SITE INFORMATION AND CORRESPONDENCE_CASE 2

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REGIONAL WATER BOARD RESPONSE (SWRCB/OCC File A-1846(a) and A-1846(b)) -15- PETITIONS FOR REVIEW OF Vv� E DISCHARGE REQUIREMENTS ORDER NO R5-2007-0036 (NPDES NO. CA0079154) AND TIME SCHEDULE ORDER NO. R5-2007-0037 CITY OF TRACY, WASTEWATER TREATMENT PLANT Order R5-2007-0036 is adequately protective of the aquatic life beneficial use. The Order contains numeric effluent limitations for acute toxicity, narrative limitations for chronic toxicity, and a receiving water limitation for toxicity that states the discharge shall not cause "Toxic substances in concentrations that produce detrimental physiological responses in human, plant, animal, or aquatic life. This applies regardless of whether the toxicity is caused by a single substance or the interactive effect of multiple substances." The Order also contains water quality-based effluent limitations for ammonia, dissolved oxygen, and temperature. Furthermore, the future discharge, which is nearly fwice the volume of the current discharge, will contain significantly lower mass loadings of oxygen demanding substances. Due to the new effluent limitations for BOD, TSS, ammonia, nitrate, and nitrite, the oxygen demanding substances in the discharge will be reduced by more than 1000 lbs/day. With regard to temperature, as required in conjunction with Corps Section 10 Rivers and Harbors act and CWA section 404 permitting for installation of a second outfall diffuser, the Discharger is required to conduct Section 7 consultation with the United States Fish and Wildlife Services and the National Marine Fisheries Service in compliance with the Federal Endangered Species Act to avoid impacts to special-status fish species. Consultation with the California Department of Fish and Game is also required to comply with the California Endangered Species Act. The Petitioner's contention is misplaced for several reasons. First, compliance with the toxicity and aquatic life criteria are intended to prevent mortality and harm to reproduction. There is no basis to the contention that discharging in compliance with the 2007 Permit is likely to cause a take (kill organisms or destroy habitat) of protected species. The Petitioner's claim of a risk of a take is speculative. However, as the petition concedes, any obligation to acquire a take permit is the Discharger's obligation. The Regional Water Board has no jurisdiction to authorize a take or regulate endangered species; only the Department of Fish and Game may do so. (CA Fish & Game Code, §§ 37, 39, 2080.1(c), 2081, 2081.1.) The requirement for a take permit is thus beyond the scope of issues reviewable under Water Code section 13320. Second, the Regional Water Board complied with endangered species-related notice requirements by providing notification of the tentative and adopted 2007 Permit to the California Fish and Game, the National Marine Fisheries Service and U.S. Fish and Wildlife Service. None of these agencies submitted comments or otherwise expressed concern about the 2007 Permit. Regarding the Petitioner's contention that the Regional Water Board should have initiated consultation with Department of Fish and Game, the consultation requirement of CESA was repealed effective 1 January 1999. California Environmental Quality Act (CEQA) consultation requirements, if any, are the sole obligation of the Discharger, as the lead agency.