The East County Permittees may use the approach developed by the Contra Costa Clean Water Program or an equivalent approach developed by another program during the previous permit term. (2) Conduct annual monitoring in waterways within the East County Permittees’ MS4 boundary to answer the questions in Provision Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Provision C.19.
C.19 - 4
C.19.d.ii(2)(a)-(e). Monitoring shall include, but is not limited to, Marsh Creek, downstream of Marsh Creek Reservoir, and Central and West Delta Subarea tributaries within the MS4 boundary. Permittees shall collect fifty (50) samples throughout the Permit term, with at least eight (8) samples annually, for aqueous methylmercury analysis. Samples shall be collected in each subarea to be representative of the discharge during wet and dry year conditions and analyzed using U.S. EPA- or SWAMPapproved methods. (a) What are the annual methylmercury loads from the MS4 discharge to the Central Delta, Marsh Creek, and West Delta subareas? (b) Do the methylmercury loads to each subarea meet the assigned methylmercury wasteload allocations?
(c) Are there any MS4 design features that increase mercury methylation in the discharge?
(d) What MS4 water quality controls have been implemented or are planned to be implemented to reduce methylmercury production and transport in the MS4 discharge?
(e) By January 1, 2024, address whether eutrophication and low dissolved oxygen concentrations increase methylmercury in ponded areas of Marsh Creek during low flow periods (depending on the year, low flow periods can range between mid-March and mid-November), and, if so:
(i) Under what hydrologic or seasonal circumstances do increased methylmercury concentrations reach the Delta?
(ii) Are there reasonable and foreseeable management actions to ameliorate increased methylmercury concentrations?
(3) Prepare an Annual Mercury Monitoring Plan and submit it to the Central Valley Water Board for Executive Officer approval. The monitoring plan shall describe the annual monitoring design and specify the proposed sampling locations for methylmercury sampling required under Provision C.19.d.ii.(2).
iii. Reporting
(1) Annual Mercury Monitoring Plan – by October 1, 2022, and annually thereafter with the Urban Creeks Monitoring Report due March 31. (2) Annual Report – The East County Permittees shall provide the following:
(a) Monitoring and assessment results answering the questions required under Provision C.19.d.ii.(2), and
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(b) Upon completion by the deadline in Provision C.19.d.ii.(1), submit the Control Measure Plan, including RAA.
A copy of each Annual Report shall also be submitted to the Central Valley Water Board.
(3) Pollutants of Concern Monitoring Report – The East County Permittees shall report monitoring and assessment activities relevant to the Delta Methylmercury TMDL from the past water year and planned for the next water year as a separate section within the Pollutants of Concern Monitoring Report required under Provision C.8.h.iv. A copy of each Pollutants of Concern Monitoring Report shall also be submitted to the Central Valley Water Board.
(4) Integrated Monitoring Report – The East County Permittees shall report the monitoring and assessment results as a separate section within the Integrated Monitoring Report as required under Provision C.8.h.v. A copy of each Integrated Monitoring Report shall also be submitted to the Central Valley Water Board.
(5) The East County Permittees shall report progress on the Delta Methylmercury TMDL and recommendations for the next permit reissuance as a separate section within the Report of Waste Discharge (ROWD) required by Provision C.25. A copy of the ROWD shall also be submitted to the Central Valley Water Board.
C.19.e. Delta Mercury Control Program Minimum BMPs
i. Task Description – The East County Permittees shall implement inorganic mercury reduction BMPs as well as provide ongoing education and outreach to address mercury pollution prevention and risk reduction. ii. Implementation Level – At a minimum, the East County Permittees shall implement the following inorganic mercury reduction BMPs, consistent with the Delta Methylmercury TMDL.
(1) Mercury Collection and Recycling - To minimize mercury in storm water the East County Permittees shall continue implementing:
(a) Collection and recycling of mercury containing devices and equipment at the consumer level (e.g., thermometers, thermostats, switches, bulbs); and
(b) Collection, recycling and/or diversion of mercury-containing waste products (e.g., gauges, batteries, fluorescent and other lamps, switches, relays and sensors) from the waste stream from industrial and commercial entities (e.g., auto dismantlers), and municipal facilities.
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(2) Enhanced Municipal Management Practices to Reduce Sediment Discharges - The East County Permittees shall continue to implement BMPs to minimize sediment discharges during municipal operations and municipal maintenance activities. Municipal operations and municipal maintenance activities include but are not limited to the following: storm drain drop inlet and pipeline cleaning, landscaping, road construction, road repair, and pump station cleaning.
(3) Public Education and Risk Reduction - The East County Permittees shall continue to conduct ongoing education to the public on mercury pollution prevention and mercury risk reduction. The East County Permittees shall continue to:
(a) Provide mercury pollution prevention messages to residents, commercial businesses, and industrial facilities with mercurycontaining products or emissions. This may be implemented as part of Provision C.7; and
(b) Provide notices to communities on the health risk associated with eating mercury contaminated fish. These notices shall also include the Office of Environmental Health Hazard Assessment’s fish consumption advisories.
(4) Methylmercury Controls – the East County Permittees shall implement control measures that reduce mercury methylation potential and retrofit existing BMPs that show an increase of mercury methylation. (a) New development projects shall use BMPs that either prevent an increase of methylmercury or have been shown to decrease methylmercury.
(b) For existing BMPs that increase methylmercury within subareas that are meeting the assigned wasteload allocation, retrofitting of these BMPs may occur as part of any capital improvement, redevelopment, operation, or maintenance plan as resources are available. (c) For existing BMPs that increase methylmercury within subareas that are not meeting the assigned wasteload allocation, retrofitting of these BMPs shall occur as soon as feasibly possible, but no later than the final compliance date of January 1, 2030 (or any revised final compliance date adopted by the Central Valley Water Board as part of the Delta Mercury Control Program Review).
iii. Reporting – In each Annual Report, the East County Permittees shall:
(1) Describe Mercury Collection and Recycling efforts.
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(2) List the municipal operations and municipal maintenance activity BMPs that are implemented to minimize sediment discharges.
(3) Discuss the mercury pollution prevention messages provided and (4) Summarize tasks implemented to provide notices on the health risk associated with eating mercury contaminated fish.
(5) Report on implementation of methylmercury controls required in C.19.2.ii.(4).
C.19.f. Pyrethroid Control Program
i. Task Description – The East County Permittees shall comply with the Central Valley Water Board’s conditional prohibition of the discharges of pyrethroid pesticides and associated monitoring and reporting requirements established in the Amendment to the Water Quality Control Plan for the Sacramento and San Joaquin River Basins for the control of Pyrethroid Pesticide Discharges (Resolution No. R5-2017-0057).
ii. Implementation Level – The East County Permittees shall:
(1) Continue to implement a pesticide control program as required by Provision C.9, which is consistent with Central Valley Water Board requirements for a pyrethroid management plan.
(2) Continue pesticides and toxicity monitoring as specified in Provision C.8.g.
In addition to the pollutants and organisms listed in Table 8-5, the East County Permittees shall also analyze total and particulate organic carbon, as required by the Central Valley Water Board’s Basin Plan Amendment (R5-2017-0057).
(3) Submit a baseline monitoring report by September 19, 2022, that:
(a) Summarizes the pyrethroid and toxicity monitoring results from 2012 through 2019;
(b) Assesses the compliance of the discharge with the conditional prohibition triggers in the Basin Plan established by Resolution No.
R5-2017-0057;
(c) Summarizes toxicity of water and sediment samples to the test organism Hyalella azteca; and
(d) Summarizes any other pyrethroid monitoring data collected by the East County Permittees during the above period.
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iii. Reporting – The East County Permittees shall:
(1) With the 2024 and subsequent Annual Reports, provide a progress report to document the management practices that have been implemented, evaluate pyrethroid concentrations with respect to the pyrethroid triggers, and identify effective control actions to be taken in the future. A copy shall be provided to the Central Valley Water Board.
(2) Urban Creeks Monitoring Report (UCMR) – The East County Permittees shall report monitoring, assessment results, relevant to the Pyrethroids Control Program as a separate Pyrethroid Trend Monitoring section within the 2024 UCMR required under Provision C.8.h.iii. A copy of the 2024 UCMR shall also be submitted to the Central Valley Water Board. The Pyrethroid Trend Monitoring section of the 2024 UCMR, shall include an analysis of data collected in East County Permittees receiving waters for pesticides and toxicity from 2019 through 2024 to assess the following:
(a) Whether discharges from MS4s are exceeding the acute and chronic pyrethroid triggers set forth in the Amendment to the Water Quality Control Plan for the Sacramento and San Joaquin River Basins for the Control of Pyrethroid Pesticide Discharges (Resolution No. R5-2017- 0057);
(b) Whether pyrethroid pesticides are causing or contributing to exceedances of the narrative water quality objective for toxicity in surface waters or bed sediments.
(c) The effectiveness of management practices that are implemented to reduce pyrethroid levels in discharges;
(d) Whether alternatives to pyrethroid pesticides are being discharged at concentrations with the potential to cause or contribute to exceedances of applicable water quality objectives.
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Provision C.20.
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C.20. Cost Reporting
C.20.a. Task Description – Each Permittee shall annually prepare and submit a fiscal analysis of the capital and operation and maintenance costs incurred to comply with this Order’s requirements listed in Provision C.20.b.(iii).
C.20.b. Implementation Level
i. The Permittees shall develop a cost reporting framework and methodology to perform the fiscal analysis. Permittees are encouraged to collaboratively develop the framework and methodology for purposes of efficiency, costsavings, and regionwide consistency and comparability. The framework shall consider identification of costs incurred solely to comply with this Order’s requirements as listed in Provision C.20.b.(iii) as compared to costs shared with other programs or regulatory requirements, provide meaningful data to assess costs of different program areas, and allow for comparisons and to identify trends over time.
ii. The analysis shall include a description of the source of funds that are proposed to meet the necessary expenditures, including legal restrictions on the use of such funds, and identify any funding resources shared on a regional or countywide basis. The analysis shall include the costs incurred to comply with this Permit, and an estimate of costs for the upcoming Permit year. iii. The analysis shall include the following program areas, specifically as required under this Order:
(1) Program management
(2) Municipal operations
(3) New development and redevelopment
(4) Industrial and commercial site controls
(5) Illicit discharge detection and elimination
(6) Construction site controls
(7) Public information and outreach
(8) Water quality monitoring
(9) Pesticides toxicity control
(10) Trash load reduction
(11) Mercury controls
(12) PCBs controls
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(13) Copper controls
(14) Bacteria controls
(15) Discharges associated with unsheltered homeless populations (16) Asset management plan development and implementation iv. The costs reported for each program area shall address the following categories:
(1) Total cost
(2) Capital expenditures
(3) Land costs
(4) Personnel costs
(5) Consultant costs
(6) Overhead costs
(7) Construction costs
(8) Operation and maintenance costs
(9) Other costs
C.20.c. Reporting
i. The Permittees shall submit the cost reporting framework and methodology, acceptable to the Regional Water Board Executive Officer, by June 30, 2023. ii. The Permittees shall submit their fiscal analyses annually according to the accepted cost reporting framework and methodology starting with the 2025 Annual Report.
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Provision C.21.
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C.21. Asset Management
C.21.a. Task Description – Each Permittee shall develop and implement an Asset Management Plan in order to ensure the satisfactory condition of all hard assets67 constructed during this and Previous Permit terms pursuant to Provisions C.2 Municipal Operations, C.3 New Development and Redevelopment, C.10 Trash Load Reduction, C.11 Mercury Controls, C.12 PCBs Controls, C.13 Copper Controls, C.14 Bacteria Controls for Impaired Water Bodies, C.17 Discharges Associated with Unsheltered Homeless Populations, C.18 San Mateo County Sediment Controls, and C.19 Cities of Antioch, Brentwood, and Oakley, Unincorporated Contra Costa County, and the Contra Costa County Flood Control and Water Conservation District Requirements.
C.21.b. Implementation Level – Each Permittee shall:
i. Develop an Asset Management Plan by June 30, 2025, which, at a minimum, shall include the following:
(1) A description of the asset categories to be included. (2) An inventory (or link to such an inventory) of Permittees’ existing hard assets built pursuant to the Provisions cited in Provision C.21.a, including at a minimum all LID/GSI systems and trash capture devices. (3) An Operation, Maintenance, Rehabilitation, and Replacement Plan (Asset Management O&M Plan), to evaluate data obtained through asset assessment in order to inform a strategy for prioritizing and scheduling maintenance, rehabilitation, and replacement of inventoried assets, including:
(a) A process for prioritizing and scheduling operation and maintenance activities.
(b) A process(es) for evaluating the current condition, and identifying the need for and carrying out, as appropriate, the rehabilitation and replacement of inventoried assets. The process(es) shall account for:
(i) The minimum condition necessary to achieve minimum
performance level(s) for each type of hard asset, including an assessment of stormwater volume and pollutant load reduction, necessary to comply with applicable Permit Provisions and TMDLs.
67 Hard assets are structural controls that serve a water quality function, for example: bioretention cells, pervious pavement systems, full trash capture devices, trash receptacles, and pet waste stations.
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(ii) Current performance level and effectiveness, as indicated by condition. Permittees may implement a risk-based condition assessment, or comparable assessment method, to costeffectively and -efficiently assess condition. Permittees shall base the effectiveness evaluation on, at a minimum, factors such as design, capacity, and condition and function relative to the asset’s design, intended operating conditions, and intended function. (iii) Consequence of failure and likelihood of failure. (c) An evaluation or forecast of costs necessary for the implementation of (a)-(b) above, at least through the end of the current permit term. On an ongoing basis, the Permittees shall compare these projections with available funding sources to determine the best manner in which to fund the operation, maintenance, rehabilitation, and replacement of inventoried assets. This evaluation or forecasting may supplement Permittees’ compliance with Provision C.20 Cost Reporting. (4) Recommendations for a reporting strategy, which may have a nexus with the tracking systems referenced in Permittees’ Green Infrastructure Plans, to include:
(a) Municipality-specific reporting;
(b) Assessment of the programmatic benefit from countywide or regional roll-up of collected information.
ii. Begin implementation of the Asset Management Plan no later than July 1, 2025.
iii. Reassess and update their Asset Management Plan on an as-needed basis, to address changing conditions and resources.
iv. Provide the latest version of the Asset Management Plan to Water Board staff during inspections and audits, or otherwise upon request. v. Complete a Climate Change Adaptation Report to identify potential climate change-related threats to assets and appropriate adaptation strategies. The report shall assess existing, new, and increasing threats from climate change to the condition of Permittees’ inventoried hard assets over the next 50 years, and identify approaches that Permittees may implement to address those threats, such as the modification of design standards and countywide technical guidance documents. The Climate Change Adaptation Report may be developed on an all-Permittee (regional) scale or countywide scale.
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C.21.c. Reporting
i. The Permittees shall submit their Asset Management Plans with the 2025 Annual Reports.
ii. The Permittees shall report on the implementation of their Asset Management Plans annually, starting with the 2026 Annual Reports, as follows:
(1) Provide (or link to) an inventory of all assets accounted for in the Asset Management Plan.
(a) Different categories of assets (e.g., trash controls, LID/GSI controls, bacteria controls) may be maintained in separate inventories. (2) At a minimum, for each asset in the inventory, provide the following:
category or type of water quality control; relevant design information; tributary drainage area; location; condition based on periodic inspections either by municipal or contracted staff; and operation and maintenance need (for example, while most assets may require normal operation & maintenance, Permittees may identify a subset of assets in need of rehabilitation or replacement).
This information does not have to be submitted in tabular format in the Annual Report; it may be provided externally, at the linked location identified in Provision C.21.c.ii.(1) above.
iii. The Permittees shall submit the Climate Change Adaptation Report described in Provision C.21.b.v with their 2026 Annual Reports. The Permittees may submit the Climate Change Adaptation Report(s) on an all-Permittee (regional) scale or countywide scale.
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Provision C.22.
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C.22. Annual Reports
C.22.a. The Permittees shall submit Annual Reports electronically, including a verified electronic signature (e.g., Adobe e-signature, DocuSign, or equivalent), in all cases by September 30 of each year, in the manner specified by the Water Board. Each Annual Report shall report on the previous fiscal year beginning July 1 and ending June 30. The annual reporting requirements are set forth in Provisions C.1 – C.21, with the exception of the 2022 annual reporting requirements for Provisions C.2 – C.9, which are set forth in Provisions C.2 - C.9 of the previous Permit, Order No. R2-2015-0049, as amended. The Permittees shall retain documentation as necessary to support their Annual Report. The Permittees shall make this supporting information available upon request within a timely manner, generally no more than ten business days unless otherwise agreed to by the Executive Officer.
C.22.b. The Permittees shall collaboratively develop a common annual reporting format for acceptance by the Executive Officer by March 1, 2023. The resulting Annual Report Form, once approved, shall be used by all Permittees.
The Annual Report Form may be changed by March 1 of each year for the following Annual Report, to more accurately reflect the reporting requirements of Provisions C.1 – C.21, with the agreement of the Permittees and by the approval of the Executive Officer.
C.22.c. The Permittees shall certify in each Annual Report that they are in compliance with all requirements of the Order. If a Permittee is unable to certify compliance with a requirement, it must submit, in the cover letter of the Annual Report, the reason for its failure to comply, a description and schedule of tasks necessary to achieve compliance, and an estimated date for achieving full compliance.
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Provisions C.23. – C.27.
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C.23. Modifications to this Order
The Water Board may modify or reopen this Order, or alternatively, revoke or reissue it, before the expiration date in any of the following circumstances or as authorized by law:
C.23.a. To address significant changed conditions identified in the technical or Annual Reports required by the Water Board, or through other means or communication, that were unknown at the time of the issuance of this Order; C.23.b. To incorporate applicable requirements of statewide water quality control plans adopted by the State Water Board or amendments to the Basin Plans for the San Francisco Bay and the Sacramento and San Joaquin River Basins approved by the State Water Board;
C.23.c. To comply with any applicable requirements, guidelines, or regulations issued or approved under section 402(p) or other applicable provision of the CWA, if the requirement, guideline, or regulation so issued or approved contains different conditions or additional requirements not provided for in this Order; C.23.d. To provide an alternative compliance program for exchanges of impervious surface treatment credits in Provision C.3.e.i; or
C.23.e. To incorporate applicable requirements from the Central Valley Regional Water Board’s Phase 1 Delta Mercury Control Program Review under the Basin Plan for the Sacramento and San Joaquin River Basin.
C.24. Standard Provisions
Each Permittee shall comply with all parts of the Standard Provisions contained in Attachment G of this Order.
C.25. Expiration Date
This Order expires on June 30, 2027, five years from the effective date of this Order. The Permittees must file a Report of Waste Discharge in accordance with Title 23, California Code of Regulations, not later than 180 days in advance of such date as application for reissuance of waste discharge requirements.
C.26. Rescission of Old Order
Order No. R2-2015-0049, as amended by Order No. R2-2019-0004, is hereby rescinded, except for enforcement purposes, on the effective date of this Order, which shall be July 1, 2022, provided that the Regional Administrator of U.S.
EPA, Region IX, does not object.
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C.27. Effective Date
The Effective Date of this Order and Permit shall be July 1, 2022, provided that the Regional Administrator of U.S. EPA, Region IX, does not object.
I, Thomas Mumley, Interim Executive
Officer, do hereby certify that the
foregoing is a full, true, and correct copy
of an Order adopted by the California
Regional Water Quality Control Board,
San Francisco Bay Region, on May 11,
2022.
_________________________________
Thomas Mumley
Interim Executive Officer
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Acronyms & Abbreviations
Acronyms & Abbreviations - 1
ACRONYMS & ABBREVIATIONS
ACCWP Alameda Countywide Clean Water Program
BAHM Bay Area Hydrology Model
Basin Plan Water Quality Control Plan for the San Francisco Bay Basin BAMSC Bay Area Municipal Stormwater Collaborative
BASMAA Bay Area Stormwater Management Agencies Association BMPs Best Management Practices
Caltrans California Department of Transportation
CASQA California Stormwater Quality Association
CCC California Coastal Commission
CCCWP Contra Costa Clean Water Program
CDFW California Department of Fish and Wildlife
CEDEN California Environmental Data Exchange Network
Central Valley Water
Board
California Regional Water Quality Control Board, Central Valley Region
CEQA California Environmental Quality Act
CFR Code of Federal Regulations
CSBP California Stream Bioassessment Procedures
CSCI California Stream Condition Index
CWA Federal Clean Water Act
CWC or Water Code California Water Code
DCIA Directly Connected Impervious Area
DDCP Direct Discharge Control Plan
DPR California Department of Pesticide Regulation
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Acronyms & Abbreviations
Acronyms & Abbreviations - 2
East County
Permittees or East
Contra Costa
Permittees
The cities of Antioch, Brentwood, and Oakley, and portions of Unincorporated Contra Costa County and the Contra Costa County Flood Control and Water Conservation District that are in the Central Valley Water Board’s region
ERP Enforcement Response Plan
FR Federal Register
FSURMP Fairfield-Suisun Urban Runoff Management Program GI or GSI Green Stormwater Infrastructure
GIS Geographic information System
HBANC Homebuilders Association of Northern California
HM Hydromodification Management
HMP Hydromodification Management Plan
IC/ID Illicit Connections and Illicit Discharges
ISWEBE Inland Surface Waters, Enclosed Bays, and Estuaries Plan IPM Integrated Pest Management
LID Low Impact Development
MEP Maximum Extent Practicable
MRP Municipal Stormwater Regional Permit (see Glossary for MRP 1, MRP 2, MRP 3)
MSDS Material Safety Data Sheet
MS4 Municipal Separate Storm Sewer System
MTC Metropolitan Transportation Commission
NAFSMA National Association of Flood & Stormwater Management Agencies NAICS North American Industry Classification System
NGO Non-governmental Organization
NOI Notice of Intent
NPDES National Pollutant Discharge Elimination System
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Acronyms & Abbreviations
Acronyms & Abbreviations - 3
NRDC Natural Resources Defense Council
Ocean Plan California Water Quality Control Plan for Ocean Waters of California OFEE Oil Filled Electrical Equipment
O&M Operation and Maintenance
PAHs Polynuclear Aromatic Hydrocarbons
PBDE Polybrominated Diphenyl Ether
PCA Pest Control Advisor
PCBs Polychlorinated Biphenyls
PHAB Physical Habitat (e.g., of streams)
POTW Publicly Owned Treatment Works
QAPP Quality Assurance Project Plan
RAA Reasonable Assurance Analysis
RCRA Federal Resource Conservation and Recovery Act
RMC Regional Monitoring Coalition
RMP Regional Monitoring Program
ROW Right of Way
ROWD Report of Waste Discharge
RTA Rapid Trash Assessment
SARA Federal Superfund Amendments and Reauthorization Act SCURTA Santa Clara Urban Rapid Trash Assessment
SCVURPPP Santa Clara Valley Urban Runoff Pollution Prevention Program SIC Standard Industrial Classification
SMCWPPP San Mateo Countywide Water Pollution Prevention Program SSA Solano Stormwater Alliance
SSID Stressor Source Identification
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Acronyms & Abbreviations
Acronyms & Abbreviations - 4
SOP Standard Operating Procedure
SWAMP Surface Water Ambient Monitoring Program
SWPPP Stormwater Pollution Prevention Plan
State Water Board State Water Resources Control Board
TIE Toxicity Identification Evaluation
TMDLs Total Maximum Daily Loads
TSCA Federal Toxic Substances Control Act
TST Test of Significant Toxicity
TU Toxicity Units
UCMR Urban Creeks Monitoring Report
U.S. EPA Unites States Environmental Protection Agency
Water Board San Francisco Bay Regional Water Quality Control Board WLAs Wasteload Allocations
WQBEL Water Quality Based Effluent Limitation
WQS Water Quality Standards
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Glossary
Glossary - 1
GLOSSARY
Actual Discharge Observed or documented flow of unauthorized, illicit, or pollutantcontaining stormwater discharges to the MS4.
Arterial Roads
Freeways, multilane highways, and other important roadways that supplement the Interstate System. Arterial roads connect, as directly as practicable, principal urbanized areas, cities, and industrial centers.
Beneficial Uses
The uses of water of the State protected against degradation, such as domestic, municipal, agricultural and industrial supply; power generation; recreation; aesthetic enjoyment; navigation and preservation of fish and wildlife, and other aquatic resources or preserves.
Base Course
A layer of constructed material (typically aggregate base – a construction aggregate typically composed of crushed rock or of recycled asphalt or concrete, capable of passing through a sieve with a certain pore diameter) located above the subbase course and/or subgrade course, and below the surface layer (which consists of a wearing course, and sometimes an extra binder course), applied to serve one or more functions, such as supporting the surface layer and distributing load.
Bituminous Surface
Treatment
A thin protective wearing surface, which can provide, among other services, a waterproof layer to protect underlying pavement and a filler for existing cracks or raveled surfaces. This includes, but is not limited to:
Chip seal – a single layer of asphalt emulsion binder that is covered by embedded aggregate;
Slurry seal – a thick, cold mix paving treatment that contains aggregates, asphalt emulsion, binder and fines, water, and additives; and
Seal coat – an emulsion containing liquid asphalt and/or coal tar, mineral fillers and other anti-oxidation additives and admixtures. Cape seal – a chip seal covered with a slurry or micro-surface, applied to existing pavements. Micro-surfacing is a polymer-modified cold-mix paving system that begins as a mixture of dense-graded aggregate, asphalt emulsion, water and mineral fillers.
Collector Roads
Major and minor roads that connect local roads with arterial roads.
Collector roads provide less mobility than arterial roads at lower speeds and for shorter distances.
Commercial
Development
Development or redevelopment to be used for commercial purposes, such as office buildings, retail or wholesale facilities, restaurants, shopping centers, hotels, and warehouses.
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Glossary
Glossary - 2
Construction Site
Any project, including projects requiring coverage under the Construction General Permit, that involves soil-disturbing activities including, but not limited to, grubbing, clearing, grading, paving, disturbances to ground such as stockpiling, leveling, fill, and excavation. Construction sites include all sites with disturbed or graded land area not protected by vegetation, or pavement, that are subject to a building or grading permit.
Construction sites are considered active until site surfaces are permanently stabilized to control erosion and other polluted stormwater discharges effectively.
Conditionally Exempted
Non-Stormwater
Discharge
Non-stormwater discharges that are prohibited by A.1. of this Permit, unless such discharges are authorized by a separate NPDES permit or are not in violation of WQS because appropriate BMPs have been implemented to reduce pollutants to the maximum extent practicable, consistent with Provision C.15.
Discharger
Any responsible party or site owner or operator within the Permittees’ jurisdiction whose site discharges stormwater runoff, or a non-stormwater discharge.
Detached Single-family
Home Project
The building of one single new house or the addition and/or replacement of impervious surface associated with one single existing house, which is not part of a larger plan of development.
Development
Construction, rehabilitation, redevelopment, or reconstruction of any public or private residential project (whether single-family, multi-unit, or planned unit development); or industrial, commercial, retail or other nonresidential project, including public agency projects.
Estate Residential
Development Development zoned for a minimum 1 acre lot size.
Emerging Pollutants
Pollutants in water that either:
(1) May not have been thoroughly studied to date but are suspected by the scientific community to be a source of impairment of beneficial uses and/or present a health risk; or
(2) Are not yet part of a monitoring program.
Erosion
The diminishing or wearing away of land due to wind, or water. Often the eroded debris (silt or sediment) becomes a pollutant via stormwater runoff.
Erosion occurs naturally, but can be intensified by land disturbing and grading activities such as farming, development, road building, and timber harvesting.
Floor Area Ratio
The ratio of the total floor area on all floors of all buildings at a project site (except structures or floors dedicated to parking) to the total project site area.
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Glossary
Glossary - 3
Full Trash Capture
Device
A Full Capture Device or System is a treatment control, or series of treatment controls, including, but not limited to, a multi-benefit project (as defined in the Trash Amendments) or a low-impact development control that traps all particles that are 5 mm or greater, and has a design treatment capacity that is either: a) of not less than the peak flow rate, Q, resulting from a one-year, one-hour storm in the subdrainage area, or b) appropriately sized to, and designed to carry at least the same flows as, the corresponding storm drain.
General Permits
Waste Discharge Requirements or NPDES Permits containing requirements that are applicable to a class or category of dischargers.
The State has general stormwater permits for construction sites that disturb soil of 1 acre or more; industrial facilities; `Phase II smaller municipalities (including nontraditional Small MS4s, which are governmental facilities, such as military bases, public campuses, and prison and hospital complexes); and small linear underground/overhead projects disturbing at least 1 acre, but less than 5 acres (including trenching and staging areas).
Grading The cutting and/or filling of the land surface to a slope or elevation.
Green Infrastructure
Infrastructure that uses vegetation, soils, and natural processes to manage water and create healthier urban environments. At the scale of a city or county, green infrastructure refers to the patchwork of natural areas that provides habitat, flood protection, cleaner air, and cleaner water. At the scale of a neighborhood or site, green infrastructure refers to stormwater management systems that mimic nature by soaking up and storing water.
Gross Density
The total number of residential units divided by the acreage of the entire site area, including land occupied by public right-of-ways, recreational, civic, commercial and other non-residential uses.
Hydrologic source
control measures
Site design techniques that minimize and/or slow the rate of stormwater runoff from the site.
Hydromodification
The modification of a stream’s hydrograph, caused in general by increases in flows and durations that result when land is developed (e.g., made more impervious). The effects of hydromodification include, but are not limited to, increased bed and bank erosion, loss of habitat, increased sediment transport and deposition, and increased flooding.
Illicit Discharge
Any discharge to a municipal separate storm sewer (storm drain) system (MS4) that is prohibited under local, State, or federal statutes, ordinances, codes, or regulations. The term illicit discharge includes all nonstormwater discharges not composed entirely of stormwater and discharges that are identified under Section A. (Discharge Prohibitions) of this Permit. The term illicit discharge does not include discharges that are regulated by an NPDES permit (other than the NPDES permit for discharges from the MS4) or authorized by the Executive Officer.
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Impervious Surface
A surface covering or pavement of a developed parcel of land that prevents the land’s natural ability to absorb and infiltrate rainfall/stormwater. Impervious surfaces include, but are not limited to, roof tops; walkways; patios; driveways; parking lots; storage areas; impervious concrete and asphalt; and any other continuous watertight pavement or covering. Landscaped soil and pervious pavement, including pavers with pervious openings and seams, underlain with pervious soil or pervious storage material, such as a gravel layer sufficient to hold at least the C.3.d volume of rainfall runoff are not impervious surfaces. Open, uncovered retention/detention facilities shall not be considered as impervious surfaces for purposes of determining whether a project is a Regulated Project under Provisions C.3.b. and C.3.g. Open, uncovered retention/detention facilities shall be considered impervious surfaces for purposes of runoff modeling and meeting the Hydromodification Standard.
Industrial Development
Development or redevelopment of property to be used for industrial purposes, such as factories; manufacturing buildings; and research and development parks.
Infill Site
A site in an urbanized area where the immediately adjacent parcels are developed with one or more qualified urban uses or at least 75% of the perimeter of the site adjoins parcels that are developed with qualified urban uses and the remaining 25% of the site adjoins parcels that have previously been developed for qualified urban uses and no parcel within the site has been created within the past 10 years.
Infiltration Device
Any structure that is deeper than wide and designed to infiltrate stormwater into the subsurface, and, as designed, bypass the natural groundwater protection afforded by surface soil. These devices include dry wells, injection wells, and infiltration trenches (includes french drains).
Integrated Pest
Management68
An ecosystem-based strategy that focuses on long-term prevention of pests or their damage through a combination of techniques such as biological control, habitat manipulation, modification of cultural practices, and use of resistant varieties. Pesticides are used only after monitoring indicates they are needed according to established guidelines (and when it has been concluded that the use of non-chemical controls is insufficient), and treatments are made with the goal of removing only the target organism. Pest control materials are selected and applied in a manner that minimizes risks to human health, beneficial and nontarget organisms, and the environment (DPR, 2018).
68 Roadmap for Integrated Pest Management, CDPR 2018,
https://www.cdpr.ca.gov/docs/pestmgt/ipm_roadmap.pdf
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Integrated Pest
Management, Biological
Controls
Biological controls are the beneficial action of predators, parasites, pathogens, and competitors to control pests and pest damage. These controls rely on predation, parasitism, herbivory, or other natural mechanisms, but typically require active human intervention, such as releasing ladybugs.
Integrated Pest
Management, Least
Hazardous Chemical
Controls
Chemical controls involve targeted application of traditional chemical pesticides, as well as alternative products, such as oils and soaps.
Integrated Pest
Management, Cultural
Controls
Cultural controls reduce pest establishment, reproduction, dispersal, and survival. Examples include scheduling planting, irrigation, and fertilization; soil solarization; and planting native vegetation and xeriscape to reduce water, pesticide, and fertilizer needs. Changing irrigation practices can reduce pest problems, since too much water can increase root disease and weeds.
Integrated Pest
Management,
Mechanical and Physical
Controls
Mechanical and physical controls kill pests directly, exclude pests, or make the environment unsuitable for pests. Physical controls may involve manual removal of pests or mowing. Barriers (screens, mesh, caulk and other sealants) are physical controls that keep pests out of buildings and structures, and may be used to enclose sensitive plants. Mulch is a physical control that inhibits weed growth. Rodent traps are mechanical controls.
Integrated Pest
Management, Pest
Action Threshold
The point at which pest populations or environmental conditions indicate that one or more pest control actions must be taken. Sighting a single pest does not always mean control is needed. The level at which pests will either become an economic or health threat is critical to guide appropriate, least toxic pest control decisions.
Joint Stormwater
Treatment Facility
A stormwater treatment facility built to treat the combined runoff from two or more Regulated Projects located adjacent to each other.
Local Roads
Roads that provide limited mobility and are the primary access to residential areas, businesses, farms, and other local areas. Local roads offer the lowest level of mobility and usually contain no bus routes. Service to through traffic movement usually is deliberately discouraged in local roads.
Maximum Extent
Practicable (MEP)
A standard for implementation of stormwater management actions to reduce pollutants in stormwater. CWA 402(p)(3)(B)(iii) requires that municipal stormwater permits “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the state determines appropriate for the control of such pollutants.” Also see State Water Board Order WQ 2000-11.
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Mixed-use Development
or Redevelopment
Development or redevelopment of property to be used for two or more different uses, all intended to be harmonious and complementary. An example is a high-rise building with retail shops on the first 2 floors, office space on floors 3 through 10, apartments on the next 10 floors, and a restaurant on the top floor.
MRP 1 Order No. R2-2009-0074, as amended by Order No. R2-2011-0083.
MRP 2 or Previous
Permit Order No. R2-2015-0049, as amended by Order No. R2-2019-0004.
MRP 3, Permit, or Order Order No. R2-2022-0018.
