58 NPDES Permit CAS0083470 Response to Comments The Permit fails to contain the reasonable potential analysis required for NPDES permits in issuing a municipal storm water permit. Staff must determine whether any monitored constituent has a reasonable potential to impact receiving waters. Where reasonable potential is found,water-quality based effluent limits must be included in the permits for those pollutants. The omission of reasonable potential analyses and limits for identified pollutants having reasonable potential cannot be justified. San Francisco Regional Board staff conducted reasonable potential analyses for both the Contra Costa and San Mateo County permits. In Contra Costa County; copper, nickel, mercury, chlordane, DDT, dieldrin, diazinon, dioxin, and PCBs were found to have reasonable potential to cause or contribute to an excursion above water quality standards. In San Mateo County, those pollutants included copper,nickel,mercury, dioxin,PCBs and sediment. The federal regulations mandate that permits include water quality-based effluent limitations for each identified impairing pollutant. 40 C.F.R. Sec. 122.44(d). See also Letter from Terry Oda,EPA Region 9, to Loretta Barsamian, Region II, dated June 19, 1998 (regarding NPDES Permits for the Cities of Petaluma and Fairfield). In addition, Section 122.44(d) also requires whole effluent toxicity to be included in the permits. The proposed Permit is inconsistent with the mandates of 40 C.F.R. sec. 122.44(4) and fails to assure the achievement of water quality standards. Response: DeltaKeeper claims that 40 CFR Section 122.44(d)requires a reasonable potential analysis, water quality-based effluent limitations, and whole effluent toxicity. However, the Ninth Circuit Court has decided that the CWA does not require municipal storm water sources to strictly comply with state water quality standards, including water quality-based effluent limitations [Defenders of Wildlife v. Browner(9th Cir. 1999) 191 F.3d 1159, 1165]. The basis for water quality-based effluent limitations is CWA Section 301(b)(1)(C), which states in part, "a discharge shall achieve any more stringent limitation, including those necessary to meet water quality standards... established pursuant to any State law or regulation" [33 U.S.C. § 131l(b)(1)(C)]. The Defenders of Wildlife court found that Section 301(b)(1)(C) does not apply to municipal storm water discharges. Storm water discharges are regulated by CWA Section 402(p) [33 U.S.C. § 1342(p)]. Section 402(p)(3)(A) governs industrial discharges, and specifically requires that industrial discharges comply with the provisions of Section 301 and its implementing regulations at 40 C.F.R. § 122.44. Section 402(p)(3)(B) governs municipal storm water discharges and provides that such discharges shall "require controls to reduce the discharge of pollutants to the maximum extent practicable." [33 U.S.C. § 1342(p)(3)(B)]. The Defenders of Wildlife court specifically held that the plain language of the CWA provides that municipal storm water discharges are subject only to the MEP- based requirements contained in CWA Section 402(p)(3)(B), and need not strictly comply with state water quality standards. The provisions of 40 CFR Section 122.44(d) implement CWA Section 301,which does not apply to municipal storm water dischargers. Therefore,DeltaKeeper's claim that water quality-based effluent limitations and whole effluent toxicity must be included in the Tentative Order directly contradicts the language of the CWA and the Ninth Circuit's conclusion regarding municipal storm water requirements. The Tentative Order has narrative requirements to control pollutants, and requires the