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City of Stockton and County of San Joaquin Page 63 NPDES Permit CAS0083470 Response to Comments Finding then states that"[h]owever,the implementation of the measures set forth in this Order is intended to reduce the entry of these pollutants into storm water and their discharge to receiving waters." There are a number of BMPs that may be retroactively fitted to address such pollutant sources, such as filters, vegetative swales, end-of-pipe treatments, etc. Whether a cause of storm water pollution is a federal or state facility, vehicular traffic, natural mineral leaching, or any other source,once storm water enters the storm sewer system, it is the permittees' responsibility to treat-it to the MEP (i.e., to the maximum extent technically feasible). Response: The Tentative Order contemplates that the Permittees will meet the MEP standard through implementation of the Tentative Order's provisions and the Permittees' SWMP. As part of meeting the MEP standard, the Regional Board expects the Permittees to consider the use of filters and vegetative swales to control pollutant discharges within their jurisdictions (e.g.,to meet SUSMP requirements). 18. Comment: (DK Comment 3(b)) Finding 33 claims that it is not feasible, at this time, to establish numeric effluent limits for pollutants in storm water discharges from MS-4s. This is a conclusionary statement that is not supported in the record. The Permit must provide a factual basis for this statement. The Permit, as proposed, lacks meaningful, measurable, enforceable performance standards. Each BMP should have a numeric standard, of which the failure to meet would be enforceable under law. Numerical standards are not in conflict with the Maximum Extent Practicable standard by which mitigation of pollution in urban storm water runoff is judged,per Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999). As the San Diego Regional Water Quality Control Board has stated, "[n]othing precludes the SDRWQCB from requiring `strict compliance' with receiving water quality objectives through application of numeric limits..." Response in Opposition to Petitions For Review of California Regional Water Quality Control Board, San Diego Region, Order No. 2001-01 -NPDES No. CAS0108758 (San Diego Municipal Storm water Permit) (SWRCB/OCC Files A-1362 and A-136 2(a), at 5. The absence of numeric targets or standards in the Permit will ensure that the water quality of local waterways will become worse. The Finding further states that"[i]mplementation of performance standards and BMPs in accordance with the Permittees' SWMP and their schedules constitutes compliance with MEP requirements, and with requirements to achieve water quality objectives." This is a conclusionary unsupported statement. The Permittee's have failed to demonstrate that the BMPs in their existing permit have resulted in any improvement in receiving water quality over the past permit cycle. There is no nexus between the performance measures and BMPs in the proposed Permit and improvements in water quality. It is not enough to simply propose random BMPs and performance standards that only measure whether or not these random BMPs have been implemented. There must be substantial evidence in the record that the new BMPs and performance standards are likely to be effective in reducing storm water pollution and achieving receiving water standards. It is not clear whether the statements in Finding 33 are intended to be read as a legal conclusion or a finding of fact. In either case they are misplaced. As a legal conclusion,Finding 33 misstates the applicable law. In fact, it directly contradicts the requirements of the Clean Water Act. If it is intended as a factual finding then the finding is wholly unsupported by evidence in the record. The