Municipal Separate
Storm Sewer System
(MS4)
A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains), as defined in 40 CFR 122.26(b)(8):
(1) Owned or operated by a state, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to state law...including special districts under state law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization or a designated and approved management agency under section 208 of the CWA) that discharges into waters of the United States;
(2) Designed or used for collecting or conveying stormwater; (3) Which is not a combined sewer; and
(4) Which is not part of a Publicly Owned Treatment Works (POTW), as defined in 40 CFR 122.2.
Municipal Corporation
Yards, Vehicle
Maintenance/Material
Storage Facilities/
Any Permittee-owned or -operated facility, or portion thereof, that:
(1) Conducts industrial activity, operates or stores equipment, and materials;
(2) Performs fleet vehicle service/maintenance including repair, maintenance, washing, or fueling; and/or
(3) Performs maintenance and/or repair of machinery/equipment; National Pollutant
Discharge Elimination
System (NPDES)
A national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements, under CWA sections 307, 402, 318, and 405.
Notice of Intent (NOI) The application form by which dischargers seek coverage under General Permits, unless the General Permit requires otherwise.
Parking Lot Land area or facility for the parking or storage of motor vehicles used for business, commerce, industry, or personal use.
Permittee/Permittees Municipal agency/agencies that are named in and subject to the requirements of this Permit.
Permit Effective Date
The date at least 45 days after Permit adoption, or other date as specified, provided the Regional Administrator of U.S. EPA Region 9 has no objection, whichever is later.
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Pervious Pavement
A pavement system consisting of permeable interlocking concrete pavement (PICP), pervious or permeable concrete unit pavers, pervious grid pavements, pervious concrete, porous asphalt, turf block, grasscrete, and bricks and stones, set on a gravel base with gravel joints, which stores and infiltrates rainfall at a rate equal to immediately surrounding unpaved, landscaped areas, or that stores and infiltrates the rainfall runoff volume described in Provision C.3.d.
Point Source
Any discernible, confined, and discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operations, landfill leachate collection systems, vessel, or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff.
Pollutants of Concern
Pollutants that impair waterbodies listed under CWA section 303(d), pollutants associated with the land use type of a development, including pollutants commonly associated with urban runoff. Pollutants commonly associated with stormwater runoff include, but are not limited to, total suspended solids; sediment; pathogens (e.g., bacteria, viruses, protozoa); heavy metals (e.g., copper, lead, zinc, and cadmium); petroleum products and PAHs; synthetic organics (e.g., pesticides, herbicides, and PCBs); nutrients (e.g., nitrogen and phosphorus fertilizers); oxygen-demanding substances (e.g., decaying vegetation and animal waste); and trash.
Potable Water Water that is safe for domestic use, drinking, and cooking.
Potential Discharge
Conditions with the potential to result in unauthorized, illicit, or pollutantcontaining stormwater discharges to the MS4. These include, but are not limited to, housekeeping issues, inadequate waste or materials management, evidence of actual discharges that are not ongoing, lack of emergency response plans, lack of BMPs, inadequate BMPs, and inappropriate BMPs.
Pre-Project Runoff
Conditions
Stormwater runoff conditions that exist onsite immediately before development activities occur. This definition is not intended to be interpreted as that period before any human-induced land activities occurred. This definition pertains to redevelopment as well as initial development.
Public Development
Any construction, rehabilitation, redevelopment or reconstruction of any public agency project, including but not limited to, libraries, office buildings, roads, and highways.
Redevelopment
Land-disturbing activity that results in the creation, addition, or replacement of exterior impervious surface area on a site on which some past development has occurred.
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Regional Monitoring
Program (RMP)
A monitoring program aimed at determining San Francisco Bay Region receiving water conditions. The program was established in 1993 through an agreement among the Water Board, wastewater discharger agencies, dredgers, Municipal Stormwater Permittees and the San Francisco Estuary Institute to provide regular sampling of Bay sediments, water, and organisms for pollutants. The program is funded by the dischargers and managed by the San Francisco Estuary Institute.
Regional Project A regional or municipal stormwater treatment facility that discharges into the same watershed that the Regulated Project does.
Regulated Projects Development projects as defined in Provision C.3.b.ii.
Residential Housing
Subdivision
Any property development of multiple single-family homes or of dwelling units intended for multiple families/households (e.g., apartments, condominiums, and town homes).
Retrofitting Installing improved pollution control devices at existing facilities to attain water quality objectives.
Sediments Soil, sand, and minerals washed from land into water, usually after rain.
Solid Waste All putrescible and nonputrescible solid, semisolid, and liquid wastes as defined by California Government Code Section 68055.1 (h).
Source Control BMPs
Land use or site planning practices, or structural or nonstructural measures, that aim to prevent runoff pollution by reducing the potential for contact with rainfall runoff at the source of pollution. Source control BMPs minimize the contact between pollutants and urban runoff.
Stormwater Pumping
Station
Mechanical device (or pump) that is installed in MS4s or pipelines to discharge stormwater runoff and prevent flooding.
Stormwater Treatment
System
Any engineered system designed to remove pollutants from stormwater runoff by settling, filtration, biological degradation, plant uptake, media absorption/adsorption or other physical, biological, or chemical process.
This includes landscape-based systems such as grassy swales and bioretention units as well as proprietary systems.
Surface Water Ambient
Monitoring Program
(SWAMP)
The State Water Board’s program to monitor surface water quality; coordinate consistent scientific methods; and design strategies for improving water quality monitoring, assessment, and reporting.
Total Maximum Daily
Loads (TMDLs)
The maximum amount of a pollutant that can be discharged into a waterbody from all sources (point and nonpoint) and still maintain WQS.
Under CWA section 303(d), TMDLs must be developed for all waterbodies that do not meet WQS even after application of technology-based controls, more stringent effluent limitations required by a state or local authority, and other pollution control requirements such as BMPs.
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Toxicity Identification
Evaluation (TIE)
TIE is a series of laboratory procedures used to identify the chemical(s) responsible for toxicity to aquatic life. These procedures are designed to decrease, increase, or transform the bioavailable fractions of contaminants to assess their contributions to sample toxicity. TIEs are conducted separately on water column and sediment samples.
Trash and Litter
Trash consists of litter and particles of litter. California Government Code Section 68055.1 (g) defines litter as all improperly discarded waste material, including, but not limited to, convenience food, beverage, and other product packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the State, but not including the properly discarded waste of the primary processing of agriculture, mining, logging, sawmilling, or manufacturing.
Treatment Any method, technique, or process designed to remove pollutants and/or solids from polluted stormwater runoff, wastewater, or effluent.
Waste Load Allocations
(WLAs)
A portion of a receiving water’s TMDL that is allocated to one of its existing or future point sources of pollution.
Water Quality Control
Plan (Basin Plan)
The Water Quality Control Plan for the San Francisco Bay Basin (Basin Plan) is the Board's master water quality control planning document. It designates beneficial uses and water quality objectives for waters of the State within the Region, including surface waters and groundwater. It also includes programs of implementation to achieve water quality objectives and discharge prohibitions. The Basin Plan was duly adopted and approved by the State Water Board, U.S. EPA, and the Office of Administrative Law where required.
Water Quality Objectives
The limits or levels of water quality elements or biological characteristics established to reasonably protect the beneficial uses of water or to prevent pollution problems within a specific area. Water quality objectives may be numeric or narrative.
Water Quality Standards
State-adopted and U.S. EPA-approved water quality standards for waterbodies. The standards prescribe the use of the waterbody and establish the WQS that must be met to protect designated uses. Water quality standards also include the federal and State anti-degradation policy.
Water Year
The Water Year spans twelve months and begins on October 1 of each year. It is designated by the calendar year in which it ends. For example, the 2023 Water Year starts on October 1, 2022, and ends on September 30, 2023.
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Wedge Grinding
The process of milling the asphalt areas directly adjacent to concrete curbs, gutter pans and metal structures (e.g., manhole covers) to a specified width and depth. To tie into the elevations of the existing concrete and metal structures, asphalt is removed along the perimeter to allow proper depth of asphalt on the edge and to preserve the appropriate drainage patterns on the asphalt surface.
Wet Season October 1 of a given year through April 30 of the following year.
Attachment A - 1
ATTACHMENT A
MUNICIPAL REGIONAL STORMWATER PERMIT
FACT SHEET
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
Attachment A - 2
FACT SHEET/RATIONALE
TECHNICAL REPORT
for
ORDER NO. R2-2022-0018
NPDES Permit No. CAS612008
Municipal Regional Stormwater NPDES Permit
and
Waste Discharge Requirements
for
The cities of Alameda, Albany, Berkeley, Dublin, Emeryville, Fremont, Hayward, Livermore, Newark, Oakland, Piedmont, Pleasanton, San Leandro, and Union City, Alameda County, the Alameda County Flood Control and Water Conservation District, and Zone 7 of the Alameda County Flood Control and Water Conservation District, which have joined together to form the Alameda Countywide Clean Water Program (Alameda Permittees)
The cities of Antioch, Brentwood, Clayton, Concord, El Cerrito, Hercules, Lafayette, Martinez, Oakley, Orinda, Pinole, Pittsburg, Pleasant Hill, Richmond, San Pablo, San Ramon, and Walnut Creek, the towns of Danville and Moraga, Contra Costa County, the Contra Costa County Flood Control and Water Conservation District, which have joined together to form the Contra Costa Clean Water Program (Contra Costa Permittees)
The cities of Campbell, Cupertino, Los Altos, Milpitas, Monte Sereno, Mountain View, Palo Alto, San Jose, Santa Clara, Saratoga, and Sunnyvale, the towns of Los Altos Hills and Los Gatos, the Santa Clara Valley Water District, and Santa Clara County, which have joined together to form the Santa Clara Valley Urban Runoff Pollution Prevention Program (Santa Clara Permittees) The cities of Belmont, Brisbane, Burlingame, Daly City, East Palo Alto, Foster City, Half Moon Bay, Menlo Park, Millbrae, Pacifica, Redwood City, San Bruno, San Carlos, San Mateo, and South San Francisco, the towns of Atherton, Colma, Hillsborough, Portola Valley, and Woodside, the San Mateo County Flood and Sea Level Rise Resiliency District, and San Mateo County, which have joined together to form the San Mateo Countywide Water Pollution Prevention Program (San Mateo Permittees)
The cities of Fairfield, Suisun City, and Vallejo, and the Vallejo Sanitation & Flood Control District which have joined together to form the Solano Stormwater Alliance (Solano Permittees)
Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
Attachment A - 3
Fact Sheet Table of Contents
ATTACHMENT A ............................................................................................................ 1 Fact Sheet Table of Contents .......................................................................................... 3 I. CONTACT INFORMATION ...................................................................................... 5 II. PERMIT GOALS AND PUBLIC PROCESS .............................................................. 5 A. Goals ..................................................................................................................... 5 B. Public Process ....................................................................................................... 5 C. Implementation ...................................................................................................... 5 III. BACKGROUND ........................................................................................................ 6 A. Early Permitting Approach ..................................................................................... 6 B. Merging Permit Requirements and Specific Requirements Previously Contained in Stormwater Management Plans ..................................................................7 C. Current Permit Approach ....................................................................................... 8 IV. ECONOMIC ISSUES AND WATER CODE SECTION 13241 ................................ 10 A. Past, Present, and Probable Future Uses of Water and Environmental Characteristics of the Hydrographic Unit Under Consideration ....................13 B. Water Quality Conditions Reasonably Achievable .............................................. 13 C. Housing Needs .................................................................................................... 14 D. Recycled Water Needs ........................................................................................ 14 E. Economic Considerations .................................................................................... 15 V. RELEVANT STATUTES, REGULATIONS, PLANS AND POLICIES ...................... 48 A. Legal Authorities .................................................................................................. 48 B. State and Federal Regulations, Policies, and Plans ............................................ 49 C. State Mandates ................................................................................................... 81 D. Statewide Industrial and Construction Stormwater General Permits ................... 92 E. Regulated Parties ................................................................................................ 93 F. Permit Coverage ................................................................................................. 93 VI. PERMIT PROVISIONS ........................................................................................... 94 A. Discharge Prohibitions ......................................................................................... 94 B. Receiving Water Limitations ................................................................................ 95 C. Provisions ............................................................................................................ 96 C.1. Compliance with Discharge Prohibitions and Receiving Water Limitations ... 96 C.2. Municipal Operations .................................................................................. 105 C.3. New Development and Redevelopment ...................................................... 110 C.4. Industrial and Commercial Site Controls ..................................................... 159 Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
Attachment A - 4
C.5. Illicit Discharge Detection and Elimination................................................... 164 C.6. Construction Site Control ............................................................................ 170 C.7. Public Information and Outreach ................................................................. 177 C.8. Water Quality Monitoring ............................................................................. 180 C.9. Pesticides Toxicity Control .......................................................................... 227 C.10. Trash Load Reduction ................................................................................. 230 C.11. Mercury Controls ......................................................................................... 250 C.12. PCBs Controls ............................................................................................. 266 C.13. Copper Controls .......................................................................................... 293 C.14. Bacteria Controls ......................................................................................... 296 C.15. Exempted and Conditionally Exempted Discharges .................................... 312 C.16. Discharges to Areas of Special Biological Significance ............................... 324 C.17. Discharges Associated with Unsheltered Homeless Populations ................ 326 C.18. Control of Sediment Discharges from Coastal San Mateo County Roads .. 330 C.19. Cities of Antioch, Brentwood, and Oakley, Unincorporated Contra Costa County, and the Contra Costa County Flood Control and Water Conservation District Requirements .................................................................................. 332 C.20. Cost Reporting ............................................................................................ 342 C.21. Asset Management ..................................................................................... 344 VII. Attachment G: Standard NPDES Stormwater Permit Provisions .......................... 351 Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
Attachment A - 5
I. CONTACT INFORMATION
Water Board Staff Contact: Derek Beauduy, 1515 Clay Street, Suite 1400, Oakland, CA 94612, 510-622-2348, 510-622-2460 (fax), email:
[email protected]
II. PERMIT GOALS AND PUBLIC PROCESS
A. Goals
The Goals for the Municipal Regional Stormwater Permit (hereinafter, the Permit) include:
(1) Continue regulating six Phase I municipal stormwater NPDES permits in one consistent permit that is regional in scope.
(2) Include concrete, rigorous, and enforceable requirements building on the expertise gained during the previous permit cycle. Continue requiring (A) stormwater management actions, (B) a specific level of implementation for each action or set of actions, and (C) reporting and effectiveness evaluation requirements for each action sufficient to determine compliance. (3) Incorporate the Stormwater Management Plan level of detail and specificity into the Permit. Stormwater Management Plans have always been considered integral to the municipal stormwater NPDES permits, but have not received the level of public review in the adoption process necessary relative to their importance in adequate stormwater pollutant management implementation. (4) Implement and enhance actions to control federal Clean Water Act (CWA) section 303(d)-listed pollutants, pollutants of concern, and achieve Waste Load Allocations adopted under Total Maximum Daily Loads.
(5) Implement more specific and comprehensive stormwater monitoring, including monitoring for 303(d)-listed pollutants.
B. Public Process
Water Board staff conducted stakeholder meetings with the Permittees and other interested parties to develop this Permit. These meetings included Water Board staff, representatives of the Permittees, the U.S. Environmental Protection Agency (U.S. EPA), and representatives of environmental groups.
C. Implementation
It is the Water Board's intent that this Permit shall ensure attainment of applicable water quality objectives and protection of the beneficial uses of receiving waters and associated habitat. This Permit requires that discharges shall not cause exceedances of water quality objectives nor shall they cause certain conditions to Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
Attachment A - 6
occur that create a condition of nuisance or water quality impairment in receiving waters. Accordingly, the Water Board is requiring that these standard requirements be addressed through the implementation of technically and economically feasible control measures to reduce pollutants in stormwater discharges to the maximum extent practicable as provided in CWA section 402(p). In addition, this Permit contains water quality-based effluent limitations to implement TMDLs. Compliance with the Discharge Prohibitions, Receiving Water Limitations, and Provisions of this Permit is considered compliance with the requirements of this Permit. If these measures, in combination with controls on other point and nonpoint sources of pollutants, do not result in attainment of applicable water quality objectives, the Water Board may invoke Provision C.1. and C.18 to impose additional conditions that require implementation of additional control measures.
Each of the Permittees is individually responsible for adoption and enforcement of ordinances and policies, for implementation of assigned control measures or best management practices (BMPs) needed to prevent or reduce pollutants in stormwater, and for providing funds for the capital, operation, and maintenance expenditures necessary to implement such control measures/BMPs within its jurisdiction. Each Permittee is also responsible for its share of the costs of the areawide component of the countywide program to which the Permittee belongs.
Enforcement actions concerning non-compliance with the Permit will be pursued against individual Permittee(s) responsible for specific violations of the Permit.
III. BACKGROUND
A. Early Permitting Approach
The CWA was amended in 1987 to address urban stormwater runoff pollution of the nation’s waters. One requirement of the amendment was that many municipalities throughout the United States were obligated for the first time to obtain National Pollutant Discharge Elimination System (NPDES) permits for discharges of urban runoff from their Municipal Separate Storm Sewer Systems (MS4s). In response to the CWA amendment (and the pending federal NPDES regulations that would implement the amendment), the Water Board issued municipal stormwater Phase I permits in the early 1990s. These permits were issued to the entire county-wide urban areas of Santa Clara, Alameda, San Mateo and Contra Costa counties, rather than to individual cities over 100,000 population threshold. The cities chose to collaborate in countywide groups, pool resources and expertise, and share information, public outreach, and monitoring costs, among other tasks.
During the early permitting cycles, the county-wide programs developed many of the implementation specifics that were set forth in their Stormwater Pollution Prevention Management Plans (Plans). The permit orders were relatively simple documents that referred to the Plans for implementation details. Often specific Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
Attachment A - 7
aspects of permit and Plan implementation evolved during the five-year permit cycle without significant public review and comment.
B. Merging Permit Requirements and Specific Requirements Previously Contained in Stormwater Management Plans
U.S. EPA stormwater rules for Phase I stormwater permits envisioned a process in which municipal stormwater management programs contained the detailed BMP and specific level of implementation information, and are reviewed and approved by the permitting agency before the municipal NPDES stormwater permits are adopted. The previous permits established a definition of a stormwater management program and required each Permittee to submit an urban runoff management plan and annual work plans for implementing its stormwater management program. An advantage to this approach was that it provided flexibility for Permittees to tailor their stormwater management programs to reflect local priorities and needs. However, Water Board staff found it difficult to determine Permittees’ compliance with the permits, due to the lack of specific requirements and measurable outcomes of some required actions in the plans.
Moreover, these stormwater management plans and amendments thereto made by the Permittees were not subject to public input, contrary to the U.S. Ninth Circuit Court’s decision in the Phase II stormwater context that public participation is required for a stormwater management plan, because the substantive information about how an operator will reduce pollutants to the maximum extent possible was found in the stormwater management plan rather than the permit itself (Environmental Defense Center v. EPA (9th Cir. 2003) 344 F.3d 832, 857.).
This Permit continues to modify these previous approaches by establishing the stormwater management program requirements and defining up front, as part of the permit development process, the minimum acceptable elements of the municipal stormwater management program. The advantages of this approach are that it satisfies the public involvement requirements of both the CWA and the California Water Code (CWC). An advantage for Permittees and the public is that the permit requirements are known at the time of permit issuance and not determined later through an iterative review and approval of stormwater management plan amendments, during which time was spent more on getting an acceptable plan than on-the-ground actions. While it may still be necessary to amend the Permit prior to expiration where allowed, any need to do this should be minimized.
This Permit does not require approval of all Permittees’ stormwater management programs or annual reports as part of the administration of the Permit. To do so would require significantly increased staff resources. Instead, minimum measures have been established to simplify compliance determinations for the Water Board and make Permittees’ performance more transparent to the public. Each Permit provision and its reporting requirements are written with transparency and Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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(comparative) administrative efficiency in mind. That is, each provision establishes the required actions, minimum implementation levels (i.e., minimum percentage of facilities inspected annually, escalating enforcement, reporting requirements for tracking projects, number of monitoring sites), and specific reporting elements to substantiate that these implementation levels have been met. Water Board staff will evaluate each Permittee’s compliance through annual report review and the audit process.
The challenge in drafting the Permit is to set the rigorous enforceable baseline described above, while still allowing flexibility to numerous Permittees with a range of sizes and resources. To achieve this, the Permit frequently prescribes minimum measurable outcomes, while allowing Permittees to tailor the approaches they use to meet those outcomes. Enforceability has been found to be a critical aspect of the Permit. A balance between flexibility and enforceability has been crafted into the Permit.
C. Current Permit Approach
This Permit specifies the following: 1) requirements to effectively prohibit nonstormwater discharges into the storm drain system, pursuant to CWA § 402(p)(3)(B)(ii); 2) technology-based effluent limitations that require controls to reduce the discharge of pollutants to the “maximum extent practicable” (MEP)1 pursuant to CWA § 402(p)(3)(B)(iii); and 3) water quality-based effluent limitations (WQBELs) pursuant to CWA § 402(p)(3)(B)(iii), which authorizes the inclusion of “such other provisions as the Administrator or the State determines appropriate for the control of…pollutants,” for pesticides, trash, mercury, PCBs, bacteria, and sediment, in addition to technology-based effluent limitations. WQBELs for these pollutants are appropriate for control because water quality standards are not being met and these pollutants have impaired waters. The Permit includes requirements for the following components:
Provision A. Discharge Prohibitions
1 The CWA and its regulations have not specifically defined “MEP”; rather, it is a flexible and evolving standard. Congress established this flexible MEP standard so that administrative bodies would have “the tools to meet the fundamental goals of the Clean Water Act in the context of stormwater pollution”(Building Industry Ass’n of San Diego County v. State Water Resources Control Board (2004) 124 Cal.App.4th 866, 884.). This standard was designed to allow permit writers flexibility to tailor permits to the site-specific nature of MS4s and to use a combination of pollution controls that may be different in different permits (In re City of Irving, Texas, Municipal Storm Sewer System (July 16, 2001) 10 E.A.D. 111 (E.P.A.).). The MEP standard is also expected to evolve in light of programmatic improvements, new source control initiatives, and technological advances that serve to improve the overall effectiveness of stormwater management programs in reducing pollutant loading to receiving waters. This is consistent with U.S. EPA’s interpretation of stormwater management programs. As explained by U.S. EPA in its 1990 rulemaking, “EPA anticipates that storm water management programs will evolve and mature over time” (55 Fed.Reg. 47990, 48052 (Nov. 16, 1990)).
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Provision B. Discharge Prohibitions and Receiving Water Limitations Provision C.1. Compliance with Discharge Prohibitions and Receiving Water Limitations
Provision C.2. Municipal Operations
Provision C.3. New Development and Redevelopment
Provision C.4. Industrial and Commercial Site Controls Provision C.5. Illicit Discharge Detection and Elimination Provision C.6. Construction Site Control
Provision C.7. Public Information and Outreach
Provision C.8. Water Quality Monitoring
Provision C.9. Pesticides Toxicity Control
Provision C.10. Trash Load Reduction
Provision C.11. Mercury Controls
Provision C.12. PCBs Controls
Provision C.13. Copper Controls
Provision C.14. Bacteria Control for Impaired Water Bodies Provision C.15. Exempted and Conditionally Exempted Discharges Provision C.16. Discharges to Areas of Special Biological Significance Provision C.17. Discharges Associated with Unsheltered Homeless Populations Provision C.18. San Mateo County Sediment Controls
Provision C.19. Cities of Antioch, Brentwood, and Oakley, Unincorporated Contra Costa County, and the Contra Costa County Flood Control and Water Conservation District Requirements
Provision C.20. Cost Reporting
Provision C.21. Asset Management
Provision C.22. Annual Reports
Provision C.23. Modifications to this Order
Provision C.24. Standard Provisions
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Provision C.25. Expiration Date
Provision C.26. Rescission of Old Order
Provision C.27. Effective Date
IV. ECONOMIC ISSUES AND WATER CODE SECTION 13241
CWC section 13241 requires the Water Board to consider certain factors, including economic considerations, in the adoption of water quality objectives. CWC section 13263 requires the Water Board to take into consideration the provisions of CWC section 13241 in adopting waste discharge requirements.
In City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, the California Supreme Court considered whether regional water boards must comply with CWC section 13241 when issuing waste discharge requirements under CWC section 13263(a) by taking into account the costs a permittee will incur in complying with the permit requirements. The Court concluded that whether it is necessary to consider such cost information “depends on whether those restrictions meet or exceed the requirements of the federal Clean Water Act” (Id. at p. 627.). The Court ruled that regional water boards may not consider the factors in CWC section 13241, including economics, to justify imposing pollutant restrictions that are less stringent than applicable federal law requires (Id. at pp. 618, 626-627 [“[Water Code section 13377 specifies that…discharge permits issued by California’s regional boards must meet the federal standards set by federal law. In effect, section 13377 forbids a regional board’s consideration of any economic hardship on the part of the permit holder if doing so would result in the dilution of the requirements set by Congress in the Clean Water Act.... Because CWC section 13263 cannot authorize what federal law forbids, it cannot authorize a regional board, when issuing a…discharge permit, to use compliance costs to justify pollutant restrictions that do not comply with federal clean water standards.”]). However, when pollutant restrictions in an NPDES permit are more stringent than federal law requires, CWC section 13263 requires that the regional water boards consider the factors described in CWC section 13241 as they apply to those specific restrictions.
As discussed in Section V.C, State Mandates, the Water Board finds that the requirements in this Order are not more stringent than the minimum federal requirements. Among other requirements, federal law (CWA section 402(p)(3)(B)(ii)) requires MS4 permits to include requirements to effectively prohibit non-storm water discharges into the MS4s, in addition to requiring controls to reduce the discharge of pollutants in stormwater to the MEP, and other provisions as U.S. EPA or the State determines are appropriate for the control of pollutants in MS4 discharges. The permitting agency must therefore include provisions when it finds it is appropriate to do so and to determine what permit conditions are necessary to control pollutants in a specific geographic area.
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MS4 discharges in the San Francisco Bay region are a continuing and significant source of pollutants to receiving waters, many of them impaired. As such, the Water Board finds that inclusion of all of the requirements in the Order are necessary and appropriate to control pollutants in MS4 discharges including, but not limited to, requirements for non-stormwater discharges, technology and water quality-based effluent limitations, TMDLs, receiving water limitations, and monitoring and reporting to ensure that the requirements of the Order are being met.
The requirements in this Order may be more specific or detailed than those enumerated in federal regulations under 40 CFR 122.26 and guidance; however, the requirements have been designed to be consistent with and within the federal statutory mandates described in CWA section 402(p)(3)(B)(ii) and (iii) and the related federal regulations and guidance. The conditions in this Order are no more stringent than federal law (See Defenders of Wildlife v. Browner (9th Cir. 1999) 191 F.3d 1159, 1166.). Each of the requirements in the Order, especially when implemented together, constitute the critical means towards achieving the requirements and goals of the CWA.
Moreover, the inclusion of numeric WQBELs in this Order does not cause this Order to be more stringent than federal law (See State Water Board Order No. WQ2021- 0052-EXEC, p. 72.). Federal law authorizes both narrative and numeric effluent limitations to meet state water quality standards. The inclusion of WQBELs as discharge specifications in an NPDES permit in order to achieve compliance with water quality standards is not a more stringent requirement than the inclusion of BMP-based permit limitations to achieve water quality standards (Ibid.; State Water Board Order No. WQ 2006-0012 (Boeing)). This is supported by U.S. EPA in its guidance on incorporating TMDL WLAs for stormwater in NPDES permits, which explains that the permit’s administrative record needs to demonstrate that WQBELs will achieve the WLAs, whether the WQBEL is expressed numerically or as a BMP.2 In light of the foregoing, consideration of the factors set forth in CWC section 13241 is not required for permit requirements to implement the effective prohibition on the discharge of non-stormwater discharges into the MS4 or for controls to reduce the discharge of pollutants in stormwater to the MEP, or other provisions that the Water Board has determined appropriate to control such pollutants, as those requirements are mandated by federal law.
While the Water Board need not consider the CWC section 13241 factors, the Water Board nevertheless considers them below, namely the past, present, and probable future beneficial uses of water; the environmental characteristics of the 2 U.S. EPA, Memorandum, “Revisions to the November 22, 2002 Memorandum ‘Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs,’” (Nov. 26, 2014), p. 6; U.S. EPA, Memorandum, “Establishing Total Maximum Daily Load Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs” (Nov. 22, 2002) (2002 U.S. EPA Memorandum).
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hydrographic unit under consideration, including the quality of water available thereto; the water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area; economic considerations; the need for developing housing within the region; and the need to develop and use recycled water.
Water Code section 13241 “does not specify how a water board must go about considering the specified factors. Nor does it require the board to make specific findings on the factors” (City of Arcadia et al v. State Water Resources Control Board and Los Angeles Regional Water Quality Control Board (2011) 191 Cal.App.4th 156, 177.). In City of Duarte v. State Water Resources Control Board (2021) 60 Cal.App.5th 258, 272, the Court of Appeal held that the “manner in which the Water Control Boards consider and comply with Water Code section 13241 is within their discretion” and that “the Water Control Boards are charged with taking into account economic considerations, not merely costs of compliance with a permit.… [E]conomic considerations also include, among other things, the costs of not addressing the problems of contaminated water” (Id. at p. 276.). Lastly, consideration of section 13241 does not require a “cost-benefit analysis” (See State Water Board Order WQ 2020-0038 (In the Matter of Review of Approval of Watershed Management Programs and an Enhanced Watershed Management Program Submitted Pursuant to Los Angeles Regional Water Quality Control Board Order R4-2012-0175) at p. 31.).
The Water Board finds that the requirements in the Order are necessary to ensure the reasonable protection of beneficial uses of waterbodies and the prevention of nuisance. None of the factors of section 13241, including costs of compliance, is sufficient to justify failing to protect those beneficial uses. Nor is it sufficient to justify omitting any requirement in the Order, as the Board finds that doing so would unreasonably affect the designated beneficial uses of the region’s waters.
Additionally, it would be wholly inconsistent with federal requirements not to include the requirements in the Order, as the Board has deemed them necessary for the control of MS4 discharges. Where appropriate, the Board has provided Permittees with additional time to implement control measures to achieve final WQBELs and/or receiving water limitations and provided significant flexibility where appropriate. The Order builds on the knowledge gained from implementing the Previous Permit. In addition, the Board has provided significant flexibility for Permittees to choose how to implement the requirements of the Order, including by working with other Permittees to implement cost-effective control measures. The Order allows Permittees the flexibility to address critical water quality priorities, particularly discharges to waters subject to TMDLs, but aims to do so in a focused and costeffective manner while maintaining the level of water quality protection mandated by the CWA.
The CWC section 13241 factors are considered as follows:
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A. Past, Present, and Probable Future Uses of Water and Environmental Characteristics of the Hydrographic Unit Under Consideration
With respect to the “past, present, and probable future uses of water” and “environmental characteristics of the hydrographic unit under consideration, including the quality of water available thereto”: the beneficial uses of the region’s waters affected by MS4 storm water discharges are set forth in the Basin Plan, the Ocean Plan, and the Inland Surface Waters, Enclosed Bays, and Estuaries (ISWEBE) Plan, (as well as the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins, applicable to the East County Permittees), which the Water Board has considered. The environmental characteristics of the waters under consideration, including water quality, have been affected by MS4 discharges of stormwater and non-stormwater, which convey myriad pollutants to surface waters, including hydrocarbons, heavy metals, pesticides, trash, mercury, PCBs, bacteria, and sediment, which have impaired waters in the regions, ultimately impacting present and probable future beneficial uses. For example, this has led to fish consumption advisories, adverse ecosystem and recreational impacts from trash and debris, and toxic conditions for aquatic life, among others. The requirements of the Order are necessary to protect and restore the past, present, and probable future beneficial uses of surface waters in the region.
B. Water Quality Conditions Reasonably Achievable
The “water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area” are not reconsidered when issuing waste discharge requirements, as water quality objectives have already been established and the purpose of permitting is to regulate a particular type of discharge or a discharge from a specific source, not all possible sources of pollutants to a receiving water. The water quality objectives implemented by the Order have already been subject to separate regulatory processes, and those water quality objectives were deemed reasonable and achievable when they were promulgated. The Water Board has found that water quality objectives can reasonably be achieved, in many cases over time in accordance with implementation schedules, such as those in TMDLs, through the coordinated control of all factors which affect water quality in the area. Achieving and maintaining water quality objectives is a coordinated effort and all regulated dischargers must contribute, including the Permittees, since MS4 discharges are a significant source of pollutants in receiving waters. The requirements in this Order are key to ensuring reasonable achievement of water quality objectives.
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C. Housing Needs
With respect to the “need to develop housing within the region,” the Water Board is mindful that housing demands have not kept up with population growth in the Bay Area. An increase in population creates a higher demand for water, exacerbates usage of natural resources, and increases generation of waste and pollution. In order to conserve and protect the quantity and quality of our natural resources, development must be done systematically. To protect human health and the environment, create economic opportunities, and provide attractive and affordable neighborhoods, U.S. EPA encourages smart growth and low impact development.3 Stormwater management is an essential smart growth strategy. According to U.S.
EPA, using smart growth and low impact development strategies, communities and developers can reduce runoff quantity, protect water quality, and conserve water by developing compactly, preserving ecologically critical open space, and using green infrastructure strategies.4
The Order helps to address the water needs associated with the need for housing by controlling the quality and quantity of MS4 discharges, and requiring some stormwater to be recycled and re-used. The low impact development requirements of the Order help to balance growth with the protection of water quality, by requiring new development to implement cost effective, lot-level strategies that replicate the natural hydrology of the site and reduce the negative impacts of development. By avoiding the installation of more costly conventional stormwater management strategies and harnessing runoff at the source, LID practices enhance the environment while providing cost savings to both developers and local governments.
The Order also incentivizes much-needed affordable housing in the Bay Area by providing regulatory flexibility for affordable housing projects in meeting low impact development requirements. The new requirements to address discharges associated with unsheltered homelessness may also encourage the development of housing, as Permittees may control discharges associated with homelessness by providing and expanding access to temporary or permanent housing.
D. Recycled Water Needs
On the “need to develop and use recycled water” factor, the Order allows Permittees, via their green infrastructure planning and alternative compliance 3 According to U.S. EPA, “‘[s]mart growth’ covers a range of development and conservation strategies that help protect our health and natural environment and make our communities more attractive, economically stronger, and more socially diverse.” Principles of smart growth include, but are not limited to, use of compact building design, creating a range of housing opportunities and choices, and preserving open space and critical environmental areas. United States Environmental Protection Agency. About Smart Growth. https://www.epa.gov/smartgrowth/about-smart-growth. Accessed on June 23, 2020. 4 U.S. EPA. Smart Growth and Water. https://www.epa.gov/smartgrowth/smart-growth-and-water Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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processes in Provision C.3, to support or implement multi-benefit projects that capture and use runoff. During MRP 2, the City of South San Francisco and the San Mateo Countywide Water Pollution Prevention Program developed the Orange Memorial Park design, which incorporates water capture and use and is expected to be constructed during the Permit term. Permittees, in their Green Infrastructure Plans and Stormwater Resource Plans completed during MRP 2, have identified additional opportunities for such projects, and Order Provision C.3.j allows credit for their implementation.
E. Economic Considerations
Finally, with respect to the “economic considerations” factor, the Water Board has considered cost of compliance, especially since it is a consideration in the implementation of technology controls to the MEP. In 2000, the State Water Board issued a precedential order (State Water Board Order WQ 2000-11 (Cities of Bellflower, et al.) stating that cost of compliance with the programs and requirements of a municipal stormwater permit is a relevant factor in determining MEP. The Order also explicitly stated that a cost benefit analysis is not required.
The State Water Board discussed costs as follows:
While the standard of MEP is not defined in the stormwater regulations or the Clean Water Act, the term has been defined in other federal rules....
These definitions focus mostly on technical feasibility, but cost is also a relevant factor. There must be a serious attempt to comply, and practical solutions may not be lightly rejected. If, from the list of BMPs, a permittee chooses only a few of the least expensive methods, it is likely that MEP has not been met. On the other hand, if a permittee employs all applicable BMPs except those where it can show that they are not technically feasible in the locality, or whose cost would exceed any benefit to be derived, it would have met the standard. MEP requires permittees to choose effective BMPs, and to reject applicable BMPs only where other effective BMPs will serve the same purpose, the BMPs would not be technically feasible, or the cost would be prohibitive. Thus while cost is a factor, the Regional Water Board is not required to perform a cost-benefit analysis.
(State Water Board Order WQ 2000-11, supra, p.20; see also State Water Board Order WQ 2020-0038, supra, p. 31.) The cost of complying with TMDL waste load allocations is not required to be considered since TMDLs are not subject to the MEP standard. Federal law requires that NPDES permits contain effluent limitations consistent with the assumptions of any applicable wasteload allocation in a TMDL Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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(40 C.F.R. §122.44(d)(1)(vii)(B).). Nevertheless, for purposes of CWC section 13241, these costs are considered.
Economic discussions of urban runoff management programs focus primarily on costs incurred by municipalities in developing and implementing the programs. This is appropriate, and these costs are significant and a major issue for the Permittees.
However, the true cost of implementation of the Permittees’ urban runoff management programs is difficult to ascertain because reported costs of compliance for the same program element can vary widely from Permittee to Permittee, often by a very wide margin.5 Permittees do not have a standardized approach to reporting costs, and in some cases attribute the full cost of pre-existing programs, program elements that serve purposes other than stormwater control, and grant-funded projects to the cost of complying with the stormwater permit.
Below, we discuss these challenges in more detail, consider cost estimates from other regions, and provide estimates of both past and projected costs of this region’s identify urban runoff management programs. In addition, we have also attempted to quantify both costs that would be incurred by not fully implementing the programs, as well as the benefits that result from program implementation.
1. Difficulties in Estimating Costs
Reported costs of compliance for the same program element can vary widely from Permittee to Permittee, and stormwater pollution reduction approaches and costs are difficult to standardize. There are appropriate grounds for differences among municipal stormwater permits: what is practicable and prudent in one community may not work in another because of differences in population, hydrology, pollution sources, water uses, and municipal infrastructure, among other factors. In addition, Permittees have discretion in deciding how to comply with permit requirements, including requirements to implement TMDL wasteload allocations and achieve fulltrash capture equivalency. Nevertheless, differences of a very wide margin are not easily explained.6 While Permittees may be in a better position than Water Board staff to estimate the costs of compliance, they may have incentives to over-report costs or report costs they would have incurred regardless of the permit requirements. Thus, it continues to be difficult to ascertain the cost, for planning purposes, of fully implementing decades-long stormwater and urban runoff management programs, especially where significant flexibility has been provided to the Permittees to comply, both with regard to the manner of compliance and the timeframes for achieving compliance.
5 LA Regional Water Board, 2003. Review and Analysis of Budget Data Submitted by the Permittees for Fiscal Years 2000-2003. p.2
6 Radulescu, Dan, and Xavier Swamikannu. Review and Analysis of Budget Data Submitted by the Permittees for Fiscal Years 2000-2003. Los Angeles Regional Water Board, January 2003. p. 2. Web.
June 20, 2019.
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In addition, challenges in projecting costs include:
Innovations in BMPs over time may reduce costs and/or increase pollutant removal;
Changes in consumer products, land use, and demographics may increase, reduce or eliminate pollutants in MS4 discharges;
Limitations of modeling used to identify appropriate BMPs to achieve required water quality outcomes, requiring water quality data for verification and periodic recalibration;
Imprecise data at the planning stage on site-specific conditions for siting BMPs, which can significantly affect BMP sizing requirements as well as the types of BMPs that can be used at a site;
Evolving science and evaluation of local conditions that may support site-specific water quality objectives; and
Infrastructure age and condition, which may require significant rehabilitation or reconstruction projects to which Permit-required BMPs could be added at a reduced incremental cost relative to a standalone BMP retrofit project;7 BMP implementation drivers outside the Permit, such as climate change, which may result in changes to the depth, duration, and frequency of precipitation events, as well as changes to urban temperatures and water availability; urban land use changes such as densification or multi-modal (“active”) transportation design implementation; modified urban designs to improve air quality around transportation infrastructure; or modified street tree planting designs to improve street tree health, size, and longevity, leading to green stormwater infrastructure implementation for other purposes, that coincidentally satisfies Permit requirements.
Several ongoing initiatives seek to address the challenges described above, including efforts by the State Water Board’s Office of Research, Planning, and Performance (ORPP)8 to provide guidance on estimating TMDL implementation costs, and a project of the Environmental Finance Center (EFC) at California State 7 As an example, in its 2019 stormwater fee funding initiative, the City of Alameda noted that “on average, the industry-standard life expectancy of a storm drain system is approximately 60 years. The majority of the City’s storm drainage pipes were installed more than 50 years ago, leaving the City with a system that is approaching the end of its useful life.” (City of Alameda, July 2019. Fee Report: Water Quality and Flood Protection Fee. p. 1). Many of the MRP Permittees own and operate MS4s that were built prior to or shortly after WWII and, as such, are systems due for significant rehabilitative or restorative maintenance.
This has been one driver for MS4 master planning efforts by Permittees including the cities of Alameda (2008), Oakland (bids solicited in 2020), Palo Alto (2015 update), San Jose (2017), and Vallejo. 8 State Water Board, ORPP, 2019. Guidance for Future Total Maximum Daily Load (TMDL) Municipal Storm Water Cost Estimation, p.2.
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University, Sacramento’s to compile existing resources on stormwater infrastructure costs and develop best practices for estimating costs. EFC’s effort is evolving from CSU Sacramento’s 2005 work, presented below in part, and will include estimates of costs for permit compliance activities, technical resources that assist stormwater managers, and project costs for both green and grey stormwater infrastructure.
ORPP’s guidance describes methods for obtaining information on compliance approaches and associated costs and for completing an independent analysis of costs. The guidance promotes greater consistence and transparency related to estimation of costs to implement TMDLs. ORPP notes that, even with improved guidance, precise cost estimation remains challenging and the level of precision possible may be low in many cases. For example, industry-wide, there is no uniform database of projects’ components and costs to date. 9
The Permit specifies expectations for cost reporting in Provision C.20, Cost Reporting, which is intended to improve the Board’s understanding of Permittee costs to comply with the Permit. The Water Board hopes that in conjunction with ORPP’s guidance and the EFC’s resources, Provision C.20 will provide valuable cost information that will improve the Water Boards’ consideration of economic factors in issuing future permits.
a. Differentiating Stormwater Program Costs from Other Municipal Program Costs
Reported program costs are not all attributable to compliance with MS4 permits.
Many program components and associated costs predate the MS4 permitting program, while other program components serve multiple purposes, only one of which is stormwater control, or would have been implemented irrespective of a permitting requirement. Therefore, true program cost resulting from MS4 permit requirements is sometimes some fraction of reported costs.
In the San Francisco Bay Region, most costs that will be incurred to implement the Order will not be new. Urban runoff management programs have been in place in this region for over 25 years. Municipalities have funded street sweeping and trash collection for decades, so their costs are not solely or even principally attributable to MS4 permit compliance. Some municipalities’ source control ordinances, such as Berkeley’s 1988 ban on Styrofoam, predated the stormwater permit’s source control credits. Many municipalities had creek cleanup initiatives, long before doing so was eligible for a credit under the stormwater permit. Thus, any increase in cost to the Permittees as a result of this Order’s requirements will be incremental in nature. This incremental increase may be quite low. A California State University, Sacramento study found that only 38 percent of program costs are new costs fully attributable to 9 Radulescu, Dan, and Xavier Swamikannu. Review and Analysis of Budget Data Submitted by the Permittees for Fiscal Years 2000-2003. Los Angeles Regional Water Board, January 2003. p. 2. Web.
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MS4 permits. The remainder of program costs were either preexisting or resulted from enhancement of preexisting programs.10 The County of Orange found that an even smaller percentage, 20 percent, of its total stormwater management program budget was attributable to MS4 permit compliance. The remaining 80 percent is attributable to preexisting programs.11 In some cases, stormwater control is only one element of a larger project. For instance, stormwater control measures may be integrated into multi-benefit projects serving many objectives, such as green stormwater infrastructure elements of sidewalks and bike paths that also reduce the urban heat island effect and improve pedestrian and cyclist safety. Another example is the stormwater filtration pond at Northside Drive in Dublin, Alameda County, which filters runoff from upstream residential and commercial land use while serving as a significant urban park amenity. Other measures may start out as stormwater control measures only to become expected by residents for their other benefits (e.g., dog waste bags along trails or in public parks, trash receptacles at trailheads and parking areas, and restrooms or portable toilets at trailheads and in public parks). As for the costs associated with upgrading existing programs, only a fraction of the cost of a multi-benefit project should be attributed to MS4 permit implementation.
2. Current Permit Costs - Estimates from Other Regions
Despite the challenges in quantifying permit implementation costs, past efforts to identify urban runoff management program costs have produced useful information.
Studies on urban runoff management program costs and have found annual perhousehold costs ranging from about $15 – 67 (2021 dollars).12 For example, in 1999, U.S. EPA reported on multiple studies it conducted to determine the cost of urban runoff management programs.13 A study of Phase II municipalities determined that the annual cost of the Phase II program was expected to be $9.16 ($14.58)14 per household per year. U.S. EPA also studied 35 10 State Water Board, 2005. NPDES Stormwater Cost Survey. p. 58. 11 County of Orange, 2000. A NPDES Annual Progress Report. p. 60. More current data from the County of Orange is
not used in this discussion because the County of Orange no longer reports such information. 12 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations. pp. 68791-68792.
State Water Board, 2005. NPDES Stormwater Cost Survey. p. ii 13 U.S. EPA, 1999. Preliminary Data Summary of Urban Storm Water Best Management Practices, EPA 821-R99-012. Web.
14 Figures in parentheses reflect adjustments for inflation to 2021 dollars using the U.S. Bureau of Labor Statistics’ CPI Inflation Calculator: https://www.bls.gov/data/inflation_calculator.htm Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Phase I municipalities, finding costs to be similar to those anticipated for Phase II municipalities, at $9.08 ($14.46) per household per year.15 The Los Angeles Regional Water Board also conducted a study on program cost based on costs reported in the municipalities’ annual reports.16 The Los Angeles Regional Water Board estimated that average per-household cost to implement the MS4 program in Los Angeles County was $12.50 ($18.18) per year.
The State Water Board commissioned a study by CSU Sacramento to assess costs of the Phase I MS4 program. Annual cost per household in the study ranged from $18 to $46 ($25.98 to $66.51) with the City of Encinitas in San Diego County representing the upper end of the range.17 The higher cost of the City of Encinitas’ program reflects its coastal location, reliance on tourism, consent decree with environmental groups, and overall superior program. In a separate review, the Central Coast Regional Water Board estimated that the costs imposed by its Phase I MS4 Permit for the City of Salinas (Order No. R3-2012-0005) were similar to those for Encinitas, since the Salinas permit’s requirements were similar to those for Encinitas. Other MS4s assessed in the CSU Sacramento study were the cities of Corona and Santa Clarita, which were found to expend $32 ($46.76) and $39 ($40.53) per household on their stormwater programs, respectively. The range of costs for broadly similar programs in Southern California is likely representative of Permittees’ costs to implement the programs.
3. Estimates of Permit Costs in the San Francisco Bay Region Because the Permittees have not been required to report comprehensively on program implementation costs, estimates like those developed in CSU Sacramento’s study are not available for the San Francisco Bay Region.
Nevertheless, stormwater management fees implemented by certain Permittees provide some indication of the previous permit’s implementation costs. The MRP Permittees’ generally successful implementation of their urban runoff management programs for the past 25 years demonstrates that they have the resources available to implement them. We consider these costs below:
In 2019, the City of Alameda property owners approved the Water Quality and Flood Protection Initiative, which increased Alameda’s existing Clean Water Program fee, originally adopted in 1992, to comply with state and federal clean 15 National Pollutant Discharge Elimination System – Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Dischargers, Final Rule. Federal Register 64 (December 8, 1999): 68791. Web.
16 Radulescu, Dan, and Xavier Swamikannu. Review and Analysis of Budget Data Submitted by the Permittees for Fiscal Years 2000-2003. Los Angeles Regional Water Quality Control Board, January 2003. p. 2. Web.
17 State Water Board, 2005. Currier, Brian K., et al. NPDES Storm Water Cost Survey Final Report. Office of Water Programs, CS Sacramento, January 2005. pp. ii, iv Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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water requirements (28 percent); operate and maintain Alameda’s MS4 (56 percent); and complete capital improvements to protect flooding (16 percent).18 The initiative increased Alameda’s existing fee revenues to $5.45 million per year from $2.89 million per year, and to $69.40 per capita from about $36.80 per capita. While the allocation of the fee funds suggests Alameda’s costs to implement Permit requirements may not be more than about $20 per capita per year ($69.40 x 28 percent). However, because costs are not clearly separated and because Alameda incurs other costs that are recovered outside of the fee (e.g., costs for plan review for Provision C.3 projects, inspection of commercial, industrial, and construction facilities pursuant to Provisions C.4 and C.6, with recovery of those costs via fees for plan review or inspection), the true program cost is greater.
In April 2017, Palo Alto property owners approved a Storm Water Management Fee of about $164 per year for a typical single-family residence. This new fee replaced Palo Alto’s then-existing Storm Drainage Fee, increasing it by about 2.3 percent.
The fee was originally established in 1989 at $39 per year per “equivalent residential unit” and was raised to $51 per year in 1994-95, for a typical singlefamily residence.19 The 2017 fee was to fund: storm drain system construction projects; green stormwater infrastructure projects; commercial and residential rebate programs to encourage installation of green stormwater infrastructure; floodplain management programs; debris and litter reduction; and public and residential integrated pest management activities. Palo Alto noted that the funding necessary to support “a minimum level of storm drainage service” would cost approximately $3.5 million per year, consisting of $2.5 million in baseline staff and expenses, and $1 million in annual debt service for past storm drain capital project revenue bonds, or about $52.60 per capita.20
Both fee increases provide a Bay Area estimate of current program costs and indicate the challenges of determining stormwater program-specific costs. While the fees include costs to comply with Permit, they also include other costs associated with MS4 construction, operation, and maintenance, which are not required by the Permit. At the same time, the fees do not cover all costs to implement the Permit.
For example, the cities incur costs under Provision C.3 associated with plan review and approval, inspection of urban runoff treatment, and in some cases hydromodification control systems. In addition, they may incur costs for Permitrequired inspections of construction sites and commercial and industrial businesses, and actions to address illicit discharges pursuant to Provisions C.4, C.5, and C.6.
These costs are recovered through other fees, e.g., for plan review, permitting, and inspections, and business licenses. Permit-required work such as commercial and 18 City of Alameda, 2019. City of Alameda Water Quality & Flood Protection Initiative Official Ballot Information Guide. Web. July 22, 2021.
19 https://www.paloaltoonline.com/weekly/morgue/cover/2000_Sep_13.SIDEBAR.html 20 City of Palo Alto, Sept. 22, 2015. Finance Committee Staff Report: Storm Drainage Fee Renewal. p.7.
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industrial business inspections may be combined with inspections for purposes not required by the Permit, such as hazardous materials inspections completed by the local Certified Unified Program Agency (CUPA).
Similarly, Permittees may use General Fund revenues for purposes such as capital improvement projects, which could include provision of matching funds for grantfunded green stormwater infrastructure projects. The City of East Palo Alto experienced budget surpluses of up to $17.2 million per year from 2011 to 2019, and in 2019 transferred a portion of the surplus to provide cost match for grantfunded water infrastructure projects. Other cities experiencing surpluses in 2019 included Palo Alto ($76 million) and Mountain View ($118 million).21 These expenditures may not be reflected in storm water fees.
Palo Alto’s and Alameda’s fees are similar to the reported costs for other municipalities to implement broadly similar MS4 permits. Given the significant limits noted herein, the Water Board concludes that the discussion describes costs that are generally representative of costs to implement the Previous Permit.
4. Program Costs
Below, we consider in greater detail the costs associated with compliance with the renewed Permit.
This economic analysis combines cost estimates at a macro level (e.g., per capita costs based on typical implementation costs compiled from multiple sources) and, where possible, estimated costs for Permittees to comply with specific Permit provisions.
For estimates of the projected costs to comply with the Permit, Water Board staff sought examples from published sources and experts, including:
Permittees’ stormwater program managers and staff
Stormwater program managers around the State
Stormwater staff at the Regional and State Water Boards Grant funding applications (e.g., Props. 1 and 84) and reports submitted to the State Water Board’s Division of Financial Assistance (e.g., Storm Water Resource Plans)
Information on projects implemented cooperatively with the California Department of Transportation (Caltrans)
21 East Palo Alto Daily Post, Feb. 5, 2020. East Palo Alto Posts a $15.6 million surplus. Web. July 25, 2021.
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Total Maximum Daily Loads adopted by the Water Board and other Regional Water Boards
Economic analyses conducted for other Regional and State Water Board orders and amendments to Water Quality Control Plans (e.g., the Trash Amendments) Available peer-reviewed and gray literature on the implementation of measures similar to those that are reasonably foreseeable under the Permit (e.g., reports on green stormwater infrastructure implementation for Philadelphia’s Green City, Clean Waters program and others; collected cost information available at the International Stormwater BMP Database; and published reports and articles from the American Society of Civil Engineers and the Water Environment Federation)
Possible errors in cost estimates can result from extrapolating costs from other jurisdictions to the Permittees’ on a per capita or per area basis because of differences in regional economies, population density, and other factors. A more accurate estimation of costs would seek to normalize cost factors before extrapolating in this manner. However, as discussed herein, because of limitations in the available data and uncertainties regarding Permittees’ methods of compliance with the Permit, further effort to refine the estimates provided here would not necessarily improve them.
The Permittees’ determination of a method of compliance will also affect cost.
Permittees can choose to implement the least expensive measures that are effective in meeting the Permit requirements. The Permit also does not require Permittees to fully implement all requirements within a single permit term. Where appropriate, the Water Board has provided Permittees with additional t ime to implement control measures to achieve water quality objectives. In addition, changes to the Permit are typically incremental in nature, expanding upon or better defining existing programs or requirements. Estimates of new program costs can be inflated if they reflect the unit costs for grant-funded projects, often pilots being completed for the first time, that include measures that would be excluded if they were not being subsidized by grant funding.
The Permit generally maintains existing requirements, such that many MS4 program costs are continuing costs that may be well represented by the discussion above. At the same time the Permit’s continuing requirements may result in additional implementation actions, which can result in new costs. In addition, the Permit includes new or revised expectations as described below, which may result in program costs not captured by the above analysis.
a. Continuing Requirements
Provisions for which requirements are substantially continuing, or continuing in a manner likely to result in similar costs to Permittees as under MRP 2, include:
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C.1 – Compliance with discharge prohibitions
C.2 – Municipal operations
C.4 – Industrial and commercial site controls
C.5 – Illicit discharge detection and elimination
C.6 – Construction site control
C.7 – Public information and outreach
C.9 – Pesticides toxicity control
C.13 – Copper controls
C.14.b – City of Pacifica and San Mateo County bacteria controls C.15 – Exempted and conditionally exempted discharges C.16 – Discharges to areas of special biological significance C.19 – East Contra Costa County Permittees
Provision C.5 includes a continuing requirement that Permittees maintain their MS4 maps, along with a requirement to develop a plan and schedule to update their existing maps. Permittees are likely to incur modest costs to develop this plan and schedule. Those permittees who have recently updated maps are likely to incur lower costs.
In addition, while Provision C.8, Monitoring, incorporates certain revised monitoring expectations, they are expected to result in costs similar to those incurred by the Permittees during MRP 2, including for monitoring conducted pursuant to Provision C.10, which has been moved into Provision C.8. That is because while some monitoring has been maintained (e.g., pesticides and pollutants of concern monitoring) or added (e.g., green stormwater infrastructure monitoring), other monitoring expectations were removed (e.g., creek status monitoring) and replaced with monitoring that is expected, overall, to have similar total costs. In addition, the provision incorporates flexibility to allow Permittees to complete monitoring efforts collectively and/or collaboratively, or in coordination with other efforts, such as the San Francisco Bay Regional Monitoring Program. All monitoring requirements are relevant and necessary to demonstrate compliance with permit requirements and to answer or to inform answer to critical specified management questions related to pollutant source identification, effectiveness of pollutant controls and management practices and actions, and attainment of water quality objectives in receiving waters. The monitoring requirements reflect a balance between minimizing monitoring costs and ensuring monitoring is scientifically sound and sufficient to provide usable Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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results. Any increased costs associated with new or revised monitoring requirements are modest compared to the costs of implementation of pollutant controls and management practices and actions, and the benefit of betterinformed basis for cost-effective pollutant controls and management practices and actions, which will cost hundreds of millions of dollars over time, far outweigh any additional monitoring costs. In addition, reduced or inadequate monitoring efforts that do not produce usable results is a consequential waste of resources.
Further, trash monitoring requirements have been moved to Provision C.8 from Provision C.10. While they have been updated to reflect next steps based on work the Permittees completed during MRP 2, they are expected to involve a similar level of effort and cost.
Provision C.15 includes a continuing requirement to implement appropriate BMPs for non-stormwater discharges, including emergency firefighting discharges. This includes a requirement to convene a workgroup to update practices for emergency firefighting discharges and to implement training on the updated practices once during the permit term. This may result in costs to attend workgroup meetings, prepare updated BMPs and outreach materials, and train affected municipal staff.
Provision C.19 incorporates changes reflecting that subject East Contra Costa County Permittees, who were added to MRP 2 during the MRP 2 permit term, were granted time during MRP 2 to come up to speed with requirements of other Order provisions. Those Permittees are thus expected to be affected similarly to the other Permittees with respect to costs, as described elsewhere in this analysis. In addition, Provision C.19 incorporates requirements to achieve applicable wasteload allocations for mercury, in part by completing a study on Marsh Creek. However, those costs are roughly offset by reduced costs associated with work completed during MRP 2 that is now no longer required. b. Continuing Requirements with additional costs
The Permit includes a number of provisions with requirements that may increase program costs. In many cases, these costs may be offset in whole or in part through collection of additional fees (e.g., for plan review and inspections), grant funding, completion of cooperative projects with other entities (e.g., Caltrans), or other sources.
The Permit would require additional costs as compared to MRP 2 to implement updated requirements for the following Provisions:
C.3 – New and Redevelopment
C.10 – Trash Control
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C.11 – Mercury Control and
C.12 – PCBs Control
For Provisions C.3, C.10, C.11, and C.12, substantial portions of the Provisions’ expectations are continuing requirements and expected to have costs similar to MRP 2. They also incorporate updated requirements, and the costs to implement those updated requirements are likely to be dominated by costs for green stormwater infrastructure implementation and implementation of full trash capture devices or measures equivalent to full trash capture, as described below. That is in part because building projects on the ground is more expensive than implementing municipal planning processes to require others to do so, to evaluate contaminated sites for referral to other agencies for cleanup, etc.
Green stormwater infrastructure implementation costs have a substantial potential range, depending on factors including project type, size, location, and constraints. In general, larger district- or regional-scale projects may have lower unit costs (i.e., costs per acre of impervious surface treated, or per unit of pollutants reduced) than smaller green street or parcel-scale projects.22 In their Green Infrastructure planning processes and in comments on the Order’s Administrative Draft, Permittees expressed the expectation that they would seek to implement a cost-efficient combination of measures sufficient to address Order requirements. Thus, it is likely that Permittees will choose to implement a combination of projects that is below the highest-cost analysis considered here.
To the extent these provisions contain updated measures that would impose additional costs on Permittees to implement, it is likely that those additional costs are within the range of implementation costs for green stormwater infrastructure and trash capture.
c. Continuing provisions with updated requirements
The Order includes post-construction stormwater requirements, including requirements to reduce discharges of mercury and PCBs, which green stormwater infrastructure will help achieve. Low impact development (LID), as a mode of implementing post-construction requirements, has been shown to be cost-effective and compares favorably to conventional stormwater management. “As LID was [originally] developed by a local government, it is sensitive to addressing local government’s unique environmental and regulatory needs in the most economical manner possible by reducing costs associated with stormwater infrastructure design, construction, maintenance, and enforcement.
LID also provides for local governments’ need for economic vitality through reasonable and continued growth and redevelopment. LID allows for greater development potential with less environmental impact using smarter designs and 22 WEF, Dec. 2, 2015. Spotlight: The Real Cost of Green Infrastructure.
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advanced technologies to achieve a better balance between conservation, growth, ecosystem protection, and public health/quality of life.”23 Traditional approaches to stormwater management involve conveying runoff offsite to receiving waters, to a combined sewer system, or to a regional facility that treats runoff from multiple sites. These designs typically include hard infrastructure, such as curbs, gutters, and piping. LID-based designs, in contrast, are designed to use natural drainage features or engineered swales and vegetated contours for runoff conveyance and treatment. In terms of costs, LID techniques like conservation design can reduce the amount of materials needed for paving roads and driveways and for installing curbs and gutters.
Conservation designs can be used to reduce the total amount of impervious surface, which results in reduced road and driveway lengths and reduced cost.
Other LID techniques, such as grassed swales, can be sued to infiltrate roadway runoff and eliminate or reduce the need for curbs and gutters, thereby reducing infrastructure costs. LID techniques can reduce creek and flood control channel maintenance needed due to erosion and sedimentation, and reduce the size and cost of flood control structures.24
The Water Board considered costs of implementing LID measures. In comments on the Administrative Draft of the Permit, the Permittees submitted an estimated average cost of $215,000 per impervious acre treated by bioretention.25 However, the ACCWP noted a per-acre cost of approximately $660,000 for a single high-cost project, Union City’s grant-funded H Street Green Street retrofit pilot project,26 which incorporated substantial amounts of relatively moreexpensive pervious pavement and concrete work. It is likely that increased municipal experience over time will reduce unit costs from this high number.
Additionally, it is unlikely that municipalities implementing retrofit projects would incorporate cost drivers like large areas of pervious pavers and substantial underlying concrete work, when less-expensive options (e.g., bioretention bulbouts, district- or regional-scale projects) are available.
In addition, costs to implement GSI include operation and maintenance costs.
The Water Board reviewed available estimates of annual O&M costs, including general estimates about $1,120 – 2,240 (2021 dollars) per treated acre of impervious surface for bioretention cells, with somewhat higher numbers for porous and pavement and porous pavers (about $1,680 – 2,800 per acre 23 Coffman, Larry. Low Impact Development: Smart Technology for Clean Water, Definitions, Issues, Roadblocks, and Next Steps. American Society of Civil Engineers, 2004. Web. August 3, 2021. p.1. 24 U.S. EPA. Reducing Stormwter Costs Through Low Impact Development (LID) Strategies and Practices. EOA 841-F-07-006, December 2007.
25 E.g., SCVURPPP and CCCWP comment letters of April 8, 2021, on MRP 3.0 Administrative Draft. 26 ACCWP comment letter on MRP 3 Administrative Draft, April 8, 2021. p.7 of 31.
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treated, 2021 dollars).27 An ASCE survey of maintenance costs found that annual bioretention maintenance costs varied substantially, from $70 – 5,450 per acre treated, but averaged about 5-7 percent of capital costs, which was consistent with U.S. EPA guidance.28 O&M costs may be borne by a Permittee or an implementing private party. The costs are incremental; in the absence of an O&M cost for GSI, a Permittee or private party typically would incur an O&M cost for the landscaping or other surface that would have been present if the GSI had not been built.
Further cost estimates are discussed below. This analysis considers a range of costs running from $50,000 per treated impervious acre as a potentially low cost for larger district- or regional-scale projects; $213,000 per treated acre as a potentially typical cost, and $660,000 per treated acre as a potentially high-end implementation cost for implementation of green stormwater infrastructure.
Provision C.3 would require Permittees to implement green stormwater infrastructure retrofit of up to 216.92 ac, while providing flexibility to include projects that may already be under way but not yet constructed (pursuant to Provision C.3.j.ii.(2)(e)), as well as certain projects that have not been completed by the end of the Permit term (pursuant to Provision C.3.j.ii.(2)(f)). In addition, it allows a reduction in GSI retrofit requirements for Permittees who implement ordinances to more broadly incorporate retrofit requirements into their planning and approval processes for C.3 Regulated Projects.
As a result, Permittees would be expected to incur costs ranging from $13.7 million to $181 million, with a more-typical expectation of about $58 million, to comply with the Permit’s GSI retrofit requirements during the coming Permit term. As noted above, those costs are likely overstated because of flexibility provided within the Permit.
In a 2013 study,29 the County of Orange, on behalf of the Orange County Stormwater Program, partnered with the Construction Industry Coalition on Water Quality to develop estimates of the costs of incorporating different combinations of LID BMPs into several of the most commonly encountered Orange County development scenarios. The study examined four different development project scenarios in Orange County, ranging in size from a small urban mixed-use commercial retail and residential property with no parking provided (0.14 ac), up to a large “big-box” type commercial retail center on 12.4 27 WEF, Dec. 2, 2015. Spotlight: The Real Cost of Green Infrastructure. 28 U.S. EPA, 199. Preliminary data summary of urban stormwater best management practices. EPA-821- R-99-012, Washington, DC.
Clary and Piza, 2017. Cost of Maintaining Green Infrastructure. EWRI of the American Society of Civil Engineers, ch. 3.
29 Grey et al., March-April 2013. The costs of LID: low-impact-development BMP installation and operation and maintenance costs in Orange County, CA. Stormwater Magazine.
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ac. In three of four scenarios, the percentage of impervious area assumed was 90 percent, with LID BMPs sited predominantly within landscaping and parking areas. The study considered five different LID BMPs for application within four categories of LID BMPs: infiltration basins and concrete pavers, harvest and use cisterns, green roofs, and biofiltration systems.
The study found that “infiltration and biofiltration systems were the least-cost practice to manage the Design Capture Volume for a given project, and the least costly BMPs to operate and maintain over a 20-year period. This finding is generally consistent with a small amount of published literature and reports on LID BMP costs in the U.S.” Specific costs for LID BMP installation and O&M “ranged from just over $50,000 for an infiltration paver system serving the small urban mixed-use residential and commercial scenario (0.14 ac, 2,800-gal design capture volume) up to $4.7 million for a cistern and green roof combination serving the 12.4-ac big-box commercial project.
The Orange County study found: “Assuming no technical infeasibility constraints, the least-cost LID BMPs are infiltration and biofiltration systems, regardless of volume managed or project type…. Where space is available within a project site (the case studies assumed 3 percent or less of the total site area) to install an infiltration basin or biofiltration system, the cost of installing these two types of LID BMPs is under…$2 per square foot [about $87,000 per acre] of [impervious area].”
A 2011 study from the Minnesota Pollution Control Agency30 reported data on 69 BMP projects and illustrates a wide variability in costs of different LID BMPs (Table A-1). In addition, costs are with a given BMP type are expected to vary substantially depending on factors described above.
Table A-1. BMP scost estimates.
Stormwater BMP Dollars/Cubic Foot of Runoff
Large wet detention basin $3.20 (treating more than 100,000 cubic feet)
Small detention basin $231.67 (treating less than 10,000 cubic feet)
Constructed wetland $1.60
Infiltration trench $17.58
Bioretention basin $92.67
Underground infiltration $12.78
Pervious pavement $25.56
Finally, Alcosan completed a GSI cost literature review that found an estimated cost of about $311,500 (2021 dollars) per acre of impervious surface treated for 30 Minnesota Pollution Control Agency, 2011. Best Management Practices Construction Costs, Maintenance Costs, and Land Requirements. Prepared by Barr Engineering Company.
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a range of projects that included BMPs including bioretention, infiltration trenches, pervious pavements, underground storage, and tree trenches.31 Together, these estimates support the range of estimates used to estimate Permittee costs during the Permit term.
While substantial portions of Provision C.3 are the same as during MRP 2, the provision includes updated expectations for Regulated Projects, including roads, that are expected to result in additional municipal costs. Those include changes to Regulated Project definitions, including roads. To the extent those create additional oversight costs, the costs should be recoverable through fees including permitting, plan review, and inspection fees. To the extent they create additional construction costs for municipal road projects, the costs are likely to be funded through funding sources including Prop 1 gas tax funding and through reprioritization of work that excludes water quality measures.
SCVURPPP estimated that the road reconstruction requirements would cost Santa Clara County Permittees up to $300 million during the Permit term to treat about 1,400 acres of new or reworked impervious surface at an average cost of $213,000 per acre treated.32 That estimate was prepared based on an expansive identification of what might qualify as a Regulated Project in this category, including ADA curb cuts, and particularly included a significant number of maintenance projects, as well as distributed, non-contiguous projects, that would not be expected to be regulated. That cost estimate is conservative and well in excess of Provision C.3’s effect. Other commenters noted that the road reconstruction requirements would apply primarily, if not exclusively, to full-street reconstruction projects, such as active transportation/complete streets projects.
While the total cost is unknown because the range of municipal projects that would be completed during the Permit term is unknown, costs are expected to be incremental relative to the total costs of those projects and within the range of unit costs described above.
Provision C.3 includes updated expectations for Special Project category C that are expected to result in minimal costs to Permittees, because implementing the category is optional, costs to implement it can be recovered via plan review and related fees, and because it replaces a similar, but more-expansive, category from MRP 2.
Provision C.3 includes an option for the Contra Costa Permittees to submit a hydromodification management report that would consist of refinements to work largely completed during MRP 2. This is expected to result in a modest cost for staff and consultant time.
31 Alcosan, 2012. Starting at the Source: How our Region Can Work Together for Clean Water. Appendix C: GSI Cost Literature Review. Pittsburgh.
32 SCVURPPP, April 8, 2021. Comment letter on Administrative Draft. p.4.
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Finally, Provision C.3 includes expectations that Permittees implement and, as appropriate, update the Green Infrastructure Plans they completed during MRP
2. This represents a lower level of effort from MRP 2, with likely some level of cost savings relative to MRP 2. Overall, it is continuing implementation, including programmatic work generally tied to ongoing practices (e.g., no missed opportunities, specific and general planning, policy review, outreach to elected officials and policy makers), and work that is consistent with what the Permittees determined was feasible in their GI Plans. Green infrastructure planning expectations include the retrofit requirement discussed above.
Provision C.10 will require Permittees to incur costs to control discharges of trash. These are largely continuing costs to implement controls required under MRP 2. Permittees will incur additional costs to proceed from MRP 2’s required 80 percent reduction in trash discharges to the Permit’s required 100 percent reduction, to be achieved using a combination of measures determined by each Permittee, and consisting of full trash capture, or implementation of a range of controls equivalent to full trash capture.
Absent more information on the specific costs the Permittees would incur for trash reduction, this economic analysis presents a range of costs from the economic analysis completed for the Trash Amendments.33 Statewide, the economic analysis estimates that between $2.93 and 7.77 more per resident might need to be spent each year for the next ten years to implement the proposed Trash Amendments. The economic analysis provides estimates of compliance costs and considers the incremental costs (those beyond current costs) MS4 dischargers may incur based on implementation provisions and time scheduled in the Trash Amendments.
Permittees typically use a combination of full trash capture devices and equivalent measures. The economic analysis calculated an average per capita cost of $9.68 for a mix of measures implemented by MS4 permittees outside the Los Angeles Region. The economic analysis also found that a broad range of compliance options is available to permittees. For example, the selection of full capture systems depends on many site-specific factors and conditions. The analysis reports that capital cost per unit ranges from $300 per catch basin insert for installation and $330 for annual maintenance, to $80,000 per vortex separator system for installation (capital costs) and $30,000 for annual maintenance. Different methods may cover different areas. For example, a drop inlet filter may cover only one acre, whereas a vortex separator system may 33 State Water Board Resolution No. 2015-0019. Amendment to the Water Quality Control Plan for Ocean Waters of California to Control Trash and Part 1 Trash Provisions of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California.
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cover many acres, and therefore a normalized cost per acre was estimated at $800 in capital cost and $342 in annual O&M.34
Large full trash capture devices may have substantially lower per-acre capital and O&M costs. For example, Permittees have successfully executed 18 cooperative implementation agreements (CIAs) with Caltrans as of the end of FY 2021, with a total funding contribution of over $55 million. These municipal partnership projects could potentially treat approximately 2,000 acres and 30,500 acres of Caltrans’ and municipalities’ significant trash generating areas, respectively.
In addition, Permittees may claim the benefit from other implemented controls, such as GSI, that also control trash. Thus, this estimate is conservative because there would not be additional cost to implement trash controls where GSI has been implemented, and in many cases the GSI will be implemented by a private party, so that Permittees will not incur the cost of construction, operation, or maintenance, although they would incur recoverable costs for plan review and inspection.
Water Board staff’s December 2019 analysis of Permittee trash control found that as of July 1, 2019, Permittees reported having controlled trash from 65,900 acres with a moderate, high, or very high trash generation rate, and that 52,600 acres remained to be controlled.35 Permittee work has continued since July 1, 2019, including substantial areas controlled by cooperative projects implemented in part with Caltrans funding (Table A-2). Caltrans funding will continue to be available to Permittees for qualifying projects, partly offsetting project costs.
In addition, Permittees would incur costs to prepare an impracticability report and to complete continuing reporting. These costs are expected to be within the estimate above.
34 State Water Bboard, June 2014. Draft Staff Report Including the Draft Substitute Environmental Documentation, Draft Amendments to Statewide Water Quality Control Plans to Control Trash, Appendix C: Economic Considerations for the Proposed Amendments to Statewide Water Quality Control Plans to Control Trash, p.C-44.
35 Kalyan, December 11, 2019. Staff Summary Report: Item 8. Municipal Regional Stormwater NPDES Permit, Permittee Compliance with the 80 Percent Trash Load Reduction Requirement – Information Item.
Water Board meeting of December 11, 2019.
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Table A-2. Caltrans-funded cooperative projects by FY 2021.
County Permittee Location/Project
Name
Funding
Agreement
Year
Estimated
Caltrans
Acres
Treated
Estimated
Permittee
Acres
Treated
Caltrans
Contribution
San
Mateo San Mateo Memorial Park - Phase 1 2017/2018
234.0 6,336.0
$9,500,000
San
Mateo San Mateo Memorial Park - Phase 2 2018/2019 $6,000,000 Contra
Costa Richmond Parkway and S. 8th Street 2017/2018 74.0 960.0 $2,500,000 San
Mateo San Mateo
Poplar/Dore
(implemented in
2019) and
Coyote Point
2017/2018 42.0 765.0 $2,123,000
Contra
Costa Richmond Meeker Slough 2018/2019 41.4 2,265.0 $3,000,000 Santa
Clara San Jose Various 2017/2018 480.0 2,728.0 $5,500,000 Alameda Hayward
2 locations -
Tennyson Arf
funded
2020 119.0 1,128.0 $1,841,000
Solano
Vallejo
Waste
Water
3 locations- BW
Williams and
Solano Ave +
Austin Creek
(amended)
2020 379.4 7,992.0 $3,338,000
San
Mateo
City of San
Mateo
Poplar Golf
Course 2019/2020 16.0 333.0 $830,000
San
Mateo
East Palo
Alto
O'Connor Pump
Station 2019/2020 39.0 864.0 $521,000
Alameda Alameda
County Estudillo Canal 2019/2020 256.0 2,620.0 $2,175,000 San
Mateo Daly City Vista Grande 2019/2020 154.0 1,915.8 $3,440,000 Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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County Permittee Location/Project
Name
Funding
Agreement
Year
Estimated
Caltrans
Acres
Treated
Estimated
Permittee
Acres
Treated
Caltrans
Contribution
Contra
Costa Concord Hillcrest Park Regional Project 2019/2020 90.0 509.3 $4,300,000 Contra
Costa
Contra
Costa
County
Tara Hills 2019/2020 41.0 457.8 $3,945,000
Contra
Costa
Richmond/El
Cerrito Bayview 2020/2021 31.0 840.0 $2,300,000
Alameda Oakland Mandela & 24th 2020/2021 16.8 583.9 $2,900,000 Alameda Emeryville MacArthur 2020/2021 3.8 77.0 $680,000 Santa
Clara Palo Alto Embarcadero 2020/2021 20.5 189.0 $598,000 Total 2,038 30,563 $55,491,000
Provision C.11 will require Permittees will incur costs to control discharges of mercury. Those costs are largely for continuing requirements and, thus, are expected to be broadly similar to MRP 2. To the extent that Permittees implement GSI retrofit to achieve mercury reductions, that work would also reduce PCBs loads. Because the same control action is likely to reduce both mercury and PCBs, estimated costs for implementation have been considered below, under the Provision C.12 discussion.
Provision C.12 will require Permittees to continue to implement measures to reduce discharges of PCBs consistent with the applicable TMDL. Key aspects of this provision are consistent, or roughly consistent, with expectations under MRP
2. Lower costs should be incurred for some expectations. For example, in MRP 2, the Permittees developed a demolition debris control program, which they are now implementing. The cost to develop the program was likely higher than the implementation cost, which consists significantly of outreach and education using materials prepared during MRP 2. There are some small additional costs (relative to the current cost of implementing the current demolition debris program) associated with enhanced requirements for the demolition debris program. These include small costs for additional efforts to obtain official Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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documentation to ensure that building materials from demolished buildings containing PCBs concentrations greater than 50 ppm were properly disposed.
There will also be small additional costs for demolition site inspection to ensure implementation of control measures at project sites to minimize off-site migration of PCBs. These inspection costs should be minor as economies of scale can be realized by integrating these inspections into the inspection program required pursuant to Provision C.6. Permittees will continue to investigate contaminated sites for referral to the Water Board, DTSC, or U.S. EPA for cleanup. While that may result in continuing costs or somewhat increased costs as compared to MRP 2, overall the requirements are expected to be roughly equivalent.
Permittees are expected to continue to implement actions to reduce discharges of PCBs to the MS4. These include implementing controls to capture PCBs before they can discharge to the MS4, which could include GSI, diversion of flows to the sanitary sewer for treatment, or other controls. To demonstrate progress towards achieving the wasteload allocation during the Permit term, Permittees are expected to address discharges from about 3,000 ac of impervious surface in old industrial areas using a combination of measures that they determine.
Based on the above GSI unit cost estimates, the cost to accomplish that reduction is likely to range from about $150 million to $2 billion, with a typical cost of about $639 million. This estimate is likely to be conservative (i.e., likely greater than the actual cost incurred) because GSI or treatment control measures implemented by private parties would reduce Permittee costs to selfimplement controls; Permittees can account for benefit from other actions, including their GSI retrofit work pursuant to Provision C.3 and implementation of trash controls pursuant to Provision C.10, and Permittees are likely to implement a mix of BMPs that is less costly than the maximum, and to include less-costly district-scale or regional BMPs. In addition, costs for diversion to sanitary sewers may be lower on a unit cost basis than GSI costs. A portion of project funding will be available from Caltrans pursuant to alternative compliance associated with its MS4 permit, and Caltrans ROW is constrained, so off-ROW implementation is a preferred path for Caltrans, which has indicated its intent to continue to support cooperative projects, including through its Clean California initiative.
Provision C.12 also requires the creation of a two new program to control PCBs.
The first program is to control PCBs when bridge and overpass roadways are replaced or undergo major repair. The costs associated with creation of this new program will be small because the effort consists in ensuring that roadway crews follow a protocol (to be developed by Caltrans) to ensure proper management and disposal of PCB-containing caulk in roadway expansion joints when bridge and overpass roadways are replaced or substantially repaired. Small additional Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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costs should be expected associated with the creation of the second new program Permittees must develop to ensure proper management of PCBs in oilfilled electrical equipment (OFEE) for municipally owned electrical utilities and collaborate with the Water Board to determine PCBs loadings in OFEE from non-municipally owned electrical utilities. Costs for both of these new programs is expected to be small because both involve simply making sure that proper procedures are being followed.
Provision C.14 requires Permittees to control discharges of bacteria consistent with applicable TMDLs or to address identified exceedances of water quality objectives.
Provision C.14.a requires two Permittees, the cities of Mountain View and Sunnyvale, to implement measures to control bacteria to address identified exceedances of water quality objectives. While this work is being called out in a subprovision that was not present in MRP 2, the expectations largely reflect continuation of work the cities were implementing during MRP 2 pursuant to MRP 2’s, and the Permit’s, prohibition on discharges of non-stormwater to the MS4. That includes evaluation of municipal operations for bacteria discharges, inspect for illicit connections of sanitary flows to the storm sewer system, incorporation of bacteria concerns into commercial and industrial business inspections, provision of pet waste stations, collection of trash, control of bacteria sources associated with unsheltered homeless populations, and public outreach. C.14.a requires the Permittees to focus or increase these actions, which are also conducted across municipalities broadly, in areas near the known bacteria water quality exceedance locations. The cities may incur additional incremental costs associated with additional inspections, coordination with the sanitary sewer agencies on collection system operation and maintenance, and greater levels of effort in each of the categories. These costs are expected to be recoverable through inspection fees with existing staff resources. Where new actions are required, their unit costs are expected to be similar to those presented in the San Pedro Creek and Pacifica State Beach Bacteria TMDL Staff Report, Section 12.3: Economic Considerations,36 and with estimates presented above for green stormwater infrastructure implementation.
Provision C.14.c requires the City of San Mateo to control discharges of bacteria to its Marina Lagoon beaches. Similar to Provision C.14.a, the initial measures are continued effort, with incremental expansion, of existing work required under MRP 2, like illicit discharge detection and elimination, trash control, and public information and outreach. The City is expected to incur some additional costs for a potentially elevated level of effort, including monitoring. If water quality objectives are not achieved, then the City will incur costs to complete a report 36 San Francisco Bay Regional Water Board, Nov. 2012. TMDL for Bacteria in San Pedro Creek and at Pacifica State Beach: Staff Report. pp.105-110).
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evaluating additional actions sufficient to achieve the objectives, which may lead to costs in this permit term. Depending on the report content, an outside contractor may charge approximately $70,000 – 200,000 to complete this report (assuming a contractor rate of $150/hr).
Provision C.14.d requires the City of Half Moon Bay and San Mateo County to control bacteria discharging to Pillar Point Harbor and Venice Beach. Similar to Provision C.14.a, the initial measures are continued effort, with incremental expansion, of existing work required under MRP 2, like beach bacteria monitoring, illicit discharge detection and elimination, trash control, and public information and outreach. Expansion of work includes, for example, including bacteria control in staff training. The City and County may incur some additional costs for a potentially elevated level of effort. If water quality objectives are not achieved, then the City and County will incur costs to complete a report evaluating additional actions sufficient to achieve the objectives, which may lead to costs in a subsequent permit term.
The Permittees covered by the above C.14 subprovisions could implement green stormwater infrastructure to eliminate discharges and reduce bacteria concentrations in remaining discharges. Where GSI is implemented pursuant to Provision C.3 requirements, there is not expected to be an additional cost to the Permittees for a bacteria control benefit to be realized. Similarly, trash control measures implemented pursuant to Provision C.10 may provide some bacteria control benefit, but would not result in additional incremental costs to the Permittees. However, where the Permittees undertake control actions, such as green stormwater infrastructure retrofit, that go beyond Provision C.3 requirements, then the cost of that work would be expected to be consistent with the estimates presented above for Provisions C.3 and C.12.
Provision C.18 requires the County of San Mateo to control discharges of sediment in the Pescadero-Butano watershed consistent with the applicable TMDL. Specifically, the County would be required to create a prioritized list of road projects with the potential to contribute sediment to the Pescadero-Butano and San Gregorio watersheds. The County would be required to take measures to reduce sediment delivery from County roads in the Pescadero-Butano watershed. The Water Board staff report for the TMDL economic analysis estimated such costs at about $35,000 per mile for unpaved roads, and $60,000 per mile per paved roads. The total lengths of roads to be controlled under the TMDL are 325 (unpaved) and 325 (paved), and the total costs for the work were estimated at about $37 million over a 20-year implementation period.37 The Permit requires implementation of actions in 20 percent of the PescaderoButano watershed, but none in the San Gregorio Creek watershed during this 37 San Francisco Bay Regional Water Quality Control Board, Dec. 11, 2018. TMDL for Sediment and Habitat Enhancement Plan for Pescadero-Butano Watershed: Staff Report.
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Permit term. As a result, implementation costs are estimated conservatively at about $7.2 million during the Permit term. However, projects may be completed as part of other prioritized maintenance projects or otherwise such that the Permittee does not incur that full level of costs, but rather a reduced amount that is offset by the Permittee’s costs for projects it would have completed anyway. In addition, the Permittee may incur costs associated with creating the prioritized list and with monitoring the effectiveness of completed projects. d. New provisions
Although C.17, C.20, and C.21 are new provisions, their substantive requirements generally reflect work that was already required or already being completed, as described further below. Permittees may incur costs for going beyond required or continuing work.
Provision C.17 requires Permittees to coordinate internally and use existing resources to report on the locations of homeless populations in their jurisdictions. Permittees already have this information at different levels of detail.
Some permittees, such as Fremont, Oakland, and San Jose, have detailed databases or maps of populations; other Permittees are small enough that municipal staff are familiar with where the populations are located; others rely on heat maps for a general understanding. The Permit allows flexibility in this reporting, but Permittees would be expected to incur a modest cost to collect and report this information.
Permittees must collectively prepare a BMP report that identifies what Permittees and stakeholders are doing to control discharges associated with unsheltered homelessness, and the effectiveness of these controls. Permittees are likely to incur costs for coordination and report preparation. In addition, Permittees must prepare two reports on their implementation of BMPs, including the portion(s) of the population reached and the gap—that is, the work left to be done.
MRP 2 required the Permittees to control illicit non-stormwater discharges, including discharges of trash and human waste from unsheltered homeless populations. To the extent that Provision C.17 simply refines and clarifies the pre-existing mandate, it is a continuing requirement, with an additional expectation for coordination and reporting as noted above.
Overall, the solutions to homelessness are broadly outside Permit requirements.
A 2015 report found that effective implementation of such solutions, such as providing housing to unsheltered individuals, could reduce costs to government, because shifting costs from emergency services and the justice system use to housing and jobs would be cheaper and generate more revenue than the status Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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quo.
38 Thus, while there is a cost to implementing measures to address unsheltered homelessness, the overall effect of implementing effective measures, including those to control discharges of trash and human waste, could be to reduce costs to government.
Provision C.20 requires Permittees to develop a cost reporting methodology by December 31, 2022, and then to submit fiscal analyses annually starting in 2024. Permittees are expected to incur costs to collectively develop the methodology and then to implement it. In general, this provision requires tracking and reporting of information that should be available, but for which there will be needed internal coordination. The work to prepare a methodology allows flexibility to understand the form that cost information is available and develop efficient means for reporting. The work likely to be completed using existing Permittee staff resources and consulting assistance available within the programs.
Provision C.21 requires development of an asset management program to manage Permittee (i.e., public) hard assets (e.g., bioretention cells, pervious pavements, trash capture devices). The asset management plan is expected to improve the Permittees’ understanding of the condition and performance of their stormwater infrastructure, to account for additional stressors related to climate change, and to identify cost factors to support more-accurate forecasting and budget development.
U.S. EPA’s Water Finance Clearinghouse and the CSU Sacramento Office of Water Program’s Environmental Finance Center (EFC) are conducting work to support stormwater asset management. The EFC has developed draft stormwater finance and asset management guidance and toolkits, including resources for estimating stormwater costs, and is supporting California municipal stormwater programs to test and refine the toolkit with the intent of using the results of asset management planning to support the development of stormwater utilities to fund stormwater programs.39
The Permittees have implemented measures to support asset management planning. They have mapped many of their hard assts (e.g., structural stormwater control measures) and regularly inspected them to determine their condition. They use modern data collection tools, including databases and GIS systems, to improve information collection and tracking efficiencies and improve their understanding of the condition and performance of their stormwater assets.
The Water Board expects the Permittees’ costs to comply with the Permit’s 38 Flaming et al., 2015. Home not found: The cost of homelessness in Silicon Valley. Destination Home and the County of Santa Clara.
39 Odusoga, March 28, 2019. “Asset Management Storm Water Roundtable Presentation,” U.S. EPA, slide 28.
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asset management requirements to be mitigated to some degree by these efforts.
Asset management results in potential cost savings over time and may provide a sound basis for establishing utility fees to support sustained funding of stormwater programs, but the initial investment of resources and time can be high. The City of San Diego’s much more comprehensive asset management plan (including, for example, hard assets like flood management infrastructure and soft assets like outreach materials) was developed over a period of about five years and cost approximately $2 million, not including staff time.40 Since 2013, when the plan was finished, San Diego has spent as much or more on follow-up work, like expanding its asset inventory. $4 million is a significant investment, but for context, San Diego has a roughly $3 billion stormwater quality and flood management program over 18 years. There are also costsaving benefits for an effective asset management program.41 San Diego’s asset management plan is significantly larger in scope than that required by the Permit, which focuses on publicly owned hard assets. As a result, Permittee costs to develop asset management plans are expected to be substantially less, in part because, as noted above, they are primarily tracking and reporting on existing controls for which MRP 2 already required tracking and reporting efforts, and for which the Permittees have established systems to accomplish that work. As such, the asset management approach primarily will require organization of existing efforts with an additional incremental cost.
5. Costs of Not Implementing the Permit
While it is important to consider the cost of compliance, it is also important to consider the costs that would be incurred by not fully regulating or controlling MS4 discharges to receiving waters. The Water Boards have long recognized that water quality impairment negatively impacts the economy, while improved water quality can have a positive impact (see, for example, Order WQ 2000-11). The costs of not implementing the Permit are likely to be significant and could include adverse impacts to public health associated with illness from water contact recreation and ingestion of water with harmful levels of pathogens; increased threat of disease, including cancer, from consumption of fish containing harmful levels of mercury and PCBs; threats to public and private infrastructure, properties, and aquatic habitat from erosion and sedimentation; impacts to contact and non-contact water recreation, including swimming, boating, surfing, wind- and kite-surfing, wading, birding, walking, and hiking, associated with discharges of trash; impacts to property 40 Region 3 Water Board Fact Sheet for Order No. R3-2019-0073, Citing personal communication with Drew Kleis, Deputy Director, City of San Diego Transportation and Storm Water Department Storm Water Division, April 22, 2019.
41 URS Corporation. July 19, 2013. Transportation and Storm Water Department Storm Water Division:
Watershed Asset Management Plan, City of San Diego. p.7.
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values associated with the short- or long-term presence of pollutants in receiving waters, and associated impacts to the Bay Area quality of life, that includes a significant outdoor component engaged with the Bay Area’s water bodies. Below, a few of these costs are discussed in more detail.
Impairments in water quality can lead directly to increased health care costs. Urban runoff in southern California has been found to cause illness in people bathing near storm drains.42 A study of south Huntington Beach and north Newport Beach found that an illness rate of about 0.8 percent among bathers at those beaches resulted in about $3 million annually in health-related expenses.43 These numbers can likely be extrapolated to the Bay Area, where many beaches support significant contact recreation while at the same time exhibiting bacteria impairments. Thus, failure to bacteria controls could result in significant health expenses to the public, while implementing such controls could result in significant savings.
Urban runoff and its impact on receiving waters also place a cost on tourism. The California Division of Tourism has estimated that each out-of-state visitor spends $101 a day. The experience of Huntington Beach provides an example of the potential economic impact of poor water quality. Approximately 8 miles of Huntington Beach were closed for two months in the middle of summer of 1999 due to bacteria exceedances, impacting beach visitation and undoubtedly impacting the local economy.
Similarly, proper trash management can save a municipality significant amounts of money in addition to providing water quality benefits. Even with the changes in recycling markets over the past few years, certain items, such as metals, remain profitable to divert from residential waste streams.44 Similarly, adequate trash pickup and collection can cut down on complaints by residents and the resources associated with responding to them45 and can also reduce the costs of maintaining full-trash capture devices.46 Finally, source control methods, such as bans, taxes, or fees that reduce the use of certain items, can generate an income stream for local 42 Haile, R.W., et al, 1996. An Epidemiological Study of Possible Adverse Health Effects of Swimming in Santa
Monica Bay. Santa Monica Bay Restoration Project.
43 Los Angeles Times, May 2, 2005. Here’s What Ocean Germs Cost You: A UC Irvine Study Tallies the Cost of
Treatment and Lost Wages for Beachgoers Who Get Sick.
44 Brosnahan, Cori. “Despite Recycling Success, S.F.’s Zero Waste Goal Remains Elusive,” San Francisco Public Press (Nov. 6, 2020).
45 Daly, Clara-Sophia. “Newsom’s experiment to get rid of public trash bins in San Francisco seems to have failed,” Mission Local (March 21, 2021).
46 San Francisco Estuary Partnership, “Bay Area-wide Trash Capture Demonstration Project,” (May 8, 2014), pp. 39-40.
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governments, reduce full trash capture maintenance costs, and reduce tipping fees for disposing of the materials removed from the devices.47 As noted above, the costs of not implementing the Permit are likely to be significant, including economic and non-economic: adverse impacts to public health associated with illness from water contact recreation and ingestion of water with harmful levels of pathogens; increased threat of disease, including cancer, from consumption of fish containing harmful levels of mercury and PCBs; threats to public and private infrastructure, properties, and aquatic habitat from erosion and sedimentation; impacts to contact and non-contact water recreation, including swimming, boating, surfing, wind- and kite-surfing, wading, birding, walking, and hiking, associated with discharges of trash; impacts to property values associated with the short- or longterm presence of pollutants in receiving waters, and associated impacts to the Bay Area quality of life, that includes a significant outdoor component engaged with the Bay Area’s water bodies.
The Santa Clara Valley Open Space Authority, focusing on open space, estimated that ecosystem services in Santa Clara County provide an estimated benefit of $1.6 to 3.8 billion annually, or about $1,900 to 4,600 per acre, noting they were provided by “natural capital like…wetlands, rivers and streams…as well as urban parks and open spaces.48 In the absence of the Permit, as noted above, those services are likely to be impaired, resulting in reduced economic value to Santa Clara County and the Bay Area. Extrapolating that estimate to the other four counties with MRP Permittees shows a potentially even more significant economic impact from not implementing the Permit.
The Center for Neighborhood Technology issued a 2010 guide to recognizing the value of one component of the Permit’s program, green infrastructure.49 The guide includes descriptions of impacts in the absence of GI implementation, including higher costs for alternate means of accomplishing the benefits, reduced community livability, and impacts to public health.
47 EOA, City of Milpitas Trash Capture Feasibility Study, 2017, pp. 1, 13 (estimating reduction achieved by plastic bag ban and achievable by polystyrene ban.); see also Stieb, Matt. “Maine Makes U.S.
Recycling Actually Work Again,” New York Magazine (July 21, 2021). 48 Santa Clara Valley Open Space Authority, 2014. Healthy Lands and Healthy Economies: Nature’s Value in Santa Clara County.
https://www.openspaceauthority.org/system/user_files/Documents/NaturesValue_SCC_int.pdf.
Santa Clara Valley Open Space Authority, 2018. Healthy Lands and Healthy Economies: Natural Capital in Santa Clara, Santa Cruz, and Sonoma Counties.
https://www.openspaceauthority.org/system/user_files/Documents/HLHE%20- %20Regional%20Report.pdf.
49 Center for Neighborhood Technology, 2010. The Value of Green Infrastructure: A guide to recognizing its economic, environmental and social benefits.
https://www.cnt.org/sites/default/files/publications/CNT_Value-of-Green-Infrastructure.pdf.
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6. Benefits associated with implementing the Permit
Permit implementation must also be viewed in terms of its value, both quantitative and qualitative, to the public. One way of measuring this value quantitatively is by estimating how willing residents are to pay for improvements to water quality.
However, benefits from stormwater controls go beyond improving water quality.
They include reducing the urban heat island effect, helping to make the water supply more reliable and cost effective, and supplying ecosystem services. These benefits are discussed in more detail below.
a. Public Willingness to Pay for Water Quality Improvement U.S. EPA estimated household willingness to pay for such improvements to be $158 - 210 annually or $13 - $17.50 monthly.50 This estimate can be considered conservative, since it does not include important considerations such as marine waters benefits, wildlife benefits, or flood control benefits. The California State University, Sacramento, study corroborates U.S. EPA’s estimates, reporting annual household willingness to pay for statewide clean water to be $180, or $15 monthly.51 When viewed in comparison to household costs of existing urban runoff management programs, these household willingness to pay estimates exhibit that per household costs incurred by Permittees to implement their urban runoff management programs remain reasonable.
Los Angeles voters’ 2018 approval of Measure W, which imposes a parcel tax that is projected to raise approximately $300 million per year to clean stormwater runoff, promote capture and use projects, and add urban green space, is another indication of willingness to pay for water quality improvement. Measure W, which imposes an impervious surface-based fee, was estimated to cost a typical household about $83/year.52 That cost is necessarily in addition to existing expenditures in LA for clean water, which include, but are not limited to, urban runoff management program costs of up to $67 per household. This is consistent with the U.S. EPA and California State University, Sacramento findings above.
A study conducted by USC/UCLA assessed the costs and benefits of implementing various approaches for achieving compliance with the MS4 permits in the Los Angeles Region. The study found that non-structural systems would cost $2.8 billion but provide $5.6 billion in benefit. If structural systems were determined to be needed, the study found that total costs would be $5.7 to 50 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations. p. 68793.
51 State Water Board, 2005. NPDES Stormwater Cost Survey. p. iv. 52 McNary, Oct. 19, 2018. Measure W: A needless tax on rain, or LA’s best solution to drought? LAist. https://laist.com/news/measure-w-a-new-tax-on-landowners-to-catch-las-rain.
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$7.4 billion, while benefits could reach $18 billion.53 Costs are anticipated to be borne over many years – probably ten years at least. Thus, the benefits of the programs are expected to considerably exceed their costs. Such findings are corroborated by U.S. EPA, which found that the benefits of implementation of its Phase II stormwater rule would also outweigh the costs.54 b. Urban Heat Island Mitigation
Installing green infrastructure mitigates urban heat island effects, with greater returns on investment for installations located in areas lacking tree canopies and green spaces. In urban areas, buildings and pavement retain heat, making them hotter than surrounding non-urban areas, known as the urban heat island effect.
Climate change will continue to exacerbate urban heat island effects, but trees and vegetation can decrease local temperatures, particularly if they are distributed throughout an area. Reduced temperatures during hot weather not only make it more comfortable for people to recreate outside, but can also save lives during extreme heat events. The San Francisco Estuary Institute found that if Los Angeles County had tree coverage at 40 percent, as opposed to the baseline of 16 percent, during a September 2010 dry Santa Ana event, there would have been a 29 percent reduction in mortality, equivalent to saving 23 lives. In Los Angeles, De Guzman et al. (2020) found that relative to the average mortality rate, during an average five-day heat wave in Los Angeles County there are 4.1 percent more deaths on the first day and 11.9 percent more deaths on the fifty day.55 While the study only modeled mortality, it can reasonably be expected that hospitalizations and health conditions brought on by heat stress would be reduced, as well. In addition to trees, other GSI, such as bioswales, rain gardens, and green roofs can also reduce temperatures.56 Installing green infrastructure in economically disadvantaged areas may have additional benefits. In metropolitan areas nationwide, neighborhoods with lower median household incomes are associated with less urban tree cover.57 In areas where the federal government historically redlined, current average incomes tend to be lower and temperatures tend to be hotter because of historic 53 LA Regional Water Board, 2004. Alternative Approaches to Stormwater Control. 54 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations. P. 68791.
55 De Guzman, et al., 2020. Rx for Hot Cities: Climate Resilience Through Urban Greening and Cooling in Los Angeles. TreePeople. https://www.treepeople.org/wp-content/uploads/2020/09/RX-for-hot-citiesreport.PDF 56 Georgetown Climate Center. ND. Green infrastructure strategies and techniques. https://www.gerogetownclimate.org/adaptation/toolkits/green-infrastructure-toolkit/green-infrastructurestrategies-and-techniques.html 57 Schwarz et al., 2015. Trees grow on money: Urban tree canopy cover and environmental justice. PLoS ONE 10(4): e0122051. https://doi.org/10.1371/journal.pone.0122051 Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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disinvestment in those neighborhoods.58 Deaths from heat waves are disproportionately suffered by the poor.59 Accordingly, green infrastructure projects in economically disadvantaged areas could help to alleviate longstanding inequities and improve health outcomes for particularly vulnerable populations.
c. Water Supply Cost Savings and Co-Benefits
Stormwater capture can be an effective way for Permittees to achieve the goals of the CWA and Permit requirements by preventing stormwater and associated pollutants from discharging to receiving waters, although Bay Area soils with limited infiltration rates can limit the applicability of measures that rely substantially on infiltration. Stormwater capture has also become the focus of intense interest during California’s current drought and in the wake of California’s most-recent 2012-2019 drought. The Water Boards have recognized the importance of treating stormwater as a valuable resource where capture and use can result in water supply cost savings, as well as multiple other benefits within a watershed. Among other efforts, the State Water Board’s Strategy to Optimize Resource Management of Stormwater (STORMS) seeks to promote stormwater capture and use. STORMS’ recent 2018 report, Enhancing Urban Runoff Capture and Use, points out that among a variety of benefits, “stormwater capture can also reduce reliance on imported water from distant sources, which reduces inter-basin (or inter-region) transfers and polluted runoff.
Stormwater supports the fit-for-purpose water supply concept by satisfying lesssensitive water demands, such as certain household, landscaping, and commercial needs, with mildly polluted water. Runoff from roads and driveways can be captured and harvested locally using distributed hybrid systems (for example, bioretention with an underdrain that feeds a cistern used for irrigation) configured to provide non-potable water for human use.”60 The Permit supports investment in infrastructure to create a resilient local water supply. The potential for water usage from stormwater is significant, with Diringer et al. (2020) from the Pacific Institute estimating that stormwater capture from paved surfaces and rooftops in the urbanized Bay Area and Southern 58 Hoffman, et al., 2020. The effects of historical housing policies on resident exposure to intra-urban heat: a study of 108 U.S. urban areas. Climate. https://www.mdpi.com/2225-1154/8/1/12/htm 59 Kesslen, Ben. “Heat waves fall hardest on poor and elderly, experts say,” NBC News (July 20, 2019); Kaplan, Sarah, “Heat waves are dangerous. Isolation and inequality make them deadly,” Washington Post (July 21, 2021).
60 State Water Board, April 10, 2018. STORMS: Projects 1a Promote Stormwater Capture and Use and 1b Identify and Eliminate Barriers to Stormwater Capture and Use. Products 1 – CSU Sacramento. Final Report: Enhancing Urban Runoff Capture and Use. pp. 18-19/ Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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California could add 420,000 to 630,000 acre-feet in average annual water supply, or about 6 to 10 percent of annual water usage in those areas in 2014.61 The Permit gives Permittees the flexibility to develop multi-benefit stormwater management projects that will improve water quality while also providing benefits such as recharging of groundwater basins for local water supply and implementation of LID and green streets policies. Shimabaku et al. (2018) from the Pacific Institute emphasizes that effective urban stormwater capture provides an opportunity to address multiple benefits, including flood control, water quality impairments, improving water supply reliability, providing habitat, reducing urban temperatures, reducing energy use, creating community recreation spaces, and increasing property values.62
Diringer et al. analyzed stormwater capture project costs and benefits as they affect the cost of an acre-foot of water. They found that failing to consider the effects of co-benefits results in inflated net project costs. They gathered data from rounds 1 and 2 of Prop 1E and Prop 84 project proposals. Of a total of fifty projects, 26 addressed urban runoff and 24 dealt with non-urban runoff. The authors found that after accounting for the projects’ benefits, the net levelized cost for urban stormwater capture projects decreased from $1,030/acre-foot to $150/acre-foot, with some projects yielding net benefits. Monetized benefits considered in their calculation included flood damage reduction, water quality, energy savings, community recreation, public use, property values, habitat value, CO2 equivalents, and avoided costs. Because many projects reported limited benefits categories, the overall cost per acre-foot would likely be even lower than $150 when other cobenefits are considered.
d. Ecosystem Services Benefits
In addition to the foregoing, there are various other environmental benefits resulting from the Permit. For example, the 2018 STORMS report describes a range of benefits of capture and use, suggesting that “designing stormwater infrastructure to directly support ecosystems broadens the traditional approach to stormwater management. In this broader sense, retained stormwater can be put into soil where soil biota, macrophytes, and stream interflow systems improve water quality and ecosystems supported by baseflow or high groundwater. Ecosystem benefits include habitat improvement, increased food sources, carbon sequestration, pollutant uptake, reduced ozone, and reduced heat island effects…. Improved baseflow results in decreased water temperatures and prolonged dry weather flows, and increased amounts and 61 Diringer et al., March 24, 2020. Economic evaluation of stormwater capture and its multiple benefits in California. PLoS ONE 15(3): e0230549.
62 Shimabuku et al., June 2018. Stormwater capture in California: Innovative policies and funding opportunities. Pacific Institute. p.2.
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types of soil biota will aid in carbon sequestration and pollutant uptake. Local stormwater capture can also lead to energy-saving schemes that (1) capture water before it becomes contaminated with the pollutants on streets and in sewers; (2) rely on energy-efficient processes for removing contaminants; (3) treat water only to the extent necessary for intended use (fit-for-purpose water); and (4) obviate the need for diversion and large, centralized, energy-intensive treatment and distribution approaches.”63
e. Other Benefit Considerations
The Pacific Institute and the University of Santa Barbara’s Bren School of Environmental Science and Management framed the topic of moving towards multiple benefit approaches for water management. The organizations plan to develop a systematic framework for identifying and incorporating the costs and benefits of water management strategies into decision making. They find a broader consideration of the benefits associated with water management decisions will achieve broader project support, avoid unintended consequences, optimize resources and cost sharing, and increase transparency.”64 Such a framework would support a more robust consideration of potential economic benefits of stormwater management projects not considered in this economic analysis, such as:
Reduced frequency, area, and impact of flooding. Stormwater BMPs that reduce runoff volumes and consequently flood volumes. The decrease in potential damage provides economic benefit.
Reduced cost of public infrastructure. On-site volume control and stormwater BMPs can downsize or eliminate stormwater conveyance infrastructure, and reduce costs to address downstream erosion and sedimentation, resulting in reduced costs.
Reduced water treatment costs. A reduction in runoff volume can reduce downstream costs of water treatment, while also increasing the value of riparian properties and the utility of recreational visitors. Stormwater BMPs that include infiltration can improve and sustain stream baseflow conditions to better maintain downstream habitat.65
Increased property values where GSI and LID projects are implemented. In a series of studies listed in a 2013 U.S. EPA report, the benefit-to-cost ratios of 63 State Water Board, April 10, 2017. Enhancing Urban Runoff Capture and Use. STORMS Projects 1a and 1b.
64 Pacific Institute and Bren School, April 2019. Executive Summary: Moving toward a multi-benefit approach for water management. UCSB. pp. II-III.
65 WERF, 2010. Using rainwater to grow livable communities. Web.
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four LID/GSI projects in Sun Valley were listed. All four showed a ratio of greater than 1, indicating that, over the 50-year evaluation period, the benefits of these projects are higher than their cost.66 Considering the foregoing, the Water Board finds that the requirements in this Order are reasonably necessary to protect beneficial uses and the economic cost information supports protecting those beneficial uses.
V. RELEVANT STATUTES, REGULATIONS, PLANS AND
POLICIES
A. Legal Authorities
This Order is issued pursuant to CWA section 402 and implementing regulations adopted by the U.S. EPA and CWC chapter 5.5, division 7 (commencing with section 13370). This Order serves as an NPDES permit for point source discharges to surface waters. This Order also serves as waste discharge requirements pursuant to CWC article 4, chapter 4, division 7 (commencing with section 13260).
In addition to the legal authority citations below, they are also provided with each permit provision in this Fact Sheet.
CWA 402(p)(3)(B)(ii) – The CWA requires in section 402(p)(3)(B)(ii) that permits for discharges from municipal storm sewers “shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers.” CWA 402(p)(3)(B)(iii) – The CWA requires in section 402(p)(3)(B)(iii) that permits for discharges from municipal storm sewers “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.”
40 CFR 122.26(d)(2)(i) – Federal NPDES regulations 40 CFR 122.26(d)(2)(i) require that each Permittee’s permit application “shall consist of: (i) Adequate legal authority. A demonstration that the applicant can operate pursuant to legal authority established by statute, ordinance or series of contracts which authorizes or enables the applicant at a minimum to: (A) Control through ordinance …or similar means, the contribution of pollutants to the municipal storm sewer by storm water discharges associated with industrial activity and the quality of storm water discharged from sites of industrial activity; (B) Prohibit through ordinance, order or similar means, illicit discharges to the municipal separate storm sewer; (C) Control through ordinance, order or similar means the discharge to a municipal separate 66 U.S. EPA, August 2013. Case studies analyzing the economic benefits of low impact development and green infrastructure programs, EPA 841-R-13-004.
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storm sewer of spills, dumping or disposal of materials other than storm water; (D) Control through interagency agreements among co-applicants the contribution of pollutants from one portion of the municipal system to another portion of the municipal system; (E) Require compliance with condition in ordinances, permits, contracts or orders; and (F) Carry out all inspection, surveillance and monitoring procedures necessary to determine compliance and noncompliance with permit conditions including the prohibition on illicit discharges to the municipal separate storm sewer.”
40 CFR 122.26(d)(2)(iv) – Federal NPDES regulation 40 CFR 122.26(d)(2)(iv) requires “a comprehensive planning process which involves public participation and where necessary intergovernmental coordination, to reduce the discharge of pollutants to the maximum extent practicable using management practices, control techniques and system, design and engineering methods, and such other provisions which are appropriate. The program shall also include a description of staff and equipment available to implement the program. […] Proposed programs may impose controls on a system wide basis, a watershed basis, a jurisdiction basis, or on individual outfalls. […] Proposed management programs shall describe priorities for implementing controls.”
40 CFR 122.26(d)(2)(iv)(A -D) – Federal NPDES regulations 40 CFR 122.26(d)(2)(iv)(A -D) require municipalities to implement controls to reduce pollutants in urban runoff from new development and significant redevelopment, construction, and commercial, residential, industrial, and municipal land uses or activities. Control of illicit discharges is also required.
CWC 13377 – CWC section 13377 requires that “[n]otwithstanding any other provision of this division, the state board or the regional boards shall, as required or authorized by the CWA, as amended, issue waste discharge requirements and dredged or fill material permits which apply and ensure compliance with all applicable provisions of the act and acts amendatory thereof or supplementary, thereto, together with any more stringent effluent standards or limitation necessary to implement water quality control plans, or for the protection of beneficial uses, or to prevent nuisance.”
B. State and Federal Regulations, Policies, and Plans
1. Water Quality Control Plans – San Francisco Bay and Sacramento and San Joaquin River Basins
The CWA requires the Water Board to establish water quality standards for each water body in its region. Water quality standards include beneficial uses, water quality objectives and criteria that are established at levels sufficient to protect beneficial uses, and an antidegradation policy to prevent degrading of waters. The Water Board adopted the Water Quality Control Plan for the San Francisco Bay Basin (Basin Plan), which designates beneficial uses, establishes water quality Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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objectives, and contains implementation programs and policies to achieve those objectives for all waters addressed through the plan.
Section 4.14, the Urban Runoff Management, Comprehensive Control Program section, of the Basin Plan, requires the Permittees to address existing water quality problems and prevent new problems associated with urban runoff through the development and implementation of a comprehensive control program focused on reducing current levels of pollutant loading to storm drains to the maximum extent practicable. The Basin Plan’s comprehensive program requirements are designed to be consistent with federal regulations (40 CFR Parts 122-124) and are implemented through issuance of NPDES permits to owners and operators of MS4s. Pursuant to CWC sections 13263 and 13377, the requirements in this Order implement the Basin Plan.
Section 4.8 - Stormwater Discharges of the Basin Plan established the Water Board’s phased approach towards attainment of water quality objectives in waters that receive stormwater discharges and recurrent permit term consideration of water quality based effluent limitations, wherein the Water Board will first require entities subject to NPDES permits for stormwater discharges to complete implementation of technically and economically feasible control measures to reduce pollutants in stormwater to the maximum extent practicable. NPDES permits for stormwater discharges will require completion of technically and economically feasible control measures as soon as possible. If this first phase does not result in attainment of water quality objectives, the Water Board will consider permit conditions which may require implementation of additional control measures. In such circumstances, the Water Board may consider dischargers' proposed schedules for identification and implementation of additional control measures designed to attain water quality objectives. Such schedules shall be as short as practicable and will only be considered for inclusion in permits when a discharger has demonstrated the following:
(a) A diligent effort to quantify pollutant levels and the sources of the pollutant in stormwater discharges; and
(b) Documentation of completion of implementation of all technically and economically reasonable control measures.
The Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Region 5 Basin Plan) similarly includes water quality standards for each water body it covers, including total maximum daily loads. It contains requirements for MS4 permittees that discharge into waters covered by the plan, such as the East Contra Costa Permittees.
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2. Ocean Plan
In 1972, the State Water Board adopted the Water Quality Control Plan for Ocean Waters of California, California Ocean Plan (Ocean Plan). The State Water Board adopted the most recent amended Ocean Plan on October 16, 2012, and it was approved by the Office of Administrative Law and U.S. EPA. The Ocean Plan is applicable, in its entirety, to ocean waters of the state. In order to protect beneficial uses, the Ocean Plan establishes water quality objectives and a program of implementation. Pursuant to CWC sections 13263 and 13377, the requirements of this Order implement the Ocean Plan.
The Ocean Plan prohibits the discharge of waste to designated Areas of Special Biological Significance (ASBS). ASBS are ocean areas designated by the State Water Board as requiring special protection through the maintenance of natural water quality. The California Ocean Plan states that the State Water Board may grant an exception to California Ocean Plan provisions where the State Water Board determines that the exception will not compromise protection of ocean waters for beneficial uses and the public interest will be served. In 2012, the State Water Board adopted Resolutions 2012-0012 and 2012-0031 (ASBS Exception), which grant an exception to the Ocean Plan prohibition on discharges to ASBS for a limited number of applicants, including San Mateo County for stormwater discharges into the James V. Fitzgerald Marine Reserve ASBS. The ASBS Exception contains “Special Protections” to maintain natural water quality and protect the beneficial uses of the ASBS. In order to legally discharge into an ASBS, San Mateo County must comply with the terms of the Special Protections and obtain coverage under this Order. This Order incorporates the terms of the Special Protections for San Mateo’s discharges into the ASBS.
3. Inland Surface Waters, Enclosed Bays, and Estuaries Plan The State Water Board adopted various provisions that collectively which make up the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries (ISWEBE) of California. Part 1 Trash Provisions was adopted by the State Water Board on April 7, 2015 through Resolution No. 2015-0019. OAL approved it on December 2, 2015 and U.S. EPA approved it on January 12, 2016. Part 2 Tribal Subsistence Beneficial Uses and Mercury Provisions was adopted by State Board on May 2, 2017 through Resolution No. 2017-0027. OAL approved it on June 28, 2017 and U.S. EPA approved it on July 14, 2017. Part 3 Bacteria Provisions and Variance Policy was adopted by State Board on August 7, 2018 through Resolution No. 2018-0038. OAL approved it on February 4, 2019 and U.S. EPA approved it on March 22, 2019. This Order implements the ISWEBE.
4. Statewide Trash Provisions
To control trash, the State Water Board on April 7, 2015, adopted trash provisions into both the Ocean Plan and the ISWEBE. Together, they are collectively referred Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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to as “the Trash Amendments.” The Trash Amendments: (1) establish a narrative water quality objective for trash, (2) establish a prohibition on the discharge of trash, (3) provide implementation requirements for permitted storm water and other discharges, (4) set a time schedule for compliance, and (5) provide a framework for monitoring and reporting requirements. The Water Board is required to implement the new Trash Provisions through NPDES permits for MS4 permits. The water quality objective established by the Trash Provisions serves as a water quality standard federally mandated under CWA section 303(c) and the federal regulations (33 U.S.C. § 1312, 40 CFR § 131.). This water quality standard was specifically approved by U.S. EPA following adoption by the State Water Board and approval by the Office of Administrative Law. This Order implements the Trash Amendments.
5. Enclosed Bays and Estuaries Plan
In 2008, the State Water Board adopted the Water Quality Control Plan for Enclosed Bays and Estuaries – Part 1, Sediment Quality Provisions. It is was most recently amended on June 5, 2018 and became effective on March 11, 2019. This plan supersedes other narrative sediment quality objectives and establishes new sediment quality objectives and related implementation provisions for specifically defined sediments in most bays and estuaries. This Order implements the Sediment Quality Provisions to the extent they are applicable.
6. National Toxics Rule (NTR) and California Toxics Rule (CTR) U.S. EPA adopted the NTR on December 22, 1992, and amended it on May 4, 1995 and November 9, 1999. About 40 criteria in the NTR apply in California. On May 18, 2000, U.S. EPA adopted the CTR. The CTR promulgated new toxics criteria for California and incorporated the previously adopted NTR criteria that applied in the State. U.S. EPA amended the CTR on February 13, 2001. These rules contain water quality criteria for priority pollutants. This Order is consistent with NTR and CTR
7. Antidegradation Policy
Federal regulations at 40 CFR section 131.12 require that state water quality standards include an antidegradation policy consistent with federal requirements.
The State Water Board established California’s antidegradation policy in State Water Board Resolution No. 68-16 (“Statement of Policy with Respect to Maintaining High Quality of Waters in California”). Where the federal antidegradation policy is applicable, the State Water Board has interpreted Resolution No. 68-16 to incorporate the federal antidegradation policy.67 The Basin Plan implements both the State and federal antidegradation policies. A permitted discharge must be consistent with the antidegradation provision of 40 CFR section 131.12 and State Water Board Resolution No. 68-16. These policies require that 67 State Water Board Order WQ 86-17 (Fay), pp. 16-19.
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high quality waters be maintained unless degradation is justified based on specific findings. The Water Board finds that the permitted discharges authorized by this Order are consistent with the antidegradation provision of 40 CFR section 131.12 and State Water Board Resolution No. 68-16, as set forth herein.
In the context of this Order, a federal NPDES permit, compliance with the federal antidegradation policy requires consideration of the following. First, the Water Board must ensure that “existing instream uses and the level of water quality necessary to protect the existing uses” are maintained and protected.68 Second, if the baseline quality of a waterbody for a given constituent “exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected” through the requirements of the Order unless the Water Board makes findings that: (1) any lowering of the water quality is “necessary to accommodate important economic or social development in the area in which the waters are located”; (2) “water quality adequate to protect existing uses fully” is assured; and (3) “the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control” are achieved.69 Under this second tier review, the Board may identify the waters for protection through the public process of a permitting action, as it is here. Before allowing any lowering of high quality water, the Board must conduct an analysis of alternatives that evaluates practicable alternatives that would prevent or lessen the degradation associated with the discharges permitted. In the context of 40 CFR § 131.12(a)(2)(ii), practicable means “technologically possible, able to be put into practice, and economically viable.”70
The Order must also comply with any requirements of State Water Board Resolution No. 68-16 beyond those imposed through incorporation of the federal antidegradation policy.71 Resolution No. 68-16 requires findings that any lowering of water quality is “consistent with the maximum benefit to the people of the State” and “will not unreasonably affect present and anticipated beneficial use of such water and will not result in water quality less than that prescribed in the policies” and further that the discharge is subject to “waste discharge requirements which will 68 40 CFR § 131.12(a)(1). This provision has been interpreted to mean that, “[i]f baseline water quality is equal to or less than the quality as defined by the water quality objective, water quality shall be maintained or improved to a level that achieves the objectives.” (State Water Board, Administrative Procedures Update, Antidegradation Policy Implementation for NPDES Permitting, 90-004 (APU 90-004), p. 4.)
69 40 CFR § 131.12(a)(2).
70 40 CFR § 131.3(n).
71 See State Water Board Order WQ 86-17 (Fay), p. 23, fn. 11.
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result in the best practicable treatment or control of the discharge.”72 The baseline quality considered in making the appropriate findings is the best quality of the water since 1968, the year of adoption of Resolution No. 68-16, or a lower level if that lower level was allowed through a permitting or other regulatory action, such as establishing a water quality objective, that was consistent with the federal and state antidegradation policies.73
Here, the baseline water quality is the level authorized under the previous permit consistent with federal and state antidegradation policies. To the extent some water bodies are high quality waters with regard to some constituents, the Water Board allowed limited degradation of such waters in the Previous Permit. This Order does not authorize lowering water quality as compared to the level of discharge authorized in the Previous Permit such that no antidegradation analysis is required.
The Administrative Procedures Update, Antidegradation Policy Implementation for NPDES Permitting, 90-004 (APU 90-004), provides that no antidegradation analysis is required where the regional water board has no expectation that water quality will be reduced by the permitting action. Nevertheless, the Water Board undertakes herein an antidegradation analysis, assuming, without deciding, that the baseline for antidegradation analysis is the best water quality since 1968.74 a. The Board Is Not Required to Make Waterbody by Waterbody and Pollutant by Pollutant Antidegradation Findings:
The Water Board finds that it is not required to conduct a waterbody by waterbody and pollutant by pollutant antidegradation analysis for this Order. The Water Board makes this finding for two reasons. First, APU 90-004, which 72 State Water Board Resolution No. 68-16, Resolve 2. Best practicable treatment or control is not defined in Resolution No. 68-16; however, the State Water Board has evaluated what level of treatment or control is technically achievable using “best efforts” (See State Water Board Orders WQ 81-5 (City of Lompoc), WQ 82-5 (Chino Basin Municipal Water District), WQ 90-6 (Environmental Resources Protection Council).). A Questions and Answers document on Resolution No. 68-16 by the State Water Board states as follows: “To evaluate the best practicable treatment or control method, the discharger should compare the proposed method to existing proven technology; evaluate performance data, e.g. through treatability studies; compare alternative methods of treatment or control; and/or consider the method currently used by the discharger or similarly situated dischargers . . .The costs of the treatment or control should also be considered . . . ” (Questions and Answers, Resolution No. 68-16, State Water Board (Feb. 16, 1995), pp. 5-6.).
73 APU 90-004, p.4. The baseline for application of the federal antidegradation policy is 1975, which is the date used in 40 CFR § 131.3(e) to define existing uses of a waterbody. For state antidegradation requirements, see also Asociacion de Gente Unida por el Agua (AGUA) v. Central Valley Water Board (2012) 210 Cal.App.4th 1255,1270. The baseline for the application of the state antidegradation policy is generally the highest water quality achieved since 1968, the year the policy was adopted. 74 For ease of analyses, 1968 is used herein. As stated above, a permitting action with appropriate antidegradation findings allowing degradation may establish a new baseline, as occurred under the Previous Permit. In addition, the appropriate baseline is determined by the date on which a policy establishing the level of water quality to protect was effective (Resolution No. 68-16, Resolve 1.). The Basin Plan has been updated and amended several times since it was first adopted to include new or revised water quality objectives.
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specifies a waterbody by waterbody and pollutant by pollutant analysis for some permitting actions, does not address permitting for diffuse MS4 discharges.
Second, APU 90-004 itself indicates that a waterbody by waterbody and pollutant by pollutant analysis is only required when conducting a “complete” antidegradation analysis; a complete analysis is not required where any reduction in water quality is temporally limited and would not result in any longterm deleterious effects on water quality.”75 Here, the Order requires compliance with the non-stormwater discharge prohibition, receiving water limitations, TMDL requirements designed to bring MS4 discharges and receiving waters into compliance with water quality objectives, and other requirements for pollutants of concern. The discussion below elaborates on these two reasons. i. APU 90-004 is a State Water Board internal guidance document establishing methods for implementing the federal and state antidegradation policies in NPDES permits. APU 90-004 suggests that an antidegradation analysis requires a pollutant by pollutant and waterbody by waterbody analysis in certain contexts, specifically where the discharge at issue is a discrete discharge from a singular facility. However, APU 90-004 has limited value when considering antidegradation in the context of MS4 discharges from diffuse sources, conveyed through multiple outfalls, with multiple pollutants impacting multiple water bodies within region.76 This interpretation is sensible for this Order, given that reliable data on the baseline water quality is not readily available since 1968 for a region that spans about 4,600 square miles, including hundreds of miles of coastline, hundreds of rivers and streams, tens of thousands of acres of wetlands, lakes, and impoundments, and the 1,600-square-mile San Francisco Bay Estuary. The Water Board estimates that there are thousands or tens of thousands of combinations of waterbodies and pollutants that could potentially require individual consideration in the Region.77 The antidegradation analysis for 75 APU 90-004, p. 2.
76 The State Water Board held so in Order WQ 2021-0052-EXEC. In Natural Resources Defense Council v. State Water Resources Control Board, the superior court did not invalidate this particular conclusion. (Super. Ct. Los Angeles County, No. BS156962, Order, March 29, 2021). The State Water Board’s interpretation of its own guidance is entitled to deference. See also State Water Board Order WQ 2018- 0002, p. 77 (reaching the same conclusion for agricultural discharges). 77 See Basin Plan Chapter 2, Beneficial Uses; Surface Water Body Beneficial Use Tables at:
https://www.waterboards.ca.gov/sanfranciscobay/water_issues/programs/planningtmdls/amendments/Wa terBodies/Documt%20tables%20FINAL%20new%20cover%20BOOKMARKS%204-6-2012.pdf; and Chapter 3, Water Quality Objectives. While the Basin Plan designates beneficial uses for many waterbodies in the Region, there are thousands or tens of thousands of water bodies (e.g., headwaters creeks, isolated seasonal wetlands, seeps, and ponds) for which beneficial uses have not been specifically designated. Thus, the number of potential combinations of waterbodies and pollutants that could require individual consideration could be substantially higher than estimated here. If it could be done at all, a waterbody by waterbody antidegradation analysis would be extremely time-consuming and take years to complete.
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this Order instead relies on a general assessment of the existing water quality data that is reasonably available and makes findings regarding the social and economic benefits and costs of permitting stormwater and nonstormwater MS4 discharges in accordance with the Order terms. ii. The Water Board additionally finds that even if APU 90-004 applies to the issuance of this Order, it requires at most a “simple” antidegradation analysis. APU 90-004 contemplates that a “simple” antidegradation analysis is appropriate under specified circumstances. In particular, as stated above, APU 90-004 states that a simple antidegradation analysis is allowed when a “Regional Board determines the reduction in water quality is temporally limited and will not result in any long-term deleterious effects on water quality” or where a “Regional Board determines the proposed action will produce minor effects which will not result in a significant reduction of water quality.”78 Here, the Order continues the requirements of the Previous Permit or imposes equivalent or more protective requirements such that the water quality established under the prior permit is expected to be maintained and improved. Generally, the Previous Permit instituted controls such as a prohibition on non-stormwater discharges that are a source of pollutants through the MS4s, receiving water limitations, WQBELs based on TMDLs, and monitoring programs to help ensure that water quality will be maintained at the level it is now, or improve it, and this new Order institutes further controls. Any degradation permitted while controls are continuing to be implemented and refined will be temporally limited and will not result in any long-term deleterious effects on water quality.79 Such a finding would not be appropriate if, for example, the Order declined to require long-term compliance with water quality objectives, but that is not the case here.
APU 90-004 does not provide guidance on the scope and content of a simple antidegradation analysis. The Water Board determines that the findings made below meet the requirements of a simple antidegradation analysis and are also consistent with an antidegradation analysis done at a generalized level, as appropriate for this Order. With these findings, based on the information available to it and using its best professional judgment, the Water Board concludes that the discharge will not be adverse to the intent and purpose of the State and federal antidegradation policies. 78 APU 90-004, p. 2. In an unpublished decision, the Second District Court of Appeal affirmed that a simple antidegradation analysis applied to the 2012 Los Angeles County MS4 permit (Natural Resources Defense Council v. State Water Resources Control Board (2018) 2018 WL 6735201, at *6). 79 The Order’s requirements put the Permittees on a path to achieving TMDL wasteload allocations for impairing pollutants and meet water quality objectives, consistent with what the TMDL implementation schedules established as feasible and appropriate. For impairing pollutants like trash for which there is no TMDL, the Order requires 100 percent trash load reduction or no adverse impact to receiving waters from trash within the term of the Order.
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b. The Water Board Makes the Following Antidegradation Findings:
The discharges permitted in the Order are consistent with the antidegradation provisions of 40 CFR section 131.12 and Resolution No. 68-16. The Water Board’s conclusion is based on the following analysis.
i. Water bodies that do not meet water quality objectives (water bodies that are not high quality):
Many of the waters within the area covered by this Order are impaired by multiple pollutants discharged through MS4s and are not high quality waters with respect to these pollutants. They are not attaining water quality objectives necessary to protect beneficial uses. This is evidenced in part by the fact that many of these waterbodies are listed on the State’s CWA section 303(d) List of impaired waters and the Water Board has established numerous TMDLs to address many of the impairments.80 Under both federal and state antidegradation policies, these receiving waters are not considered “high quality” waters for these pollutants. In most cases, there are insufficient data to determine whether the waters addressed by this Order were impaired as early as 1968, but limited available data shows impairment dating back for more than several decades.81 For receiving waters that are not high quality waters, the federal antidegradation policy requires that regulatory actions ensure that existing instream uses and the level of water quality necessary to protect the existing uses is maintained and protected (40 CFR § 131.12(a)(1).). The Order ensures that existing instream (beneficial) uses and the level of water quality necessary to protect the existing uses is maintained and protected through requirements to not cause or contribute to exceedances of water quality 80 It should be noted that impaired waters, or waters that are not high quality, are not confined to those listed only on the 303(d) List. There are several reasons for this, including, but not limited to, the fact that the Water Board’s ability to comprehensively evaluate the water quality of each of the substantial numbers of waterbodies and waterbody segments within the Region’s 4,600 square miles is limited by available staff resources and data sufficient to justify a 303(d) listing. Accordingly, the 303(d) List itself does not reflect all of the waterbodies in the Region that are impaired or fail to meet water quality standards.
81 For example, the 1975 Water Quality Control Plan San Francisco Bay Basin Part II points to poor water quality in the Bay for numerous parameters. (See p. 14-5 to 14-18.) There was, among other problems, widespread toxicity, heavy metals, periodic fish kills, and low dissolved oxygen. (Ibid.) The South Bay had some of the poorest bacteriological quality, with a mean coliform concentration of 20,000 MPN/ml (the then-water quality objective for total coliform for contact recreation was 240 MPN/ml). (Id, p. 14-9; 1975 Water Quality Control Plan San Francisco Bay Basin Abstract, p. 21.) Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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objectives in the receiving water and to restore impaired water bodies.82 This is achieved through the following provisions:
(1) The Order requires compliance with receiving water limitations to meet water quality standards in the receiving water through timely implementation of control measures and other actions specified in Provisions C.2 through C.24. The Order requires implementation of specific structural and non-structural stormwater and non-stormwater controls, consistent with TMDL implementation plans, including an adaptive implementation strategy, that are demonstrated to have a reasonable assurance of achieving compliance with receiving water limitations and that must be implemented in accordance with the deadlines set forth in the Permit.
(2) The Order requires Permittees to comply with WQBELs and/or receiving water limitations consistent with the assumptions and requirements of TMDL WLAs assigned to MS4 discharges established in TMDLs to restore water quality sufficient to protect the beneficial uses of the impaired water bodies.
(3) The Order requires Permittees to effectively prohibit non-stormwater discharges that are a source of pollutants through the MS4 to receiving waters.
(4) The Order includes requirements for monitoring and reporting designed to identify pollutants in receiving waters and the effectiveness of implemented measures to meet water quality objectives.
These provisions are collectively designed to halt any further degradation of impaired water bodies and improve the quality of such waters to a level protective of existing uses over a time schedule that is as short as possible.
The antidegradation policies do not explicitly or implicitly override the authority and discretion the Clean Water Act and the Water Code grant to the Water Board as to how it structures a permit to ensure water quality necessary to protect beneficial uses. The law does not require immediate restoration of impaired water bodies nor does it require an immediate prohibition of discharges that contribute to an exceedance in the waterbody.
Rather, federal regulations at 40 CFR section 122.47 allow NPDES permits, including MS4 permits, to have compliance schedules. Similarly, Water Code section 13263, subdivision (c), authorizes the Water Board to include a time schedule for achieving water quality objectives in waste discharge requirements. Where a TMDL has been established, CWC section 13242 82 These actions also ensure that discharges will not unreasonably affect present and anticipated beneficial uses and will not result in water quality less than water quality objectives, as required by Resolution No. 68-16.
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states that the TMDL implementation plan, as incorporated into the water quality control plan, shall include a time schedule for actions to be taken.
When issuing waste discharge requirements, CWC section 13263 requires regional boards to implement any relevant water quality control plans that have been adopted. Certainly, water quality objectives must be achieved; but the law, as cited above, recognizes and allows for the fact that it can take time to restore or achieve the objectives.83 This period of time before improvement may be as long as multiple years. This is not contrary to the authorities for compliance schedules stated above and is not contrary to the antidegradation policies.84
ii. High quality water bodies:
Some of the waterbodies within the area covered by the Order may be high quality waters with regard to some pollutants. Some of these waterbodies may be currently high quality as compared to currently applicable objectives.
Others of these waterbodies may be currently impaired, but may be classified as high quality waters because they were historically high quality for certain pollutants. MS4 discharges of stormwater and non-stormwater into such water bodies may have resulted in lowering of the quality of the water bodies since 1968 with regard to the pollutants in the discharge.
For high quality water bodies,85 the Water Board finds as follows:
83 Additionally, while MS4 permits must include a technology-based standard of effectively prohibiting non-storm water discharges through the MS4 and reducing pollutants in the discharge to the MEP, requiring strict compliance with water quality standards (e.g., by requiring immediate compliance with receiving water limitations or water quality based effluent limitations) is at the discretion of the permitting agency (33 U.S.C. § 1342(p)(3)(B); Defenders of Wildlife v. Browner (9th Cir. 1999) 191 F.3d 1159, 1166- 67). This Order imposes water quality-based effluent limitations to implement TMDL WLAs and requires compliance with receiving water limitations for all constituents in the MS4 discharges. The fact that the Board also allows reasonable time schedules to achieve compliance with the effluent limitations and receiving water limitations is not contrary to the law for this additional reason. 84 With regard to waterbodies that are not high quality, the antidegradation policies do not require socioeconomic findings justifying any continued degradation of such waterbodies that may occur while the Permittees implement requirements in accordance with a compliance schedule. Even if such findings were required, the Water Board finds that this potential, limited, and temporary further lowering of water quality is justified for the same reasons articulated below related to high quality water bodies. 85 The quality of some currently high quality waters that are close to or at objectives may degrade below water quality objectives temporarily while Permittees implement appropriate controls in accordance with the compliance schedules in the Order and some historically high quality waters may stagnate or continue to degrade below water quality objectives during the same period. The Water Board finds that the potential, limited, and temporary lowering of water quality below the objectives is authorized by 40 CFR § 122.47 and the time schedule provisions of the Water Code set out above in the subsection entitled “Water bodies that do not meet the water quality objectives (water bodies that are not high quality)” , and, to the extent any findings are required under the antidegradation policies, is justified for the same reasons articulated in this subsection entitled “High quality water bodies.” Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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(1) Practicable Alternatives: The Water Board has evaluated a range of practicable alternatives that would prevent or lessen any degradation associated with permitted MS4 discharges to high quality waters. These alternatives are discussed below.
(a) Alternative 1 - Complete prohibition on some or all pollutants in MS4 non-stormwater discharges to high quality waters: This alternative would prohibit MS4 discharges of some or all pollutants in non-stormwater to high quality receiving waters. By eliminating these discharges, pollutants from non-stormwater discharges would not reach high quality receiving waters during dry weather and thus not cause any degradation. In high quality water areas, this alternative could require the Permittees to either divert all nonstormwater to a facility for treatment, or retain all non-stormwater through retention basins, infiltration galleries, and other controls that would prevent non-stormwater from reaching surface waters through storage, infiltration, or reuse. Alternatively, Permittees could install specific pollutant control measures that prevent specific pollutants from being discharged through the MS4. (b) Alternative 2 – Complete prohibition on some or all pollutants in MS4 stormwater discharges to high quality waters: This alternative would prohibit MS4 discharges of some or all pollutants in stormwater to high quality receiving waters. By eliminating these discharges, pollutants from stormwater would not reach high quality receiving waters during wet weather and not cause any
degradation. As wet weather will always occur, this alternative could require the permittees to either divert all stormwater in the MS4 to a facility for treatment, or retain all stormwater through retention basins, infiltration galleries, and other controls that would prevent stormwater from reaching surface waters through storage, infiltration, or reuse. Permittees could also install pollutant control measures that are specific to preventing specific pollutants from being discharged through the MS4.
(c) Alternative 3 – Implement controls consistent with Permit requirements, applicable TMDL Implementation Plans, and adaptive management. This alternative would require Permittees to implement a mix of structural and non-structural controls and associated actions sufficient to achieve receiving water limitations, WQBELs, and other requirements, with flexibility to allow implementation of controls that are relatively more effective with respect to pollutant control, feasibility, or cost, while still achieving Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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required outcomes. Alternative 3 includes, or may include, controls that could be implemented under Alternatives 1 and 2.
(i) Alternative 3, Option A:
Under Alternative 3, where requirements and controls reflect those established in applicable TMDLs, the controls would constitute compliance with receiving water limitations for the waterbody-pollutant combinations addressed by the relevant TMDL, but Option A would not allow for implementation of control measures to constitute compliance with receiving water limitations for waterbody-pollutant combinations not addressed by a TMDL.
(ii) Alternative 3, Option B:
Option B would add one component to Alternative 3. Under Option B, implementation of the controls would additionally constitute compliance with receiving water limitations for a narrow set of waterbody-pollutant combinations not subject to a TMDL where the pollutant of concern is addressed in a comparable TMDL applicable to other water bodies and the controls reflect the controls and timeline of the comparable TMDL.
(d) Alternative 4 – Establish WQBELs for MS4 discharges to high quality waters: This alternative includes the Board establishing WQBELs for MS4 discharges of certain pollutants to high quality waters. These WQBELs would apply to both stormwater and nonstormwater discharges. MRP 2 only includes WQBELs where they are based on either TMDL wasteload allocations applicable to MS4 discharges (i.e., for impaired waters and not high quality waters) or the trash provisions in the Ocean Plan and ISWEBE. This alternative would require the Board to establish WQBELs where no TMDLs have been established.
(2) Economic and Social Development Considerations and Consistency with Maximum Benefit to the People of the State: The Water Board incorporated Alternative 3, Option B, and included aspects of Alternatives 1 and 2, into the Permit. This alternative could allow limited degradation of high quality water bodies by MS4 discharges, but ultimately requires MS4 discharges to meet and not fall below water quality standards.
Such degradation of high quality waters is necessary to accommodate important economic or social development in the area and is consistent Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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with the maximum benefit to the people of the state for the following reasons:
(a) Alternatives 1 and 2, if implemented as full prohibitions, would hamper important social and economic development.
(i) The MS4 discharges of stormwater and non-stormwater in certain circumstances are to the maximum benefit to the people of the state because they may be necessary for flood control and public safety. MS4 discharges also can assist with maintaining, or comprise the flows necessary to maintain, instream flows that support beneficial uses.86 In addition, complete diversion or retention of MS4 discharges that would reach the MS4 and receiving water would require extensive structural controls that are not technologically feasible in many locations, for example due to: lack of available space at those sites; soils with limited infiltration capacity or landslide proclivity; challenging topography; conflicts with utilities and existing infrastructure; lack of available sanitary sewer collection system connections or capacity; typical Bay Area MS4 system designs, which involve relatively short runs of storm drain that discharge into local creeks, streams, or the Bay. That system would require substantial replumbing, often against available grades, to direct flows to controls or the sanitary sewer system.87
86 The Permittees’ MS4 systems are frequently relatively short, discharging into headwaters or low-order creeks and providing all or substantial portions of those creeks’ flows. Diversion of flows to the sanitary sewer could substantially reduce flows, impacting beneficial uses, including associated riparian habitat and vegetation. While use of infiltration basins could recharge local groundwater, beneficially increasing creek baseflows, that benefit is likely to be most-pronounced in the limited areas of Bay Area soils that are more infiltrative, and less so in the majority of the Bay Area that is comprised of less-infiltrative C and D soils. In an example in the Los Angeles Region, the Los Angeles River Flows Project studied the impacts of reduced flows on beneficial uses in the Los Angeles River as a pilot application of the California Environmental Flows Framework. At the beginning of this project, Los Angeles Water Board staff presented on the importance of minimum flows for recreation and wildlife in both concrete and softbottom channels of the river (https://www.waterboards.ca.gov/water_issues/programs/docs/lar/002_r4_la_river_info_item_20171103re v.pdf) Wading shorebirds, for example, rest and feed in the shallow waters of the concrete lined portion of the lower Los Angeles River. The final report for the project, “Process and Decision Support Tools for Evaluating Flow Management Targets to Support Aquatic Life and Recreational Beneficial Uses of the Los Angeles River,” quantified the flow ranges associated with different species, habitats, and recreational uses in the river and evaluated the impacts of various combinations of reductions in wastewater, stormwater, and non-stormwater discharges. In general, if all discharges were eliminated, there would not be enough flow to protect beneficial uses including habitat for local plant and animal species.
87 E.g., SCVURPPP, August 2019. Santa Clara Basin Stormwater Resource Plan; CCAG, January 2021.
San Mateo Countywide Sustainable Streets Master Plan, App. B, pp. 27-28.
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(ii) The vast majority of the Permittees are cities and counties that provide essential and valuable public services. This Fact Sheet considers economics, including Permittees’ compliance costs associated with meeting the requirements of the Order.
Controlling storm water discharges to the point that there is no potential degradation of any potentially high quality waters by requiring complete diversion or retention would be an
enormous opportunity cost that could preclude MS4 permittees from spending substantial funds on other important social and economic needs. This may manifest itself in the reduction of some public services or prevent other public services from being provided in the first place. Permittees have previously provided public comments (on the Administrative Draft of the Permit and during consideration of MRP 2) that spending limited municipal resources on immediately addressing all pollutants in MS4 discharges (all stormwater and nonstormwater discharges) will adversely impact municipal budgets, public health priorities, such as implementing active transportation projects including Safe Routes to Schools or measures to reduce unsheltered homelessness, such as
provision of housing and supportive services, and other social services.88
(iii) As another example, unsheltered homelessness, in a context of limited municipal budgets, the high Bay Area cost of living, driven in part by local land use planning decisions that have produced insufficient affordable housing, and limited
supportive services, results in substantial public expenditures including emergency medical care, and police and justice system engagement.89 Those public expenditures can be
significant, without reducing unsheltered homelessness or preventing discharges of trash and human waste associated with it. Municipal efforts to provide affordable housing, supportive services, and related needs, while expensive, can 88 For example, in comments on the February 2021 Administrative Draft of the Permit, many Permittees identified that limited resources are available to protect water quality, and some Permittees expressed concern that Permit requirements could lead to a reduction in needed road maintenance (Santa Clara Valley Urban Runoff Pollution Protection Program comment letter of April 8, 2021) or reduced implementation of active transportation (multi-modal) projects (City of San Pablo comment letter of April 6, 2021, Town of Danville comment letter of April 7, 2021), and that a focus on addressing the water quality impacts associated with unsheltered homelessness could reduce resources used for housing or provision of supportive services (Contra Costa Countywide Clean Water Program letter of April 8, 2021), and that fiscal impacts associated with the COVID-19 pandemic emphasized the need to prioritize certain actions to protect water quality (e.g., Alameda Countywide Clean Water Program comment letter of April 8, 2021). 89 Flaming et al., 2015. Home Not Found: The Cost of Homelessness in Silicon Valley.
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be relatively much less expensive than jail and emergency services. In addition, by reducing homelessness, they have the potential to reduce associated discharges of trash and human waste. Alternatives 1 and 2, by prohibiting non-stormwater or stormwater discharges, respectively, would preclude this kind of equivalent benefit weighing analysis and the more-efficient achievement of water quality goals.
The Los Angeles Water Board conducted an analysis that
estimates the equivalent public benefit that may be provided through affordable housing and services if full retention and diversion were not required under Region’s MS4 permit. The results of the analysis support the finding that the social and economic benefits of a society where there would be
significantly fewer unhoused residents would be far greater than the additional benefits created by taking water quality from the point where water quality standards are achieved to a level of higher quality that may only be achieved with full retention.90 The same funds that would have to be used to 90 In 2012, Los Angeles County projected that it would cost $120B, or $134.8B in 2019 dollars, for complete diversion or retention of MS4 discharges, whereas the cost of implementing enhanced watershed management programs (EWMPs), which require addressing the 85th percentile, 24-hour storm event or otherwise reducing or treating stormwater discharges to attain water quality standards, was estimated by Board staff to be $21.0B - $21.3B (see Section XIII, Economic Considerations). Instead of using this cost differential of $113.5B - $113.8B to further improve waters that would already have achieved water quality standards, thereby already being able to support designated beneficial uses, this money could be better spent addressing the homeless problem in the region. In 2020, there were an estimated 66,436 unhoused residents in Los Angeles County (Los Angeles Homeless Services Authority. 2021. 2020 Greater Los Angeles Homeless Count – Total Point-In-Time Homeless Population by Geographic Areas. https://www.lahsa.org/documents?id=4692-2020-greater-los-angeles-homeless-counttotal-point-in-time-homeless-population-by-geographic-areas.pdf.). The median cost in Los Angeles County of constructing a permanent housing unit for the homeless is about $531,000 (Galperin, Ron. 2019. The High Cost of Homeless Housing: Review of Proposition HHH. Ron Galperin LA Controller. https://lacontroller.org/audits-and-reports/high-cost-of-homeless-housing-hhh/.). Supportive services to address the homeless housing gap were estimated in 2016 to be $428.8M per year, or $455.3M in 2019 dollars (Los Angeles Homeless Services Authority. 2016. Report on Homeless Housing Gaps in the County of Los Angeles. https://homeless.lacounty.gov/wp-content/uploads/2019/02/Report-on-HomelessHousing-Gaps-in-the-County-of-Los-Angeles-1-2016-1....pdf). Adjusting for the increase in the homeless population since then yields an estimated annual cost in supportive services of $1.2B in 2019 dollars. (Assuming the same supportive services cost per person estimated in 2016, multiplied by the number of homeless residents in LA County in 2020.) The stormwater capture cost differential could build enough units to house every homeless person in Los Angeles County and pay for supportive services for the next 67 years, even with the conservative assumption of one person per housing unit. Housing a homeless person in Los Angeles County results in average cost savings of about $2,731 per person per month in 2019 dollars in terms of reduced need for public services, such as medical and policing expenses (Economic Roundtable. 2008. Where We Sleep: Costs when Homeless and Housed in Los Angeles. https://economicrt.org/wp-content/uploads/2009/11/Where_We_Sleep_2009.pdf). This means that there Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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prevent all MS4 discharges (as opposed to only 85 percent of those discharges) could be invested instead in addressing homelessness, and could support affordable housing and
several decades of supportive services for a significant number of residents at-risk of being unhoused. The Bay Area faces similar challenges and drivers associated with
unsheltered homelessness, as well as similar costs associated with pollution control. Permittees are currently facing the kinds of tradeoffs described above because they are implementing a range of measures to address unsheltered homelessness as described in the Fact Sheet section for Provision C.17, and which provide an indirect benefit to water quality, including provision of permanent supportive housing, job programs, and services. Those are in addition to measures, like trash collection and provision of sanitary waste services, that provide a direct water quality benefit. As a result, the Los Angeles Regional Water Board’s conclusion is expected to be generally applicable to the Bay Area.
(iv) The prohibition on discharges of pollutants in Alternatives 1 and 2 is not practicable without substantial diversion to the sanitary sewer. Stormwater BMPs that do not fully retain, evapotranspire, and/or infiltrate all flows into the groundwater generally will discharge low, but non-zero, amounts of
pollutants downstream.91 Those kinds of controls (e.g., bioretention cells, flow-through planters) are common in the Bay Area because of the preponderance of Bay Area soils with would be annual cost savings of about $2.2B from housing all homeless residents in Los Angeles County, and over 67 years the cost savings would be about $145.1B-$145.8B, greater than the storm water capture cost differential of $113.5B-$113.8B. An analysis of Ventura County finds similar results where each of its 1,743 unhoused residents could be provided permanent housing for at least 55 years with its stormwater capture cost differential, assuming that Ventura County’s cost of full capture would be their estimated MS4 compliance costs multiplied by the same ratios of Los Angeles County’s E/WMP costs to cost of full stormwater capture, yielding cost differentials ranging from $2.5B-$23.4B (https://www.vcstar.com/story/news/2020/12/12/covid-ventura-county-continuum-of-care-2021-homelesscount/3868785001/). This analysis was also based on an average cost per unit of $480,000 for housing the homeless in Ventura County in 2019 and the same supportive services cost per person as in LA County (https://humanimpact.org/wp-content/uploads/2020/10/HIP-Ventura-County-Lets-Invest-Sources2020.pdf). It can be expected that there would be substantial additional benefits for these housed residents and for the local economy from being more fully able to engage in society.
A similar opportunities analysis for unsheltered homeless populations in the South San Francisco Bay Area can be found in Flaming et al., 2015. Home Not Found: The Cost of Homelessness in Silicon Valley. 91 Clary, et al., 2020. International Stormwater BMP Database: Summary Statistics. Water Research Foundation.
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limited infiltration rates. As such, they would not achieve the Alternative 1 or 2 goals.
(v) The significantly higher cost of complete storm water diversion or retention could lead to increased fees for residents with little benefit in return after water quality standards have been met.
To achieve retention, stormwater control sizes would need to increase substantially over the post-construction stormwater treatment control sizing in Provision C.3.d. That sizing is based on work by Urbonas and Guo that determined a point of
diminishing returns for control sizing. That work found that, while larger controls could control larger storms, the size increased out of proportion to the declining marginal benefit gained, in part because of the need to capture the larger storms that are relatively infrequent and comprise a relatively small portion of average annual rainfall. As noted above, storm water diversion would require substantial replumbing of existing systems.
The literature is sparse on the impact of MS4 project costs on user fees, but Kea et al. (2016) found higher rates of user fee establishment in the years directly before and after MS4 permit deadlines,92 indicating that utilities often rely on user fees to meet permit requirements.
It is also possible that higher costs could be passed down to residents through increased housing prices driven by higher impact fees, which cities often charge developers to help fund public services, or higher construction costs. The literature finds that overall impact fees lead to higher home prices.93 Requiring complete storm water diversion or retention from properties could also lead to higher construction costs for 92 Kea, Kandace, Randel Dymond, Warren Campbell. 2016. An Analysis of Patterns and Trends in United States Stormwater Utility. Journal of the American Water Resources Association, 52(6). See, also, Comment Letter on 2012 Los Angeles MS4 Permit from City of Lakewood, Lisa A. Rapp, Director of Public Works, July 23, 2012, Comment Letter from City of La Verne, Daniel W. Keesey, Director of Public Works, July 23, 2012, and Comment Letter from LA Permit Group, July 23, 2012 (discussing the need to, and difficulty of, levying additional special taxes to pay for the permit). 93 Mathur, Shishir, Paul Waddell, and Hilda Blanco. 2004. The Effect of Impact Fees on the Price of New Single-family Housing. Urban Studies, 41(7); Ihlanfeldt, Keith R. and Timothy M. Shaughnessy. 2004. An empirical investigation of the effects of impact fees on housing and land markets. Regional Science and Urban Economics, 34(6); Mathur, Shishir. 2013. Do All Impact Fees Affect Housing Prices the Same? Journal of Planning Education and Research, 33(4).
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housing, which is one of the drivers of higher home prices.94 There is extensive literature showing that higher housing prices are associated with proximity to cleaner waterbodies,95 which provide benefits to society. However, higher housing prices driven by higher impact fees or construction costs that do not contribute toward discernible improvements in water quality would likely provide lower marginal benefits compared to a scenario where residents could avoid additional housing costs by not having to pay higher impact fees or construction costs in a region where housing costs are already high, or a scenario where this cost could be spent on more pressing public services or societal problems.
(vi) Because waterbodies may be high quality for some pollutants and not others it is difficult, if not impossible, to designate specific areas as high quality waters. As a result, Alternatives 1 and 2 are inconsistent with achieving the maximum benefit to the people of the state because they may require broaderthan-necessary implementation of measures to ensure their prohibitions are met. The inconsistency stems from potential impacts to other municipal and public services associated with those increased expenditures.
(b) Aspects of Alternatives 1 and 2 that are practicable are part of Alternative 3 and have been incorporated into this Order. The Order generally implements a prohibition on trash discharges through the installation of full capture systems or controls to achieve full capture equivalency. The Order also largely prohibits the discharge of nonstormwater into and through the MS4 to receiving waters. While there are some limited exceptions where the non-stormwater discharge is expected not to be a source of pollutants, where the discharge is determined to be a source of pollutants it must be prohibited. The Order, through its green infrastructure planning and implementation provision (Provision C.3.j) and its alternative compliance provision (Provision C.3.e), also supports efforts to maximize the capture of stormwater through retention basins, infiltration galleries, and other controls.
94 Emmons, William R. 2019, Sept. 5. Construction Costs, Not Another Housing Bubble, Are Driving House Prices Higher. St. Louis Fed On the Economy Blog. https://www.stlouisfed.org/on-theeconomy/2019/september/construction-costs-housing-bubble-driving-housing-prices-higher 95 See, e.g., Guignet, Dennis, Matthew T. Heberling, Michael Papenfus, Olivia Griot, and Ben Holland. 2020. Property values, water quality, and benefit transfer: A nationwide meta-analysis. Working Papers 20-04, Department of Economics, Appalachian State University. https://ideas.repec.org/p/apl/wpaper/20-
04.html
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(c) Alternative 3, if implemented, could result in limited degradation of high quality water bodies. Any degradation that would occur under the alternative is consistent with the maximum benefit to the people of the state because the combination of structural and nonstructural controls implemented under the alternative will ultimately be effective at maintaining and restoring water quality protective of beneficial uses, and allow a greater benefit to the people of the state than full prohibitions of discharge when considering social and economic parameters that could be affected, such as employment, housing, community services, income, tax revenues, and land value.
The Permit terms require implementation of objective technical solutions that must be designed to meet the Permit’s maximum extent practicable- or water quality standards-based regulatory standards. Such controls necessarily take time to design and construct, but it is to the maximum benefit of the people of the state that such controls be designed and implemented properly so as to be protective of water quality in the long run. These measures that control impacts from stormwater and non-stormwater discharges in the Order are typically effective across multiple pollutants. The alternatives would concurrently address other constituents of concern that may not be causing impairment, but may still be leading to degradation, resulting in improvements in levels of all pollutants, including those for which the receiving water may be high quality.
(d) Alternative 3 avoids the high economic and social costs associated with decreased public services associated with Alternatives 1 and
2. At the same time, Alternative 3 is still structured to encourage retention of stormwater and non-stormwater. As incorporated into the Permit, Alternative 3 provides additional economic and social benefits to the people of the state by incentivizing and incorporating multi-benefit and green infrastructure projects that include benefits beyond water quality protection such as increased local water supplies, beautified streets, plazas, and parking areas, facilities that support habitat and recreation, and climate change resiliency, such as reduced flood flows and reduced temperatures on the urban surface. For example, both the regional stormwater treatment wetland in the City of Fremont’s Pacific Commons project and the stormwater pond in the city park downhill of the City of Dublin’s Dublin Ranch protect clean water while providing an opportunity for recreation and urban connections with nature. Bioretention cells along streets and in parking lots can reduce the urban heat island Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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effect, help calm traffic, and protect cyclists and pedestrians, increasing the benefit of active transportation designs.
Multi-benefit projects are projects that provide multiple benefits, which may include not just runoff treatment, but water capture and use, climate change resilience, encouragement of active transportation and protection of multi-modal users, greenhouse gas reductions, and improvements to urban quality of life– are actively encouraged by the State of California, which administers Proposition 1 funds ($200 million in grant funds) for such multibenefit projects. In the Bay Area, such projects have received funding through Proposition 1 and other state and federal grant programs, as well as Caltrans, pursuant to requirements of its statewide MS4 NPDES permit, and through its cooperative funding program for projects that also provide benefit for discharges from Caltrans rights of way. For example, the Rumrill Boulevard green street retrofit in San Pablo, which will control pollutants of concern, improve pedestrian safety, and provide climate change resilience.96 Table A-3 provides further examples of multi-benefit grant-funded projects completed by the Permittees. While Prop 1 funding has been expended, construction of multi-benefit projects from Permittee Green Infrastructure Plans and Stormwater Resource Plans will likely qualify for these types of grant monies in the future.
Additionally, the construction of these projects also creates goodpaying jobs that do not require advanced degrees, accessible to those in disadvantaged communities.97
Capacity-building projects are projects that build Permittee understanding of and the allow for planning or increase the toolbox of measures available to address pollutants in MS4 discharges. As shown in Table A-3, funded projects have included the
96 U.S. EPA, Rumrill Boulevard: Complete Green Street (web). Accessed August 2, 2021. https://www.epa.gov/sfbay-delta/rumrill-boulevard-complete-green-street City of San Pablo, Rumrill Boulevard Complete Streets Project (web). Accessed August 2, 2021. https://www.sanpabloca.gov/2590/Rumrill-Boulevard-Complete-Streets-Proje 97 Sustainable Business Network, May 2021. Green Stormwater Infrastructure (GSI): A tool for economic recovery and Growth in Pennsylvania, reviewed ten years of GSI implementation in Pennsylvania, and found that GSI was supporting 34,000 jobs in Philadelphia, with more than half paying at least $15 per hour, even without requiring a high school diploma. Building on the findings by Economic Roundtable, Los Angeles Alliance for a New Economy estimated that over 30 years, the Safe, Clean Water Program (Measure W) in the Los Angeles Water Board region will create about 6,530 construction jobs and 1,347 O&M jobs, as well as about 1,559 annual indirect and induced jobs. This would yield about $14B in overall regional economic benefits from $9B in investment. Furthermore, many of these jobs created would be good-paying jobs that do not require an advanced degree, accessible to those in disadvantaged communities (Los Angeles Alliance for a New Economy (LAANE). Liquid Assets. How Stormwater Infrastructure Builds Resilience, Health, Jobs, and Equity. March 2018.).
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development of Permittee stormwater resource plans, efforts to enact building code changes to support low impact development and green stormwater infrastructure implementation, and the Tracking California’s trash project. It is likely that such projects could qualify for funds from similar grant programs in the future.
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Table A-3. Multi-benefit and capacity-building grant-funded projects Grant Program Permittee Project Funded Amount
Prop 84
2011 Stormwater
Implementation
Grants
San Jose Park Avenue: Green
Avenue Pilot Project
$859,128
(same) San Jose Martha Gardens Green
Alleys Pilot Project
$945,180
(same) Union City South Decoto Green
Streets Project
(Implementing LID)
$3,000,000
(same) Alameda County
Public Works
Agency
Alameda County Public
Works Agency Low
Impact Development
Implementation and
Demonstration Project:
Parking Lot Stormwater
Treatment Improvements
$1,600,000
Prop 84
2011 Stormwater
Planning and
Monitoring Grants
Contra Costa
County
Bay Area Green
Infrastructure Master
Planning Project
$597,901
(same) Multiple counties
in Water Board
Regions 2 and 4
Tracking California's
Trash
$870,000
(same) Statewide Removing Barriers to LID
in Local and State
Codes: Technical
Assistance for Municipal
Code Updates and
Evaluation of the
California Building
Standards Code
$996,135
Prop 84
2013 Stormwater
Implementation
Grants
Albany Brighton Avenue Pilot
Green Street Project
$296,000
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Grant Program Permittee Project Funded Amount
(same) San Jose Ocala Avenue Green
Street Project
$1,429,355
(same) Town of San
Anselmo
SADPW Stormwater LID
Demonstration
$546,517
(same) Union City H Street - Green Street
Improvements
$3,000,000
(same) Bay Area Rapid
Transit District
BART Lafayette Station
Parking Lots
Improvement Project
$2,245,259
2014 Drought
Response
Outreach Program
for Schools
StopWaste DROPS - OPS (Oakland
and Piedmont Schools)
$1,491,503
Prop 1
2016 Stormwater
Implementation
Grants
City of San
Mateo
City of San Mateo
Sustainable Streets and
Parking Lot
$630,031
2016 Storm Water
- Proposition 1 -
Implementation
Grants - Round 1
Daly City Vista Grande Drainage
Basin Improvement
Project
$10,000,000
2016 Storm Water
- Proposition 1 -
Implementation
Grants - Round 1
Redwood City Redwood City
Sustainable Streets
$608,099
2016 Storm Water
- Proposition 1 -
Planning Grants
Santa Clara
County
SWRP for the Santa
Clara Basin in Santa
Clara County
$471,708
2016 Storm Water
- Proposition 1 -
Planning Grants
Contra Costa
County Flood
Control & Water
Conservation
District
Contra Costa
Watersheds Storm Water
Resource Plan
$499,420
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Grant Program Permittee Project Funded Amount
2020 Prop 1
Round 2 Storm
Water Grant
Program
San Pablo Sutter Avenue Green
Street Project
$1,560,000
As discussed above, Alternative 3 provides important
socioeconomic benefits such as creation of new jobs, increased local water supplies, beautified streets, plazas, and parking areas, and facilities that support habitat and recreation, while allowing the local governments to maintain important public services. This alternative therefore has the greatest chance of success, within the shortest time frame, and furthers the goal of maintaining and achieving water quality standards.
(e) Alternative 3 could result in limited degradation of high quality waters, in particular currently impaired waters that may nevertheless be considered high quality waters based on a historic baseline. The federal antidegradation policy does not require consideration of economic and social costs associated with degradation; it only requires findings that “allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.” The state antidegradation policy does not define the exact factors that must be considered in determining “maximum benefit to the people of the state.” APU 90-004 states that factors to be considered in a complete antidegradation analysis include economic and social costs of the discharge compared to its benefits, but this Order is subject only to a simple antidegradation analysis.98 The Water Board has nevertheless considered the costs associated with water quality degradation that may occur under Alternative 3, but has done so necessarily at a generalized level. Specifically, in choosing Alternative 3, the Water Board finds as follows:
(i) There are significant environmental, public health, and economic costs associated with exceedances of water quality objectives. The Bay Area economy thrives on a healthy
environment, as does the health of its population. By way of 98 Outside of the complete antidegradation analysis context, APU 90-004 states only that the “findings should indicate . . . [t]he socioeconomic and public benefits that result from lowered water quality” (APU 90-004, p. 1.).
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example, the failure to control stormwater runoff (which would result in exceedances of water quality objectives) would, among other things, negatively impact Bay and ocean water quality, which would negatively impact tourism and the fishing industry. Similarly, the failure to meet water quality objectives in Bay and ocean waters would negatively impact recreation and public health of beachgoers. These costs are discussed in detail in the Economic Analysis section of this Fact Sheet. (ii) The considered costs are associated with exceedances of water quality objectives rather than limited degradation of high quality waters to a level that remains better than objectives.
This is because the objectives are set to protect beneficial uses in the first place.
(iii) Where Alternative 3 may allow a currently high quality waterbody to degrade below water quality objectives, or where it will allow a currently impaired, but historically high quality waterbody to stagnate or worsen in quality, even for multiple years, this allowance is for a finite period of time defined by the compliance schedule specified in the Permit. The Water Board finds that the temporary degradation is justified based on the social and economic benefits discussed in these findings, notwithstanding the potential costs of degradation. In
particular, the Water Board anticipates that the combination of non-structural controls and structural controls that are designed and built over a longer timeframe are more likely to lead to water quality improvements than other measures. (iv) Alternative 3 Option A, as compared to Option B, could potentially avoid some of the costs discussed above if some Permittees are able to correct some exceedances earlier if required to comply immediately with receiving water limitations for all waterbody-pollutant combinations with no applicable TMDL. From a practical perspective, however, the Water
Board finds that immediate compliance, particularly for those waters that may have been high quality historically but are not high quality currently, is unrealistic even if required, given the technical and financial constraints faced by Permittees. There are no known specific sources of bacteria that can be
controlled immediately. There are also no viable means to control bacteria in discharges by treating discharges. Some stormwater treatment or retention systems may reduce levels of bacteria in discharges, but they cannot be implemented Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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immediately and there are constraints that affect locating them where they would intercept discharges from bacteria sources, e.g., land availability and underground utilities. Most importantly, even though they may have viability due other benefits, such as control of other pollutants and water supply augmentation using captured stormwater, none are able to reduce levels of bacteria equivalent to water quality
objectives.99 They also have hydraulic capacity constraints that result in bypassing of untreated runoff during large storm events. Even municipal wastewater treatment systems cannot reduce bacteria to such low levels of bacteria without
disinfection of the treated wastewater through
chlorination/dichlorination, ozone disinfection, or ultra-violet light disinfection, which are not feasible for episodic stormwater discharges. Since it is unrealistic for Permittees to comply immediately, any costs avoided would be non-existent to minimal. Further, the Permit limits application of Option B to the receiving water limitations for bacteria in water bodies (specifically, Stevens Creek, Calabazas Creek and Sunnyvale East Channel/Guadalupe Slough) receiving discharges from Mountain View and Sunnyvale and monitoring demonstrates that these water bodies are not currently high quality for bacteria.100
(f) Regarding Alternative 4, WQBELs are for the most part set to be protective of beneficial uses, which is the floor of the level of protection required under the antidegradation policies and may not be protective of water quality higher than necessary to protect beneficial uses. Therefore, this alternative is not more protective of high quality water bodies than requiring compliance with receiving water limitations, which already require permittees’ MS4 discharges to not cause or contribute to exceedances of water quality objectives. This alternative would impose a significant analytical hurdle on development and adoption of a permit by requiring the Water Board to spend extensive efforts to analyze tens or hundreds of thousands of waterbody-pollutant combinations and then further 99 Clary et al., 2020. International Stormwater BMP Database: 2020 Summary Statistics. Water Research Foundation, pp. 21-33. Accessed at: https://www.waterrf.org/system/files/resource/2020-11/DRPT4968_0.pdf Clary, Pitt, and Steets, August 2014. Pathogens in Urban Stormwater Systems. ASCE. Accessed at:
https://collaborate.ewrinstitute.org/ewri/ourlibrary/viewdocument?DocumentKey=fffe8a76-18b2-4f85- 9b54-b0eac23f12a0
100 See, e.g., Exhibit A of Baykeeper Notices of Violation and Intent to File Suit Under the Clean Water Act to the cities of Mountain View and Sunnyvale, December 4, 2019.
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conduct an infeasible set of reasonable potential analyses to determine whether the permittees’ discharges are impacting high quality waters and for what pollutants. Ultimately, the alternative would divert staff resources from oversight of the implementation of potentially more effective and practical permit requirements, as well diverting staff from the Water Board’s other programs.
(3) Requirement for Highest Statutory and Regulatory Requirements and Best Practicable Treatment and Control: The Order requires the highest statutory and regulatory requirements and requires that the Permittees meet best practicable treatment or control.
(a) The Order prohibits all non-stormwater discharges, with a few enumerated exceptions, through the MS4 to all receiving waters. (b) The Permittees must comply with the “maximum extent practicable” technology-based standard set forth in CWA section
402(p)(3)(B)(iii) and implement control measures under the program elements of a stormwater management program.
(c) As required by CWA section 402(p)(3)(B)(iii) and 40 CFR section 122.44(d)(1)(vii)(B), the Permittees must comply with applicable WQBELs based on TMDL WLAs.
(d) The Order also contains provisions to require treatment of stormwater from the 85th percentile, 24-hour storm event and, via the Permit’s low impact development design philosophy, to implement measures that will reduce and retain runoff. This stormwater design standard is based on robust engineering and technical evaluations to determine state-of-the-art design standards for post-construction site scale BMPs and catchment scale regional BMPs.101
(e) The measures that control impacts from stormwater and nonstormwater discharges in the Order are typically effective across multiple pollutants.102 For example, retention basins, low-impact development controls, and low flow diversions can prevent stormwater and non-stormwater from reaching the receiving water at all—preventing degradation to the receiving water from all types of constituents. The Order’s provisions are designed to achieve 101 See, for example, State Water Board Order WQ 2000-11, the “LA SUSMP Order” and Concept Development: Design Storm for Water Quality in the Los Angeles Region (SCCWRP, Technical Report 520, October 2007).
102 Clary, et al., 2020. International Stormwater BMP Database: Summary Statistics. Water Research Foundation.
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water quality standards for those constituents that are impairing the receiving water, as well as to address other constituents of concern that may not be causing impairment as defined in CWA section 303(d) and State policy. The measures implemented pursuant to these provisions will likely result in improvements in levels of all pollutants, including those for which the receiving water may be high quality.
As a final backstop against degradation, the Order includes an extensive monitoring and reporting program, including:
(i) Stormwater control monitoring to ensure controls
implemented pursuant to Provision C.3 are installed and operating consistent with their design and intended function; (ii) Participation in a San Francisco Estuary monitoring program to answer the management questions identified in Provision C.8.c;
(iii) Specified low impact development (LID) control measure monitoring pursuant to Provision C.8.d, intended to measure the compliance and effectiveness of LID controls.
(iv) Trash monitoring pursuant to Provision C.8.e, intended to verify whether Permittees’ trash control actions have
effectively prevented trash from their jurisdictions from discharging to receiving waters, and to evaluate whether a no adverse effect condition in receiving waters has been achieved where controls have been installed;
(v) Pollutants of concern monitoring pursuant to Provision C.8.f., intended to assess inputs of select POCs to the Bay from local tributaries and urban runoff, provide information to support implementation of TMDLs and other pollutant control
strategies, assess progress toward achieving wasteload
allocations for TMDLs and help resolve uncertainties
associated with loading estimates and impairments associated with these pollutants;
(vi) Pesticides and toxicity monitoring pursuant to Provision C.8.g, on wet and dry weather pesticide discharges and toxicity in receiving waters;
(vii) Monitoring of full trash capture devices installed pursuant to Provision C.10 to ensure that they are installed and operating consistent with their design and intended function;
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(viii) Visual monitoring of measures equivalent to full trash capture implemented pursuant to Provision C.10, to ensure their effectiveness;
(ix) Bacteria monitoring pursuant to applicable subprovisions of Provision C.14, intended to assess progress toward achieving wasteload allocations for TMDLs and inform adaptive
management to achieve them; and
(x) Monitoring and reporting on populations experiencing unsheltered homelessness, and the portion(s) of those
populations receiving services, as a proxy for control of discharges of associated materials, such as trash and human waste, to the MS4.
8. Anti-backsliding Regulations
The CWA contains both statutory anti-backsliding provisions in section 402(o) and regulatory anti-backsliding provisions in 40 CFR section 122.44(l). The CWA’s statutory prohibition against backsliding applies under a narrow set of criteria specified in section 402(o). Section 402(o)(1) prohibits relaxing technology based effluent limitations (TBELs) originally established based on best professional judgment (BPJ) to reflect subsequently promulgated effluent limitation guideline.
This section is inapplicable here since none of the WQBELs in the Order are TBELs based on BPJ. Section 402(o)(1) also prohibits relaxing of WQBELs imposed pursuant to CWA sections 301(b)(1)(C) or 303(d) or (e), unless an exception in CWA section 402(o)(2) applies. Relaxation of WQBELs may also be allowed if such backsliding is consistent with the provisions in CWA section 303(d)(4). CWA section 303(d)(4) allows backsliding in the following circumstances. First, “CWA section 303(d)(4)(A) allows the establishment of a less stringent effluent limitation when the receiving water has been identified as not meeting applicable water quality standards (i.e., a nonattainment water)” if: (a) the existing WQBEL is based on a TMDL or other WLA ; (b) the cumulative effect of such revisions assures attainment of water quality standards; or (c) the designated use is removed.” Second, section 303(d)(4)(B) applies to “waters where the water quality equals or exceeds levels necessary to protect the designated use, or to otherwise meet applicable water quality standards (i.e., an attainment water). Under CWA section 303(d)(4)(B), a WQBEL may be relaxed as long as relaxation complies with the state’s antidegradation policy.” “U.S. EPA has consistently interpreted CWA section 402(o)(1) to allow relaxation of WQBELs and effluent limitations based on state standards if the relaxation is consistent with the provisions of CWA section 303(d)(4) or if … [certain] of the exceptions in CWA section 402(o)(2)… [apply]. The two provisions [303(d)(4) and 402(o)(2)] constitute independent exceptions to the prohibition against relaxation of effluent limitations. If either is met, relaxation is Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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permissible.” This Order complies with anti-backsliding requirements because no WQBEL has been relaxed from the Previous Permit.
9. Impaired Waters on CWA 303(d) List
CWA section 303(d)(1) requires each state to identify specific water bodies within its boundaries where water quality standards are not being met or are not expected to be met after implementation of technology-based effluent limitations on point sources. Water bodies that do not meet water quality standards are considered impaired and are placed on the state’s “303(d) List.” Periodically, U.S. EPA approves the state’s 303(d) List. In June 2021, U.S. EPA approved a revised list of impaired waters prepared pursuant to CWA section 303(d), which requires identification of specific water bodies where it is expected that water quality standards will not be met aft
er implementation of technology-based effluent
limitations on point sources. Where it has not done so already, the Water Board plans to adopt Total Maximum Daily Loads (TMDLs) for pollutants on the 303(d) list.
TMDLs establish wasteload allocations for point sources and load allocations for nonpoint sources, and are established to achieve the water quality standards for the impaired waters.
The Water Board has established TMDLs or Water Quality Improvement Plans for pesticide-related toxicity, mercury, PCBs, pathogens (bacteria), and sediment to remedy water quality impairments in water bodies in and around San Francisco Bay. These TMDLs identify MS4 discharges as a source of pollutants to these water bodies, and, as required, establish wasteload allocations (WLAs) for MS4 discharges to reduce the amount of pollutant discharged to receiving waters. CWA section 402(p)(3)(B)(iii) requires the Water Board to impose permit conditions, including: “management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.” Federal regulations also require that NDPES permits contain WQBELs consistent with the assumptions and requirements of all available WLAs (40 CFR 122.44(d)(1)(vii)(B)). CWC sections 13263 and 13377 also require that permits include limitations necessary to implement water quality control plans. Therefore, this Order includes WQBELs and other provisions to implement the TMDL WLAs assigned to Permittees regulated by this Order.
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10. California Environmental Quality Act
The action to adopt an NPDES Permit is exempt from the provisions of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) pursuant to CWC section 13389, since the adoption or modification of a NPDES permit for an existing source is statutorily exempt and this Order only serves to implement a NPDES permit (County of Los Angeles v. State Water Resources Control Board (2006) 143 Cal.App.4th 985; Pacific Water Conditioning Assn, Inc. v.
City Council of City of Riverside (1977) 73 Cal.App.3d 546, 555-556.).
11. Endangered Species Act Requirements
This Order does not authorize any act that results in the taking of a threatened or endangered species or any act that is now prohibited, or becomes prohibited in the future, under either the California Endangered Species Act (Fish and Game Code §§ 2050 to 2097) or the Federal Endangered Species Act (16 U.S.C.A. §§ 1531 to 1544). This Order requires compliance with discharge prohibitions, receiving water limits, and other requirements to protect the beneficial uses of waters of the state, including protecting rare, threatened, or endangered species. Permittees remain independently responsible for meeting all applicable federal and state Endangered Species Act requirements.
12. Climate Change
The observed and predicted impacts of climate change in Northern California include an increase in temperatures, heightened frequency of extreme weather conditions including extreme precipitation, flooding, and droughts, wildfires, and sea level rise. Sea level rise threatens to drown the tidal marshes that sustain the health of the Bay and Delta, increase the risk of catastrophic floods in low-lying neighborhoods, inundate crucial shoreline infrastructure, including wastewater treatment plants and storm sewers, and increase erosion and beach/land loss along the Pacific Coast. The combined impacts of climate change will affect water quality and many beneficial uses of waters.
The State Water Board adopted on March 7, 2017, a resolution that requires a proactive approach to climate change in all State Water Board actions, including drinking water regulation, water quality protection, and financial assistance (Resolution No. 2017-0012). The resolution lays the foundation for a response to climate change that is integrated into all State Water Board actions, by giving direction to the State Water Board divisions and encouraging coordination with the regional water boards. In addition, Executive Order N-10-19, signed on April 29, 2019, directs the California Natural Resources Agency, the California Environmental Protection Agency, and the California Department of Food and Agriculture to prepare a water resilience portfolio that meets the needs of California’s communities, economy, and environment, and expand and/or reassess the priorities in the California Water Action Plan.
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This Order follows the guiding principles of the State Water Board Resolution and well as Executive Order N-10-19 by contributing to an adaptive climate change and water resilience strategy. Through low impact development and green infrastructure projects, stormwater and non-stormwater runoff can be captured, infiltrated, and used to mitigate periodic drought conditions, reduce flood hazards and erosion rates, and recharge depleted groundwater aquifers and other water supply sources, all while reducing pollutant loads, maintaining beneficial uses in receiving waters and improving community health.
13. Human Right to Water
The Order is consistent with CWC section 106.3, which establishes the policy of the State of California that every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes. The Order implements CWC section 106.3 and promotes the State Water Board’s resolution adopting the human right to water as a core value and directing its implementation in Water Board programs and activities (Resolution No. 2016- 0010) by requiring receiving waters to meet adopted water quality standards that are designed to protect human health and ensure that water is safe for domestic use and by regulating discharges to minimize loading to attain the highest water quality which is reasonable, considering all demands being made on those waters and the total values involved (Wat. Code, §§13000, 13050, subdivisions (i)-(m), 13240, 13241, 13263; State Water Board Resolution No. 68-16.).
C. State Mandates
Article XIII B, section 6(a) of the California Constitution provides that whenever “any state agency mandates a new program or higher level of service on any local government, the state shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service.” No provision of the Order constitutes an unfunded state mandate subject to subvention under Article XIII B, section (6)(a) of the California Constitution.
1. Renewal of the Permit Is Not a New Program or Higher Level of Service.
As a threshold matter, MS4 permitting is not a “program” as that term is used in Article XIII B, section 6. The California Supreme Court has defined a “program” for purposes of Article XIII B, section 6, as: (1) programs that carry out the governmental function of providing services to the public, or (2) laws which, to implement a state policy, impose unique requirements on local governments and do not apply generally to all residents and entities in the state (San Diego Unified School Dist. v. Commission on State Mandates (2004) 33 Cal.4th 859, 874 (reaffirming the test set forth in County of Los Angeles v. State of California (1987) 43 Cal.3d 46, 56); Lucia Mar Unified School District v. Honig (1988) 44 Cal.3d 830, 835.).
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Although a requirement can be a program if it meets either prong (see Dept. of Finance v. Comm’n on State Mandates (2021) 59 Cal.App.5th 546,557; County of Los Angeles v. Dept. of Industrial Relations (1989) 214 Cal.App.3d 1538, 1545), the two prongs are interrelated. As the California Supreme Court put it, “the intent underlying section 6 was to require reimbursement to local agencies for the costs involved in carrying out functions peculiar to government, not for expenses incurred by local agencies as an incidental impact of laws that apply generally to all state residents and entities” (San Diego Unified School Dist. v. Com. on State Mandates (2004) 33 Cal.4th 859, 875 [citing County of Los Angeles v. State of Cal. (1987) 43 Cal.3d 46, 56–57.]). Thus, the applicability of a requirement to entities other than local governments can indicate that the requirement does not carry out a governmental function that provides services to the public (See County of Los Angeles v. Dept. of Industrial Relations (1989) 214 Cal.App.3d 1538, 1546 [Requirement that all elevators, including county elevators, be equipped with fire and earthquake safety features “simply [was] not a governmental function of providing services to the public,” even if county elevators, specifically, were used to obtain governmental services.]; see also San Diego Unified School Dist., supra, 33 Cal.4th at 876 [noting that state-mandated requirements applicable to both privateand public-sector employers to provide employee benefits did not increase or enhance government services, even if such requirements could indirectly improve the public employee applicant pool].).
Here, updated low impact development (LID) and trash provisions do not discharge a governmental service or apply only to local government. The LID requirements, including the reduced impervious surface threshold for implementing LID, do not, in any direct way, mandate the provision of a service to the public. LID will contribute in a general way to the overall reduction of pollution in stormwater, but its primary benefits will be localized, in many cases sited on private property and not shared broadly with the public.
LID provisions do not impose unique requirements on local governments, either.
Other permits impose similar size thresholds on both public and private permittees as a way of reducing runoff or generating other water quality benefits. See Fact Sheet for Provision C.3, infra (listing other permits containing a 5,000 sf impervious surface threshold); see also, e.g., Construction Stormwater General Permit (Order No. 2009-0009-DWQ) (imposing 1-acre threshold); Overwater Structures WDRs (Order No. R2-2018-0009) (imposing general permit requirements for small overwater structure construction projects).
Similarly, the green infrastructure requirements are not unique to local agencies.
The Regional Water Board imposes stormwater treatment requirements on independently-permitted development projects (See, e.g., Order No. R2-2018-0019, pp. 7-8 [requiring stormwater treatment proportionate to amount of impervious surface constructed]; see also Order No. R2-2015-0020, pp. 4-5 [establishing Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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WDRs for voluntary habitat restoration, including low impact/green erosion control measures].). The Regional Water Board also requires stormwater control measures to be installed on roads maintained by private parties in multiple permits (See generally, e.g., Order No. R2-2017-0033 [requiring erosion control measures for roads on vineyards]; Order No. R2-2016-0031 [requiring erosion-control measures for roads at confined animal facilities].).
As with the adjusted LID thresholds, changes in trash provisions do not discharge a governmental function that provides services to the public. As demonstrated by the statewide applicability of the Trash Amendments and the regionwide applicability of the Water Board’s prohibition on the discharge of trash, the elimination of trash discharges is not a uniquely governmental function, but a responsibility that private and public entities, as well as individuals, collectively share.
Indeed, the requirements of the Trash Amendments apply to private and public entities across California. The Amendments require Caltrans, a state agency, private industrial dischargers, private or public operators of recreational facilities, and municipalities alike to comply with the prohibitions on trash discharges by implementing full trash capture systems or their equivalent.103 Cease and Desist Order No. R2-2019-0007, which determined that Caltrans was out of compliance with its NPDES MS4 Permit requirement to timely implement trash control measures in all high trash generating areas in the San Francisco Bay Region, requires Caltrans to “implement structural and non-structural trash controls to meet full trash capture equivalency” in all significant trash-generating areas within its right-of-way by 2030 (Order No. R2-2019-0007, pp 5-6.). This requirement and its deadlines are comparable to the requirements and deadlines with which Permittees must comply. Indeed, as discussed further below, Caltrans and numerous permittees have jointly implemented full-trash capture projects that meet both of their permit requirements.104
Even if MS4 requirements could be considered a “program,” the requirements of the Order do not constitute a new program or a higher level of service as compared to the requirements contained in the previous permits issued by the Water Board to the Permittees. The overarching requirement to impose controls to reduce the pollutants in discharges from MS4s is dictated by the CWA (33 U.S.C. § 1342(p)(3)(B)) and is not new to this permit cycle. The Permittees have been required to have stormwater permits for the past three decades, and to comply with 103 State Water Board, Final Part I Trash Provisions of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California, p. E-2 – E-4; see also Basin Plan, Table 4-1, Prohibitions 7 & 8 (prohibiting the discharge of all “rubbish, refuse…or other solid wastes” and “floating materials” by any discharger, public or private, in the San Francisco Bay Region). 104 Yan, Qi. Summary of Caltrans’ Trash Control Cooperative Implementation Agreement Projects (July 2021).
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prohibitions on the discharge of trash, sediment, untreated human waste, spills, pesticides, and toxic substances, like PCBs and mercury, for a half-century. (Basin Plan, Table 4-1, Prohibitions 6, 7, 8, 9, 11, 13 & 15.) Similarly, Permittees carried out tasks like street sweeping, pollution prevention, public education about litter and illegal dumping, and elimination of illicit connections, long before MS4 permits required it. The MRP’s LID provisions have been in place for four permit cycles. The inclusion of improved measures as the MS4 programs evolve and mature over time is specifically anticipated under the CWA (55 Fed. Reg. 47990, 48052 (Nov. 16, 1990); 61 Fed. Reg. 43761 (Aug. 26, 1996); U.S. EPA “Interim Permitting Approach for Water Quality Based Effluent Limitations in Storm Water Permits,” EPA 833-D96-001 (September 1996)) because the experience gained in implementation of existing permits and ongoing technological developments help direct appropriate adaptation of the programs to better address pollution. Such refinements improve the effectiveness of the ongoing program and do not constitute a new program or higher level of service. And while the new or advanced measures may result in additional costs to the Permittees, resulting new costs is not the test for a higher level of service. “If the Legislature had intended to continue to equate ‘increased level of service’ with ‘additional costs,’ then the provision would be circular: ‘costs mandated by the state’ are defined as ‘increased costs’ due to ‘an increased level of service,’ which, in turn would be defined as ‘additional costs’” (County of Los Angeles v. Com. on State Mandates (2003) 110 Cal.App.4th 1176, 1191, quoting Workers’ Compensation Mandates Decision, supra, 43 Cal.3d. at p. 55.).
2. The Permit Requirements Fall Under Several Exceptions to Mandates Rules Even if some of the requirements imposed on the Permittees with this reissuance could be considered to be new programs or higher levels of service, the following exceptions to a finding of unfunded mandates preclude subvention here:
a. The permit provisions are required by the CWA and its implementing regulations:
Where a law imposes a requirement that is mandated by a federal law or regulation and results in costs mandated by the federal government, no subvention is required unless the statute or executive order mandates costs that exceed the mandate in that federal law or regulation (Gov. Code, § 17556(c).).
The MRP implements federally mandated requirements under the CWA and implementing regulations, so its requirements are therefore not subject to subvention of funds. This includes federal requirements to: (i) effectively prohibit non-storm water discharges through the MS4 to receiving waters; (ii) reduce the discharge of pollutants in stormwater to the maximum extent practicable; (iii) include such other provisions as the permitting authority (here, the Water Board) determines appropriate for the control of such pollutants; (iv) attain applicable TMDL wasteload allocations; and (v) conduct monitoring and reporting.
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i. Non-stormwater discharge prohibition: Federal law requires that an MS4 permit effectively prohibit non-stormwater discharges through the MS4 to receiving waters (33 U.S.C. § 1342(p)(3)(B)(ii).). The Order’s requirements to achieve the effective prohibition of non-stormwater discharges are thus compelled by federal law. For instance, firefighting foam and water discharges are non-stormwater discharges that can have significant impacts on water quality. The requirements to control these discharges, which include the development and implementation of BMPs to prevent firefighting foam and water from entering storm drains, implement the prohibition on non-stormwater discharges.
Other permit requirements implement the federal mandate to reduce pollutants to the maximum extent practicable and the effective prohibition on non-stormwater discharges at different times of year. For instance, trash enters waterways as a non-stormwater discharge during dry weather, when it can reach storm drains by direct discharge or in non-stormwater, and as a pollutant in stormwater discharges during wet weather. On-land trash control efforts, such as pollution prevention, street-sweeping, source control initiatives, and controls applicable to private lands apply in both dry and wet weather, and are necessary both to reduce pollutants in stormwater to the maximum extent practicable and to eliminate non-stormwater discharges of trash to the storm drain system (See Environmental Protection Information Center v. Pacific Lumber Co. (N.D. Cal. 2004) 301 F.Supp.2d 1102, 1111 [where stormwater runoff was mixed with pollutants, it was “not ‘composed entirely of stormwater’].).
Similarly, new controls to manage discharges from unsheltered homeless populations largely implement the non-stormwater discharge prohibition by supplementing Permittees’ existing Direct Discharge Programs, and by targeting illicit discharges of human waste and trash to the storm drain system. To the extent that enhanced bacteria controls require Sunnyvale and Mountain View to intensify efforts to discover leaks and illicit connections, manage municipal operations to prevent dry-weather discharges to the storm drain, and reduce illegal dumping, these provisions also implement the prohibition on non-stormwater discharges. ii. TMDL requirements:
The CWA requires TMDLs to be established for waterbodies that do not meet federal water quality standards (33 U.S.C. § 1313(d).). The CWA also requires that MS4 permits include “such other provisions as the Administrator or the State determines appropriate for the control of [] pollutants” (33 U.S.C. § 1342(p)(3)(B)(iii).). U.S. EPA interprets this provision to mandate “controls to reduce the discharge of pollutants to the Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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maximum extent practicable, and where necessary water quality-based controls.”105
Once U.S. EPA or a state establishes a TMDL, federal law requires that NPDES permits must contain water quality-based effluent limitations (WQBELs) consistent with the assumptions and requirements of any applicable wasteload allocation. (40 C.F.R. § 122.44(d)(1)(vii)(B); see also State Water Board Order No. WQ 2021-0052-EXEC, p. 73.) Indeed, TMDLs are developed for the purpose of specifying requirements for the achievement of water quality standards in impaired waters (33 U.S.C. § 1313(d); 40 C.F.R. § 130.7). The Order’s requirements for attainment of TMDL wasteload allocations are therefore compelled by federal law.
Several generations of the MS4 permits issued in California have prohibited discharges that cause or contribute to exceedances of water quality standards in the receiving water. TMDL provisions, including WQBELs, simply add a process for meeting this requirement, generally based on a compliance schedule.
iii. Monitoring and reporting requirements:
Federal law requires that NPDES permits incorporate monitoring and reporting provisions (33 U.S.C. §§ 1318(a); 1342(a)(2); 40 C.F.R. §§ 122.26(d)(2)(i)(F); 122.41(h), (j)-(l); 122.42(c); 122.44(i); 122.48.). The Order’s monitoring and reporting requirements are thus imposed pursuant to federal law.
iv. Maximum Extent Practicable (MEP) standard:
The CWA mandates that the Order “require controls to reduce the discharge of pollutants to the maximum extent practicable” (33 U.S.C. § 1342(p)(3)(B)(iii).). Department of Finance v. Commission on State Mandates (2016) 1 Cal.5th 749, as modified on denial of rehearing (Nov. 16, 2016) (Department of Finance) analyzed whether the CWA’s MEP standard required four particular provisions concerning trash receptacles and inspections in the 2001 Los Angeles County MS4 permit. In concluding that the provisions were not required by federal law, the Supreme Court stated that, “[h]ad the Regional Board found when imposing the disputed permit conditions, that those conditions were the only means by which the maximum extent practicable standard could be implemented, deference to the board’s expertise in reaching that finding would be appropriate” (Department of Finance, supra, 1 Cal.5th at p. 768.). The Supreme Court 105 Phase I Stormwater Regulations, Final Rule, 55 Fed. Reg. 47990, 47994 (Nov. 16, 1990) (emphasis added); see also Building Industry Ass’n of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 882-887; Phase II Stormwater Regulations, Final Rule, 64 Fed. Reg. 68722, 68737.
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further stated that “[s]uch findings are “case specific, based among other things on factual circumstances” (Id., fn. 15.).
To be entitled to deference, regional water boards must make an express finding that the particular set of permit conditions in a given permit is required to meet that federal standard and must support that finding with evidence. The Water Board expressly finds that the Order specifies requirements necessary for the Permittees to reduce the discharge of pollutants in MS4 discharges to the MEP. The requirements relate to municipal operations, new development and redevelopment, industrial and commercial controls, construction controls, and public information and outreach. The mix of program elements in the Order reflects the necessary pollutant reduction expected by the demanding federal MEP standard, but also represents a balancing of competing interests such as effectiveness, ease of implementation, and practicability. To the extent there may be multiple means of achieving pollutant reductions and that there could be trade-offs between program areas with potentially higher costs and greater pollutant reductions, the permit programs are structured to provide the optimum reduction of pollutants necessary to reduce pollutants to MEP. This finding is the expert conclusion of the principal state agency charged with implementing the NPDES program in California and therefore entitled to deference under Department of Finance.
The Order’s requirements represent structural and non-structural water quality control measures that are effective, technically feasible, and generally accepted as appropriate. They are necessary to meet the MEP standard, an ever evolving, flexible, and advancing concept, which considers technical and economic feasibility. As knowledge and technology regarding controlling stormwater runoff continue to evolve, so too must the actions that are taken to comply with the standard.106
For example, based on advancing knowledge and technology related to limiting stormwater pollutants from impervious surfaces through low impact development strategies, economic considerations, and consideration of the evolving MEP standard, this Order contains new requirements for smaller new developments and redevelopments, including roads, and green infrastructure. They are necessary to meet the federal MEP standard and consistent with other U.S. EPA-issued municipal storm water permits, as explained in the Fact Sheet for Provision C.3. The Supreme Court in 106 See also 55 Fed. Reg. 47990, 48052 (“EPA anticipates that storm water management programs will evolve and mature over time.”); 64 Fed. Reg. 68722, 68754; Dec. 8, 1999 (“EPA envisions application of the MEP standard as an iterative process.”); and Interim Permitting Approach for Water Quality-Based Effluent Limitations in Stormwater Permits (Sept. 1, 1996) (“The interim permitting approach uses BMPs in first-round storm water permits, and expanded or better-tailored BMPs in subsequent permits, where necessary, to provide for the attainment of water quality standards.”).
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Department of Finance suggested that the inclusion of equivalent or substantially similar provisions by the U.S. EPA in other permits may support a finding that the provisions are necessary to achieve MEP (Dept. of Finance, supra, 1 Cal.5th at p. 772.).
Similarly, enhanced bacteria provisions do not require affected Permittees to implement sweeping new programs or state-of-the-art technologies. Instead, they require Permittees whose stormwater discharges contribute to bacteria exceedances to ensure that streets are clean, storm drain catchments are clean, and that litter and pet waste laws are enforced. The fact that all elements of enhanced bacteria controls are already in place demonstrates that these elements are practicable. Intensifying use of these existing controls ensures that they do, in fact, reduce bacteria pollution to the MEP. b. Permittees have authority to fund the costs through service charges, fees, or assessments:
Even if any of the permit provisions could be considered unfunded state mandates, under Government Code section 17556, subdivision (d), a state mandate is not subject to reimbursement if the local agency has the authority to fund the costs through service charges, fees, or assessments (Connell v.
Superior Court (1997) 59 Cal.App.4th 382, 398.). Here, Permittees have the authority to levy service charges, fees, or assessments sufficient to pay for compliance with the Order. Permittees certainly have fee authority under their police powers (See, Cal. Const., art. XI, § 7; Freeman v. Contra Costa County Water Dist. (1971) 18 Cal.App.3d 404, 408 (“It cannot be denied that prevention of water pollution is a legitimate governmental objective, in furtherance of which the police power may be exercised.”); Department of Finance v. Commission on State Mandates (2021) 59 Cal.App.5th 546, 561-62 (holding in part that local governments have the authority sufficient to pay for inspection requirements for commercial and industrial facilities and construction sites to ensure compliance with various environmental regulations in an MS4 permit under their police powers for the prevention of water pollution).
This Fact Sheet demonstrates that numerous activities contribute to the pollutant loading from the MS4. Local agencies can levy service charges, fees, or assessments on these activities, independent of real property ownership (See, e.g., Apartment Ass’n of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 842 (upholding inspection fees associated with renting property).). The authority of a local agency to defray the cost of a program without raising taxes indicates that a program does not entail a cost subject to subvention (Clovis Unified School Dist. v. Chiang (2010) 188 Cal.App.4th 794, 812 [“To the extent a local agency or school district ‘has the authority’ to charge for the mandated program or increased level of service, that charge cannot be recovered as a state-mandated cost.”], quoting Connell v. Superior Court (1997) Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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59 Cal.App.4th 382, 401; County of Fresno v. State of California (1991) 53 Cal.3d 482, 487-488.).
Permittees have argued in the past that their fee or taxation authority is constrained by California Constitution article XIII D, section 6, also known as Proposition 218 (Cal. Const., art. XIII D, § 6, subd. (c); see also Howard Jarvis Taxpayers Association v. City of Salinas (2002) 98 Cal.App.4th 1351, 1358- 1359.). However, Proposition 218 is not an impediment to this Permittees’ fee authority.107 The Constitution has an exception to the voter approval requirements of Proposition 218, “for fees or charges for sewer, water, and refuse collection services” (Cal. Const. Article XIII D, section 6, subd. (c).).
The Legislature recently enacted two important pieces of legislation confirming fee authority without the need for voter approval. In Assembly Bill 2043 (2014), effective January 1, 2015, the Legislature amended the definition of “water” for purposes of articles XIII C and XIII D to mean “water from any source” (Gov.
Code, § 53750, subd. (n), amended by Assembly Bill 2043 (Stats. 2014, ch. 78, § 2.). In doing so, the Legislature stated that its act “is declaratory of existing law.” (Stats. 2014, ch. 78, § 1(c).) With Senate Bill 231 (2017), effective January 1, 2018, the Legislature “reaffirm[ed] and reiterate[d]” that the definition of “sewer” for purposes of article XIII D includes: systems, all real estate, fixtures, and personal property owned, controlled, operated, or managed in connection with or to facilitate sewage collection, treatment, or disposition for sanitary or drainage purposes, including lateral and connecting sewers, interceptors, trunk and outfall lines, sanitary sewage treatment or disposal plants or works, drains, conduits, outlets for surface or storm waters, and any and all other works, property, or structures necessary or convenient for the collection or disposal of sewage, industrial waste, or surface or storm waters (Gov. Code, § 53750, subd. (k); see also Gov. Code § 53751, subds. (h) and (i), added by Senate Bill 231, Stats. 2017, ch. 536, § 2.). These legislative actions confirm that the Permittees have authority to raise fees or charges, without voter approval, for costs related to their MS4s (See Paradise Irrigation Dist. v. Com. on State Mandates (2019) 33 Cal.App.5th 174, 197 [noting that effect of Senate Bill 231 was to exempt stormwater systems from voter approval requirement].).
In addition, Health and Safety Code section 5471, subdivision (a), gives dischargers fee authority for “services and facilities furnished…in connection with its water, sanitation, storm drainage, or sewerage system” (Health & Safety Code, § 5471, subd. (a) (emphasis added).). Similarly, Public Resources Code section 40059, subdivision (a)(1), also confers fee authority on counties, cities, districts, or other local governmental agencies for “[a]spects of solid waste 107 Such authority is also undiminished by Proposition 26, which specifically excludes assessments and property-related fees imposed in accordance with Proposition 218 from the definition of taxes (Cal.
Const., art. XIII C, § 1, subd. (e)(7).).
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handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services.”
The ability of the Permittees to levy fees, assessments, or service charges to pay for compliance with the requirements of the Order cannot be disputed. In addition to the general authority above, some of the Permittees have specific authority to levy funds to pay for permit compliance through many means, including inspection fees, stormwater fees, development impact fees, trash fees, parks fees, and business improvement districts. Thus, the City of Palo Alto adopted an increased Storm Water Management Fee in 2017 to help pay for both routine maintenance of stormwater infrastructure, as well as new initiatives, including stormwater recycling and green infrastructure.108 Voters in the City of Berkeley approved an increased stormwater fee in 2018 with provisions for annual increases of no more than 3 percent.109 Voters in the City of Alameda adopted a stormwater management fee in 2019 for capital improvement, operation, and maintenance of the storm drain system, including clean water controls.110 The City of Moraga included as part of its increased development impact fee schedule a “Storm Drainage Fee” to be “assessed on all types of development (within Town boundaries) that results in the addition of impervious surface, and which thereby increases demand on the Town’s storm drainage facilities.”111 Many permittees impose park admissions fees or parks fees as a component of their development impact fees, which can help ensure improvements to park infrastructure (e.g., installation of pet waste stations) or operational costs (e.g., implementation of integrated pest management to comply with the pesticides TMDL).112 Many, if not all, other municipalities and counties assess trash collection fees, which help cover the costs of implementing the trash provisions113 and homeless encampment BMPs.114 The 108 City of Palo Alto, Storm Water Management Fee (2021); accessed at:
https://www.cityofpaloalto.org/Departments/Public-Works/Engineering-Services/Storm-WaterManagement-Fee 109 City of Berkeley, Approval and Levy of 2018 Clean Stormwater Fee in FY 2020, p. 4 (July 16, 2019). 110 City of Alameda, 2019 Water Quality & Flood Protection: Frequently Asked Questions (alamedaca.gov).
111 Town of Moraga, 2016 Comprehensive Development Impact Fee Update (May 2016), p. 36. 112 See, e.g., Sunnyvale Municipal Code, § 18.10.020, subd. (d). 113 See, e.g., Alameda County Department of Environmental Health Fee Schedule (2021), pp. 6-8 (Several pages of waste managmement-related fees, including fees for inspections), accessed at:
https://deh.acgov.org/deh-assets/docs/General-Fees.pdf
114 City of San Jose, “BeautifySJ Trash and Waste Services Expand” (November 20, 2020) (City Council approved $3 million to pay for trash pickup at homeless encampments); see also Wipf, Carly. “Update:
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City of Oakland has ten business improvement districts, or BIDs, in which businesses help to fund maintenance costs, including the costs of trash pickup and graffiti removal, in their respective districts.115 The Permittees have authority to levy fees for firefighting and prevention.116 In short, Permittees have multiple sources of fee funding to implement permit requirements.
Even if voter approval may be required prior to levying fees, that does not mean that a local agency lacks the authority to levy fees. In Paradise Irrigation Dist. v.
Commission on State Mandates (2019) 33 Cal.App.5th 174, 182, the Court considered whether the majority protest procedure added by Proposition 218 deprived local agencies of authority to impose fees for water service. Article XIII D, section 6(a) requires a local agency to identify parcels subject to a new fee, calculate the fee amount, and provide notice to affected property owners (Cal.
Const., art. XIII D, § 6, subd. (a)(1).). If a majority of the property owners submit written protests against the fee, the fee may not be imposed (Id., subd. (a)(2).).
The Court held that the “majority protest procedures are properly construed as a power-sharing arrangement between the districts and their customers, rather than a deprivation of fee authority” (33 Cal.App.5th at p. 182.). It explained that, when considering how voter powers affect the ability of local governments to impose fees, courts “presume local voters will give appropriate consideration and deference to state mandated requirements . . . ” (Id. at p. 194, citing Bighorn Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205, 220.). “Although this power-sharing arrangement has the potential for conflict, we must presume that both sides will act reasonably and in good faith” (Id., at p. 192.) Further, the fact that, “as a matter of practical reality, the majority protest procedure allows water customers to defeat the District’s authority to levy fees” was not dispositive; “the inquiry into fee authority constitutes an issue of law rather than a question of fact.” (Id. at p. 195, citing Connell, supra, 59 Cal.App.4th at p. 401.). “Fee authority is a matter governed by statute rather than by factual considerations of practicality;” it is not controlled by whether municipalities have tried and failed to levy fees (Id.). If there is statutory authority to levy fees, then there is no right to subvention (Id.).
Grants, both state and federal, can also offset the costs of stormwater implementation. For instance, the State of California administers the Clean Water State Revolving Fund, which the 2021-2022 Intended Use Plan Spend $3 million more to pick up San Jose trash, officials recommend,” San Jose Spotlight (Sept. 14, 2020); see also Bond Graham, Darwin. “Oakland’s new budget doesn’t ‘defund’ the police, but it boosts funding for alternatives,” The Oaklandside (June 25, 2021) (Oakland approving extension of sanitation services to 107 homeless encampments.)
115 See, e.g., maintenance services performed by Downtown Oakland Association (https://downtownoakland.org/clean-safe/).
116 Markovich, Ally. “Berkeley firefighters get $12.7M to tackle growing wildfire threat,” Berkleyside (July 1, 2021) (Measure FF funds to pay for additional staff, ambulances, vegetation management, and training); Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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specifically notes may be used to fund “[s]tormwater and dry weather runoff reduction from Municipal Separate Storm Sewer Systems” in the San Francisco Bay Region.117 Proposition 1 authorized $200 million for “green infrastructure, rainwater and stormwater capture projects, and stormwater treatment facilities,” and stormwater project planning.118 The City of San Pablo is a recipient of a 2021 Proposition 1 grant award. Caltrans also provides significant funding for cooperative implementation of trash control projects. Atherton, Richmond, Vallejo, Hayward, Emeryville, San Jose, Palo Alto, East Palo Alto, San Mateo, Oakland and unincorporated Alameda County have all completed or received funding to implement full trash capture projects jointly with Caltrans.119 The 2021 Clean California program expands Caltrans’ funding for litter abatement and public education and incorporates a nearly $300 million local grant program.120
U.S. EPA also administers grant programs for various activities that this permit requires, such as TMDL implementation, nonpoint source control, and training.121
D. Statewide Industrial and Construction Stormwater General Permits The State Water Board has issued NPDES general permits for the regulation of stormwater discharges associated with industrial activities and construction activities. To effectively implement the New Development (and significant redevelopment) and Construction Controls, Illicit Discharge Controls, and Industrial and Commercial Discharge Controls components in this Permit, the Permittees will conduct investigations and local regulatory activities at industrial and construction sites covered by these general permits. However, under the CWA, the Water Board cannot delegate its own authority to enforce these general permits to the Permittees. Therefore, Water Board staff intends to work cooperatively with the Permittees to ensure that industries and construction sites within the Permittees’ jurisdictions are in compliance with applicable general permit requirements and are not subject to uncoordinated stormwater regulatory activities. 117 State Water Resources Control Board, CWSRF, Prop 1, and Prop 68 Intended Use Plan (June 15, 2021), p. 12.
118 Wat. Code § 79747.
119 Correspondence with Qi Yan (July 23, 2021).
120 Caltrans, Clean California (2021), p. 2; see also, Governor’s Office, “Governor Newsom Kicks Off Clean California Day of Action Highlighting New Initiative to Clean and Revitalize Neighborhoods Across the State” (July 7, 2021).
121 See generally, U.S. EPA Water Infrastructure and Resiliency Finance Center, “Federal and State Funding Programs -Stormwater &Green Infrastructure Projects” (April 2017).
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E. Regulated Parties
Each of the Permittees listed in this Permit owns or operates a MS4, through which it discharges urban runoff into waters of the United States within the San Francisco Bay Region and, with respect to the East Contra Costa County Permittees, the Sacramento and San Joaquin River basins. These MS4s fall into one or more of the following categories: (1) a medium or large MS4 that services a population of greater than 100,000 or 250,000 respectively; or (2) a small MS4 that is “interrelated” to a medium or large MS4; or (3) an MS4 which contributes to a violation of a water quality standard; or (4) an MS4 which is a significant contributor of pollutants to waters of the United States.
F. Permit Coverage
The Permittees each have jurisdiction over and maintenance responsibility for their respective MS4s in the Region. Federal, state or regional entities within the Permittees’ boundaries, not currently named in this Permit, operate storm drain facilities and/or discharge stormwater to the storm drains and watercourses covered by this Permit. The Permittees may lack jurisdiction over these entities.
Consequently, the Water Board recognizes that the Permittees should not be held responsible for such facilities. Most of these facilities are regulated under the State Water Resources Control Board’s general permit for stormwater discharges from small municipal separate storm sewer systems (WQ Order 2013-0001-DWQ, as amended) and are required to control the discharge of pollutants from their systems.
The Water Board will consider additional such facilities for coverage under that NPDES permit or otherwise pursuant to U.S. EPA Phase II stormwater regulations..
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VI. PERMIT PROVISIONS
A. Discharge Prohibitions
Prohibition A.1. Legal Authority – CWA 402(p)(3)(B)(ii) – The CWA requires in section 402(p)(3)(B)(ii) that permits for discharges from municipal storm sewers “shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers.”
Neither the CWA nor federal regulations specifically define “non-stormwater.” The definition of “non-storm water” is derived from the definition of “storm water.” Federal regulations define “storm water” as “storm water runoff, snow melt runoff, and surface runoff and drainage” (40 CFR § 122.26(b)(13).). While “surface runoff and drainage” is not defined in federal law, U.S. EPA’s preamble to the federal regulations demonstrates that the term is related to precipitation events such as rain and/or snowmelt (55 Fed.Reg. 47990, 47995-96 (Nov. 16, 1990)). For example, U.S. EPA states:
“In response to the comments [on the proposed rule] which requested EPA to define the term ‘storm water’ broadly to include a number of classes of discharges which are not in any way related to precipitation events, EPA believes that this rulemaking is not an appropriate forum for addressing the appropriate regulation under the NPDES program of such non-storm water discharges . . . . Consequently, the final definition of storm water has not been expanded from what was proposed.” (Ibid.) The storm water regulations themselves identify numerous categories of discharges including landscape irrigation, diverted stream flows, discharges from drinking water supplier sources, foundation drains, air conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn watering, individual residential car washing, and street wash water as “non-storm water.” While these types of discharges may be regulated under storm water permits, they are not considered storm water discharges (40 CFR §122.26(d)(2)(iv)(B)). This review of the storm water regulations and U.S. EPA’s discussion of the definition of storm water in its preamble to these regulations strongly supports the interpretation that storm water includes only precipitationrelated discharges. Therefore, non-precipitation related discharges are not storm water discharges and are not subject to the MEP standard in CWA section 402(p)(3)(B)(iii). Rather, non-storm water discharges are effectively prohibited pursuant to CWA section 402(p)(3)(B)(ii).
While federal regulations have no definition for “non-storm water discharges,” “illicit discharges” is defined and the terms are often used interchangeably (See, e.g., 40 CFR § 122.26(d)(2)(iv)(B)(1).). “Illicit discharge” is defined by U.S. EPA as “any discharge to a municipal separate storm sewer that is not composed entirely of storm water except discharges pursuant to a NPDES permit . . . and discharges Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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resulting from firefighting activities”122 (40 CFR § 122.26(b)(2).). The federal regulations require that non-stormwater discharges be controlled if they are a significant source of pollutants and the permitting authority is expected to include permit conditions to prohibit or control specified categories of non-stormwater discharges if they are determined to be a source of pollutants to waters of the United States (40 CFR § 122.26(d)(2)(iv)(B)(1).).
Prohibition A.2. Legal Authority – San Francisco Bay Basin Plan, Chapter 4 Implementation, Table 4-1, Prohibition 7, and the trash discharge prohibitions in the ISWEBE and Ocean Plan.
B. Receiving Water Limitations
Receiving Water Limitation B.1. Legal Authority – San Francisco Bay Basin Plan, Chapter 3, Water Quality Objectives.
Receiving Water Limitation B.2. Legal Authority – CWA section 402(p)(3)(B)(iii) requires MS4 permits to include “such other provisions as the Administrator or the State determines appropriate for the control of [] pollutants.” EPA interprets this provision to mandate “controls to reduce the discharge of pollutants to the maximum extent practicable, and where necessary water quality-based controls.”123U.S. EPA has reiterated that MS4 “permit conditions must provide for attainment of applicable water quality standards (including designated uses), allocations of pollutant loads established by a TMDL, and timing requirements for implementation of a TMDL.”124 The State Water Board has also determined that limitations necessary to meet water quality standards are appropriate for the control of pollutants discharged by MS4s and must be included in MS4 permits (State Water Board Orders WQ 91-03, 98-01, 99-05, 2001-15,2021-0052-EXEC), and 2020-0038.). This Order accordingly requires that discharges shall not cause or contribute to violations of water quality standards. The receiving water limitations are necessary and appropriate to control MS4 discharges because storm water discharges can cause or contribute to excursions above water quality standards. The inclusion of receiving water limitations is also consistent with the Ninth Circuit Court of Appeal’s ruling in Defenders of Wildlife v. Browner (191 F.3d 1159, 1166 (1999)) that the permitting authority has discretion regarding the nature and timing of requirements that it includes as MS4 permit conditions to attain water quality standards. 122 While not illicit discharges, discharges from firefighting activities may be regulated where they contribute significantly to pollution in stormwater. 40 C.F.R. 122.26(d)(2)(iv)(B)(1); see also 64 Fed. Reg. 68722, 68756, 68758.
123 Phase I Stormwater Regulations, Final Rule, 55 Fed. Reg. 47990, 47994 (Nov. 16, 1990) (emphasis added); see also Building Industry Ass’n of San Diego County v. State Water Bd. (2004) 124 Cal.App.4th 866, 882-887).
124 See, e.g., Phase II Stormwater Regulations, Final Rule, 64 Fed. Reg. 68722, 68737.
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C. Provisions
C.1. Compliance with Discharge Prohibitions and Receiving Water Limitations
Legal Authority
Broad Legal Authority: CWA sections 402(p)(3)(B)(ii-iii), CWC sections 13377 and 13263, and Federal NPDES regulations 40 CFR 122.26(d)(2)(i) and 40 CFR 122.26(d)(2)(iv).
Specific Legal Authority: The Water Board’s Water Quality Control Plan for the San Francisco Bay Basin (Basin Plan) contains water quality objectives, as well as the following waste discharge prohibition: “The discharge of waste to waters of the state in a manner causing, or threatening to cause a condition of pollution, contamination, or nuisance as defined in [CWC] Section 13050, is prohibited.” CWC section 13050(l) states “(1) ‘Pollution’ means an alteration of the quality of waters of the state by waste to a degree which unreasonably affects either of the following: (A) The water for beneficial uses. (B) Facilities which serve beneficial uses. (2) ‘Pollution’ may include “contamination.”
CWC section 13050(k) states “’Contamination’ means an impairment of the quality of waters of the state by waste to a degree which creates a hazard to public health through poisoning or through the spread of disease. ‘Contamination’ includes any equivalent effect resulting from the disposal of waste, whether or not waters of the state are affected.”
CWC section 13050(m) states “’Nuisance’ means anything which meets all of the following requirements: (1) Is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. (2) Affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. (3) Occurs during, or as a result of, the treatment or disposal of wastes.” CWC Section 13243 provides that a water board, “in a water quality control plan or in waste discharge requirements, may specify certain conditions or areas where the discharge of waste, or certain types of waste, will not be permitted.” CWC Section 13263(a) provides that waste discharge requirements prescribed by the water board implement the Basin Plan.
Federal NPDES regulations 40 CFR 122.26(d)(2)(iv)(A -D) require municipalities to implement controls to reduce pollutants in urban runoff from commercial, residential, industrial, and construction land uses or activities.
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Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(A -D) require municipalities to have legal authority to control various discharges to their MS4.
Federal NPDES regulation 40 CFR 122.44(d)(1) requires NPDES permits to include any requirements necessary to “[a]chieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.” Federal NPDES regulation 40 CFR 122.44(d)(1)(i) requires NPDES permits to include limitations to “control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.”
Federal NPDES regulation 40 CFR 122.44(d)(1)(vii) requires water quality-based effluent limits that are consistent with the assumptions and requirements of any available wasteload allocation.
State Water Board Orders WQ 98-01 and 99-05 are precedential orders that require municipal stormwater permits to not cause or contribute to exceedances of water quality standards in the receiving water. State Water Board Order WQ 99-05 specifically requires that Provision C.1 include language that Permittees shall comply with discharge prohibitions and receiving water limitations through timely implementation of control measures and other actions to reduce pollutants in the discharges and adopted an iterative approach to complying with the limitations where there are exceedances.
Courts have held that compliance with the iterative process does not excuse liability for violations of water quality standards (Building Industry Assn. of San Diego v. State Water Resources Control Board (2004) 124 Cal.App.4th 866; City of Rancho Cucamonga v. Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377; Natural Resources Defense Council v. County of Los Angeles (9th Cir. 2011) 673 F.3d. 880, rev’d on other grounds sub nom; Los Angeles County Flood Control Dist. v. Natural Resources Defense Council (2013) 133 S.Ct. 710, mod. by Natural Resources Defense Council v. County of Los Angeles (9th Cir. 2013) 725 F.3d 1194, cert. den. Los Angeles County Flood Control Dist. v. Natural Resources Defense Council (2014) 134 S.Ct. 2135.).
State Water Board Order WQ 2015-0075, as amended by Order WQ 2021-0052-EXEC, also affirmed that good faith implementation of the iterative process does not excuse liability for violations of water quality standards. It, however, allowed an alternative path to permit compliance that allows MS4 dischargers that are willing to pursue significant undertakings to be deemed in compliance with the receiving water limitations. It specifically directs regional water boards to follow the principles stated below when issuing a municipal stormwater permit, unless a board makes a specific showing that application of a given principle is not appropriate for region-specific or permit-specific reasons.
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The receiving water limitations provisions of Phase I MS4 permits should continue to require compliance with water quality standards in the receiving water and should not deem good faith engagement in the iterative process to constitute such compliance. The Phase I MS4 permits should therefore continue to use the receiving water limitations provisions as directed by State Water Board Order WQ 99-05. (1) The Phase I MS4 permits should include a provision stating that, for water bodypollutant combinations with a TMDL, full compliance with the requirements of the TMDL constitutes compliance with the receiving water limitations for that water body-pollutant combination.
(2) The Phase I MS4 permits should incorporate an ambitious, rigorous, and transparent alternative compliance path that allows permittees appropriate time to come into compliance with receiving water limitations without being in violation of the receiving water limitations during full implementation of the compliance alternative.
(3) The alternative compliance path should encourage watershed-based approaches, address multiple contaminants, and incorporate TMDL requirements.
(4) The alternative compliance path should encourage the use of green infrastructure and the adoption of low impact development principles. (5) The alternative compliance path should encourage multi-benefit regional projects that capture, infiltrate, and reuse stormwater and support a local sustainable water supply.
(6) The alternative compliance path should have rigor and accountability.
Permittees should be required, through a transparent process, to show that they have analyzed the water quality issues in the watershed, prioritized those issues, and proposed appropriate solutions. Permittees should be further required, again through a transparent process, to monitor the results and return to their analysis to verify assumptions and update the solutions. Permittees should be required to conduct this type of adaptive management on their own initiative without waiting for direction from the regional water board.
In State Water Board Order WQ 2020-0038, the State Water Board applied and further explained the alternate compliance path principles in Order WQ 2015-0075 when it reviewed the Los Angeles Regional Water Board’s Los Angeles County MS4 permittees’ watershed management plans and an enhanced watershed management program (LA County MS4 Permit), which were used as alternative paths to compliance.
The State Water Board directed changes to those plans, reiterating State Board Order WQ 2015-0075’s standards for rigor, transparency, and accountability for alternate compliance. The State Water Board referred regional water boards using alternative compliance approaches to ensure consistency with certain additional principles in Order Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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WQ 2020-0038, including “ensuring plans approved clearly explain their development process, identify enforceable milestones, and detail the water body-pollutant combinations to which the plans apply and, to the extent limiting-pollutant or similar approaches are used, that their use is justified such that there is confidence treatment of the limiting pollutant will address the other water body-pollutant combinations to be addressed” (State Water Board Order WQ 2020-0038 [Los Angeles County], p. 164.). At the same time, the State Water Board recognized its order is not intended to curtail the flexibility of the regional water boards to adopt alternative compliance approaches that best fit their particular regions or to restrain the evolution of the regional water boards’ approaches to alternative compliance.
Alternative Path to Compliance with Receiving Water Limitations for Certain Pollutants and Consistency with State Water Board Precedent
This Order, as did the previous order, goes beyond requiring an open-ended iterative approach to compliance with water quality standards by including pollutant-specific provisions, C.9 through C.12. C.14, C.18 (pertaining to the Pescadero-Butano Sediment TMDL), and C.19.c-f, with numerical or narrative WQBELs with milestones and deadlines. These provisions, other than C.10, which implements the statewide Trash Amendments, and C.14.a, which address bacteria exceedances in two water bodies that have not been listed as impaired for bacteria, implement adopted TMDL wasteload allocations or Water Quality Improvement Plans and the associated implementation plans in the Basin Plan and the Water Quality Control Plan for the Sacramento and San Joaquin Basins and specify what Permittees must do during the term of the Order to manage discharges of the specific pollutants that may cause or contribute to violations of water quality standards. Provision C.10 requires controls to meet water quality objectives applicable to trash in the Basin Plan, ISWEBE, and Ocean Plan.
Provision C.1 provides a bridge between the receiving water limitations, which state that discharges shall not cause or contribute to a violation of any applicable water quality standard, and these pollutant-specific provisions that include enforceable water quality-based requirements that Permittees must meet during the term of this Order to manage their contributions to violations or to prevent violations of water quality standards in receiving waters. In accordance with Basin Plan Section 4.8 – Stormwater Discharges and the applicable TMDL implementation requirements specified in the implementation plans adopted into the Basin Plan for and with TMDLs associated with these provisions, the requirements in these pollutant specific provisions are based on an updated assessment and consideration of technically and economically feasible control measures to reduce pollutants in stormwater discharges. As such, each of these provisions establishes a path to compliance with associated receiving water limitations.
These requirements are a direct outgrowth of knowledge and experience with the presence of these pollutants in receiving waters (e.g., San Francisco Bay segments and urban tributaries) based on monitoring and special studies conducted by the San Francisco Bay Regional Monitoring Program, required monitoring from previous permits, Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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special studies conducted by municipalities, and other studies conducted by the San Francisco Estuary Institute.
The alternative path to compliance in the Permit is structured differently than the LA County MS4 Permit’s watershed management program-based alternative compliance path reviewed by the State Water Board in State Water Board Orders WQ 2015-0075, as amended by Order WQ 2021-0052-EXEC, and 2020-0038. Specifically, an alternative compliance path is incorporated into the permit as follows:
The requirements constituting the alternative compliance path are spelled out in sections C.9 through C.12, C.14, C.18 (pertaining to the Pescadero-Butano Sediment TMDL), and C.19.c-f. In the LA County MS4 Permit, permittees were required to propose and develop watershed management programs with structural and non-structural controls that would then be approved by the Los Angeles Water Board as appropriate for alternative compliance. Here, Permittee requirements and controls are specified in the Permit itself rather than proposed by the Permittees in a plan.
With one exception,125 the alternative compliance path is available only for waterbody-pollutant combinations for which there is an established TMDL or Water Quality Improvement Plan (WQIP). The requirements and controls specified in the relevant alternative compliance sections closely track the requirements and controls specified in the TMDL or WQIP implementation plans including, as consistent with the implementation plans, refinements and updates based on the experience of the Board and the Permittees in implementing the TMDLs in prior permit terms. Sections C9 through C12, C.14, C.18, and C.19 of this Fact Sheet include a thorough discussion of the bases for these requirements and controls. Because the alternative compliance path follows established TMDLs or WQIP, milestones and deadlines in those TMDLs that occur within the term of the Permit are incorporated into the Permit. In this sense, the alternative compliance path in the Permit is largely the implementation of TMDLs or WQIPs that were duly adopted by the Board and incorporated into the Basin Plan, as is already required by the law even in the absence of an alternative compliance option. (Water Code §13263(a) (waste discharge requirements must implement the Basin Plan); 40 CFR 122.44(d)(1)(vii) (NPDES permits must include water quality-based effluent limits that are consistent with the assumptions and requirements of any available wasteload allocation).) The Permit allows alternative compliance where there is no established TMDL or WQIP for one set of waterbody-pollutant combinations. This alternative compliance path is specified in Section C.14.a. The section applies to “the cities of Mountain View and Sunnyvale for discharges that are causing or contributing to exceedances 125 Although there is no TMDL for trash, Provision C.10 implements the statewide Trash Amendments, which establish a framework for coming into compliance with the statewide prohibition on trash discharges.
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of applicable bacteria water quality objectives in Stevens Creek (both cities), Calabazas Creek (Sunnyvale), and Sunnyvale East Channel/Guadalupe Slough (Sunnyvale).” The requirements, controls, and timelines in Section C.14.a. mirror the requirements, controls, and timelines in bacteria TMDLs established for other waterbody segments in the region. (See Sections C.14.b.-14.d.) Accordingly, the Board relied on the analysis and planning that supported the development of those TMDLs as support for provisions in Section C.14.a.
The Permit incorporates requirements and incentives for the use of green infrastructure, the adoption of low impact development principles, and multi-benefit regional projects that capture, infiltrate, and reuse stormwater and support a local sustainable water supply. Some of the alternative compliance path provisions specifically identify such projects as means of compliance with the provisions, including Provision C.11 for mercury discharges to San Francisco Bay and Provision C.12 for PCBs discharges to San Francisco Bay. Generally, however, the requirements are layered on top of the alternative compliance provisions, rather than built into provisions C.9 through C.12, C.14, C.18 (pertaining to the PescaderoButano Sediment TMDL), and C.19.c-f. Specifically, all Permittees, and not only Permittees with discharges subject to the alternative compliance path provisions, must comply with section C.3.
As stated above, State Water Board Orders WQ 2015-0075, as amended by Order WQ 2021-0052-EXEC, and 2020-0038 acknowledge that there is more than one acceptable approach to providing for an alternative compliance path in an MS4 Permit. (See, e.g.
State Water Board Order WQ 2021-0052-EXEC, p. 64 (“[W]e acknowledge that regional differences may dictate a variation on the [watershed management program] approach.”); State Water Board Order WQ 2020-0038, p. 164 (“This order is not intended to curtail the flexibility of the regional water boards. . . to adopt and develop alternative compliance plans that best fit their particular regions, and does not require modification of programs adopted by other regional water boards.”) While structured differently than the alternative compliance path in the LA County MS4 Permit, the alternative compliance path in provisions C.9 through C.12, C.14, C.18, and C.19.c-f, is nevertheless consistent with the direction in State Water Board Orders WQ 2015-0075, as amended, and 2020-0038 as described below and in the sections of the Fact Sheet discussing the bases for the requirements and controls in those sections.
The requirements of provisions C.9 through C.12, C.14, C.18, and C.19.c-f are ambitious and rigorous because they require Permittees to fully commit to and implement challenging, but achievable, tasks to ultimately meet water quality objectives, including objective interim narrative or numeric effluent limitations. Accordingly, this Order explicitly applies principles 1, 2, and 3 (above) of State Water Board Order WQ 2015-0075, as amended, and provides an alternative path to compliance with Discharge Prohibitions and Receiving Water Limitations for the following pollutant – water body combinations: pesticides and pesticide-caused toxicity in all receiving waters (Provision Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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C.9); trash in all receiving waters (Provision C.10); mercury in all San Francisco Bay segments and receiving waters in the Guadalupe River watershed (Provision C.11); polychlorinated biphenyls (PCBs) in all San Francisco Bay segments (Provision C.12); fecal indicator bacteria in various impaired water bodies (Provision C.14); sediment in Pescadero and Butano creeks (Provision C.18); and diazinon and chlorpyrifos in the Sacramento/San Joaquin River Delta (Provision C.19.c), methylmercury in the Sacramento/San Joaquin River Delta (Provision C.19.d-e), and pyrethroid pesticides in the Sacramento and San Joaquin river systems (Provision C.19.f).
This rigorous compliance alternative also applies Order WQ 2015-0075, as amended, principle 4. It implements all applicable TMDL requirements and calls for or allows for implementation of trash, mercury, and PCBs controls in watershed and drainage areas where they are most needed and most likely to be effective and promotes and allows use of controls with multiple pollutant benefits. In particular, Provision C.10 allows compliance through use of low impact development and green infrastructure controls that may be implemented for other pollutants, e.g., mercury and PCBs, upon a demonstration that such controls provide full trash capture system equivalency, and alternatively Permittees may use full trash capture systems as a means of meeting provisions C.11 (mercury) and C.12 (PCBs) requirements. Also, by design, provisions C.11 (mercury) and C.12 (PCBs) include consistent categorical control measure requirements, e.g., Source Property Identification and Abatement, Control Measure Implementation in Old Industrial Areas, and Plan and Implement Green Stormwater Infrastructure, based on recognition of the multipollutant benefits of these actions.
However, the watershed-based approach addressing multiple pollutants is less or not appropriate for the pesticides and pesticide-caused toxicity requirements. Consistent with the TMDL wasteload allocation and implementation plan, these requirements are pollution prevention management practices specific to urban use pesticides and apply to all watersheds and drainage areas since urban use pesticides are used everywhere.
Similarly, Provision C.14 fecal indicator bacteria requirements for discharges to receiving waters that are or may be impaired by bacteria implement or, where there is no TMDL, are consistent with TMDL requirements, and call for fecal indicator bacteriaspecific pollution prevention controls consistent with current knowledge of sources and activities in the watersheds of these receiving waters. Provision C.14 does recognize there will be bacteria reduction benefits associated with control of some trash sources.
Although there may be some pesticides and bacteria reduction benefits of low impact development and green infrastructure controls that may be implemented for other pollutants, those benefits are likely minimal.
Order Provision C.3 calls for adoption and implementation of low impact development consistent with Order WQ 2015-0075, as amended, principles 5 and 6. The mercury and PCBs provisions (C.11 and C.12) explicitly recognize and call for use of green infrastructure to meet pollutant load reduction requirements. The trash provisions in C.10 allow use of low impact development green infrastructure as full trash capture Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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systems, if appropriately designed, operated, and maintained. Although not directly required in the pesticides and fecal indicator bacteria provisions, low impact development principles and development and implementation of green infrastructure plans, including consideration of multi-benefit regional projects, could also have pesticides and bacteria load reduction benefits. However, there are no current available and viable treatment controls, including green infrastructure, that can reduce concentrations of pesticides or fecal bacteria to low levels consistent with applicable water quality objectives.
Consistent with Order WQ 2015-0075, as amended, principle 7, each of the pollutantspecific provisions also contain concrete milestones and deadlines and reporting requirements that provide rigor and accountability. Unlike the MS4 permit evaluated in Order WQ 2015-0075, as amended, where water quality objectives were to be achieved through watershed management plans or programs to be submitted, this Order explicitly sets forth the requirements for achieving over time receiving water limitations instead of relying on plans. As such, it is abundantly transparent as to what is required. The pollutant-specific requirements track the controls and the timelines for attaining the wasteload allocations established in adopted TMDLs; therefore, the analyses supporting the requirements for achieving receiving water limitations over time were provided in the first instance, in a transparent, public process, through the adoption of the TMDLs.
Additionally, this Fact Sheet summarizes data and information collected under the prior permit’s implementation of the TMDL and additional requirements and provides the analyses supporting additions and adjustments made to the pollutant-specific requirements and controls in this Permit. Moreover, as implementation of the Permit’s alternative compliance provisions proceeds, all reports, plans, and other required submittals will be made available to all interested parties and input and feedback from interested parties will be considered in the evaluation of all submittals. State Water Board Order WQ 2015-0075, as amended, requires that an MS4 permit show “through a transparent process” that it has “analyzed the water quality issues in the watershed, prioritized those issues, and proposed appropriate solutions,” but it does not require a specific type or form of analytical exercise to meet this principle. (See, e.g., State Water Board Order WQ 2020-0038, p. 81, acknowledging that evaluations other than modeling are acceptable.) The analyses supporting the TMDLs implemented in the Permit, as well as the additional analyses provided or referred to in this Fact Sheet, meet the direction provided by the State Water Board in principle 7.
The Order also includes monitoring requirements (Provision C.8 and Provision C.14) to assess water body and watershed conditions and effectiveness of control actions towards attainment of water quality standards and to inform selection and implementation of new control actions or adaptive improvements of control actions.
Consistent with the TMDLs, more time than the term of the Order will be necessary to attain water quality standards for mercury, PCBs, and fecal bacteria. In these cases, the associated Order provision includes an additional requirement for the Permittees to Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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submit updated plans of additional or improved control actions and schedule of implementation to attain water quality standards and TMDL wasteload allocations for the Water Board’s consideration of numerical or narrative WQBELs in the subsequent order. It also requires updates to corresponding reasonable assurance analyses demonstrating sufficient control measures will be implemented to attain the TMDLs and water quality standards.
With respect to compliance with the trash discharge prohibition, the Trash Amendments provide that Permittees “with NPDES permits that contain specific requirements for the control of Trash that are consistent with these Trash Provisions shall be determined to be in compliance with this prohibition if the dischargers are in full compliance with such requirements.” The requirements of this Order are consistent with the Trash Provisions, which include the water quality objective for trash, the discharge prohibition, and the implementation requirements of the Trash Amendments (see Fact Sheet for Provision 10).
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C.2. Municipal Operations
Legal Authority
The following legal authority applies to Provision C.2:
Broad Legal Authority: CWA sections 402(p)(3)(B)(ii-iii) and 402(a), California Water Code (CWC) sections 13377 and 13263, and Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(B, C, E, and F) and 40 CFR 122.26(d)(2)(iv).
Specific Legal Authority: Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(1) requires “[a] description of maintenance activities and a maintenance schedule for structural controls to reduce pollutants (including floatables) in discharges from municipal separate storm sewers.”
Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(3) requires “[a] description for operating and maintaining public streets, roads and highways and procedures for reducing the impact on receiving waters of discharges from municipal storm sewer systems, including pollutants discharged as a result of deicing activities.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(4) requires “[a] description of procedures to assure that flood management projects assess the impacts on the water quality of receiving waterbodies and that existing structural flood control devices have been evaluated to determine if retrofitting the device to provide additional pollutant removal from storm water is feasible.”
Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(5) requires “[a] description of a program to monitor pollutants in runoff from operating or closed municipal landfills or other treatment, storage or disposal facilities for municipal waste, which shall identify priorities and procedures for inspections and establishing and implementing control measures for such discharges.”
Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(6) requires “[a] description of a program to reduce to the maximum extent practicable, pollutants in discharges from municipal separate storm sewers associated with the application of pesticides, herbicides, and fertilizer which will include, as appropriate, controls such as educational activities, permits, certifications, and other measures for commercial applicators and distributors, and controls for application in public right-of-ways [sic] and at municipal facilities.”
Federal NPDES regulation 40 CFR 122.44(d)(1)(i) requires NPDES permits to include limitations to “control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.”
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Fact Sheet Findings in Support of Provision C.2
C.2-1 Municipal maintenance activities are potential sources of pollutants unless appropriate inspection, pollutant source control, and cleanup measures are implemented during routine maintenance works to minimize pollutant discharges to storm drainage facilities.
Discharges from paved surfaces, such as roads, parking lots, parks, sidewalks, landscaping, and corporation yards, can contain many pollutants, such as sediment, copper, petroleum products, trash, and pathogens. Provision C.2 requires the Permittees to designate minimum BMPs for all municipal facilities and activities as part of their ongoing pollution prevention. This Provision sets the minimum implementation level for such preventive measures, but does not bar Permittees from implementing additional pollution prevention actions.
Municipal maintenance personnel play a vital role in minimizing stormwater pollution because they work directly on municipal storm drains and at other municipal facilities. Through work such as inspecting and cleaning storm drain drop inlets and pipes and conducting municipal construction and maintenance activities upstream of the storm drain, municipal maintenance personnel are directly responsible for preventing and removing pollutants from the storm drain. Maintenance personnel also play an important role in identifying, reporting, and cleaning up illicit discharges.
C.2-2 Road construction and other municipal activities can disturb soil and drainage patterns in undeveloped areas, causing excess runoff and thereby erosion and the release of sediment. In particular, poorly designed roads can act as manmade drainages that carry runoff and sediment into natural streams, degrading water quality.
Provision C.2 also requires the Permittees to implement effective BMPs for the following rural works maintenance and support activities: (a) Road design, construction, maintenance, and repairs in rural areas that prevent and control road-related erosion and sediment transport; (b) Identifying and prioritizing rural roads maintenance on the basis of soil erosion potential, slope steepness, and receiving water habitat resources; (c) Developing and implementing road and road crossing (e.g., bridge and culvert) construction designs that do not impact creek functions, do not create a migratory fish passage barrier, where migratory fish are present, and do not lead to stream bank instability; (d) Developing and implementing an inspection program to maintain road structural integrity and prevent impacts to water quality; and (e) Adequately maintaining rural roads adjacent to streams and riparian habitat to reduce erosion, such as by replacing damaging shotgun culverts, re-grading roads to slope outward where consistent with road engineering safety standards, and installing water bars.
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Specific Provision C.2 Requirements
Provision C.2.a-e. (Operation and Maintenance of Municipal Separate Storm Sewer Systems (MS4) facilities) requires that the Permittees implement appropriate pollution control measures during maintenance activities and to inspect and, if necessary, clean municipal facilities, such as conveyance systems, pump stations, and corporation yards, before the rainy season. The requirements will assist the Permittees to prioritize tasks, implement appropriate BMPs, evaluate the effectiveness of the implemented BMPs, and compile and submit annual reports.
Provision C.2.d. (Stormwater Pump Stations). Stormwater pump stations can be sources of pollutants including low dissolved oxygen, oxygen-demanding substances, and trash to receiving waters. As described below, the Permit requires Permittees to continue to inspect their pump stations and, as needed, take corrective actions to prevent adverse water quality impacts.
Water Board staff investigated the occurrence of low salinity and dissolved oxygen (DO) conditions in Old Alameda Creek (Alameda County) and Alviso Slough (Santa Clara County) in September and October of 2005. Water Board staff became aware of this problem in their review of receiving water and discharge sampling conducted by the U.S. Geological Survey as part of its routine monitoring on discharges associated with the former salt ponds managed by the U.S. Fish and Wildlife Service in Santa Clara County and the California Department of Fish and Wildlife in Alameda County.
Discharge of black-colored water from the Alvarado pump station to Old Alameda Creek was observed at the time of the data collection on September 7, 2005, confirming dry weather urban runoff as the source of the documented violations of the 5 mg/L (DO) water quality objective. Such conditions were measured again on September 21, 2005.
On October 17, 2005, waters in Alviso Slough were much less saline than the salt ponds and had the lowest documented dissolved oxygen of the summer, suggesting a dry weather urban runoff source. The (DO) sag was detected from surface to bottom at
2.3 mg/L at a salinity of less than 1 part per thousand (ppt), mid-day, when oxygen levels should be high at the surface. The sloughs have a typical depth of 6 feet.
Inspections of stormwater pump stations, which transport water from the storm drain system to receiving waters and operate during both dry and wet weather, indicate that pump stations may represent an overlooked source of controllable pollution, in particular low dissolved oxygen (DO) and trash, to the San Francisco Bay Estuary and its tidal sloughs. The discharges of dry weather urban runoff from these pump stations were historically not managed to protect water quality and surveillance monitoring detected measurable negative water quality consequences of this current state of pump station management.
Previous iterations of the MRP required Permittees to inventory and inspect pump stations during the dry season to identify and correct low-DO discharges. Permittees Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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now have inventories of pump stations, and this permit continues the requirements to inspect pump stations and implement corrective action if receiving water is found to have low DO. Pump stations within the storm drain system and pump stations that discharge to dry creeks are excluded because any low DO in discharges will not impact water quality.
This permit also continues to require Permittees to inspect all pump stations for trash and evidence of illicit discharges, and maintain or replace oil-absorbent booms, in order to comply with the prohibition on non-stormwater discharges. 40 CFR 122.26(d)(2)(I)(f) requires Permittees to carry out all inspection, surveillance, and monitoring procedures necessary to determine compliance and noncompliance with permit conditions, including the prohibition on illicit discharges to the MS4. Pump stations cannot contribute discharges with dissolved oxygen (DO) level below 3 mg/L.
Previous pump station reporting shows that implementing corrective actions (i.e., BMPs) prior to the pumps, combined activating the pumps to discharge collected water, as opposed to simply allowing it to overflow, aerates the water to a DO level of at least 3 mg/L. Thus, this Permit removes the specific DO monitoring requirements and allows the Permittees greater flexibility to ensure that all water discharged from pumps stations is at least 3 mg/l. The reporting requirement has also been removed from this Permit, but Permittees must maintain any sampling records and make them available upon request.
Provision C.2.f. (Corporation Yard BMP Implementation). This provision continues the requirement for Permittees to implement BMPs in site-specific Stormwater Pollution Prevention Plans (SWPPPs) to minimize pollutant discharges in stormwater and nonstormwater discharges in municipal corporation yards. SWPPPs, which Permittees have been required to have in place since 2010, should have specific BMPs for different functions of the corporation yard and provide guidance for regular inspections to ensure that appropriate BMPs are implemented. After Water Board staff and U.S. EPA staff inspections indicated that despite the use of SWPPPs, corporation yards had actual and/or potential discharges, the Water Board required Permittees to customize their SWPPPs and conduct routine inspections in different areas of the corporation yard and at least one inspection prior to the start of the rainy season. However, subsequent annual reports indicated that Permittees’ inspections were not consistently scheduled at times when they would detect potential discharges or runoff issues prior to the start of the rainy season. In addition, Permittees’ reporting on corrective actions was too spotty for the Water Board to make compliance determinations. Therefore, this Permit clearly identifies the timeframe for the annual inspections to occur and requires corrective actions to be implemented before the next rain event, but no later than 10 business days after the potential and/or actual discharges are discovered. This is consistent with the timeframe for implementation of corrective actions in provisions C.4. and C.5.
Provision C.2.g. Storm Drain Inlet Marking. This requirement has been moved from Provision C.7, Public Information and Outreach, of the Previous Permit (Order No. R2- Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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2015-0049, as amended). Storm drain inlet marking is a long-established program of outreach to the public on the nature of the storm drain system, providing the information that the storm drain system connects directly to creeks and the Bay and does not receive treatment. Past public awareness surveys have demonstrated that this BMP has achieved significant impact in raising awareness in the general public and meets the MEP standard as a required action. Therefore, the Permit continues to require all municipally maintained inlets to be legibly labeled with a “no dumping” message.
Volunteer storm drain marking events have additional public involvement value and may further raise awareness and compliance.
Provision C.2.h. Staff Training. This provision continues to require Permittees to conduct annual trainings for municipal staff. Trainings are necessary to keep staff current on implementation and maintenance of BMPs for municipal operations to control stormwater discharges. Since municipal employees are largely responsible for implementing Provision C.2, staff training is an essential component of controlling discharges from municipal operations.
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C.3. New Development and Redevelopment
Legal Authority
Broad Legal Authority: CWA Sections 402(p)(3)(B)(ii-iii), CWA Section 402(a), CWC Sections 13377 and 13263, and Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(B, C, E, and F), 40 CFR 131.12, and 40 CFR 122.26(d)(2)(iv).
Specific Legal Authority: Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(1) requires “a] description of maintenance activities and a maintenance schedule for structural controls to reduce pollutants (including floatables) in discharges from municipal separate storm sewers.”
Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(2) requires “[a] description of planning procedures including a comprehensive master plan to develop, implement and enforce controls to reduce the discharge of pollutants from municipal separate storm sewers which receive discharges from areas of new development and significant redevelopment. Such plan shall address controls to reduce pollutants in discharges from municipal separate storm sewers after construction is completed.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(3) requires “[a] description for operating and maintaining public streets, roads and highways and procedures for reducing the impact on receiving waters of discharges from municipal storm sewer systems, including pollutants discharged as a result of deicing activities.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(4) requires “[a] description of procedures to assure that flood management projects assess the impacts on the water quality of receiving water bodies and that existing structural flood control devices have been evaluated to determine if retrofitting the device to provide additional pollutant removal from storm water is feasible.”
Fact Sheet Findings in Support of Provision C.3
C.3-1 Urban development begins at the land use planning phase; therefore, this phase provides the greatest cost-effective opportunities to protect water quality in new development and redevelopment. When a Permittee incorporates policies and principles designed to safeguard water resources into its General Plan and development project approval processes, it has taken a critical step toward the preservation of local water resources for current and future generations.
C.3-2 Provision C.3. is based on the premise that Permittees are responsible for considering potential stormwater impacts when making planning and land use decisions for new development and redevelopment, including road improvement projects, and determining how to operate and maintain streets, roads, and highways, including reducing pollutants discharged from them. The goal of Provision C.3. is for Permittees to use their planning authority to reduce Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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pollutant discharges and runoff flow into the storm drain system primarily through the implementation of low impact development (LID) techniques.
C.3-3 To accomplish this goal, Permittees must require new development and redevelopment projects to implement appropriate source control, site design, and stormwater treatment measures to address both soluble and insoluble stormwater runoff pollutant discharges and prevent increases in runoff flow from these projects. Permittees are also required to implement their Green Infrastructure Plans for the inclusion of low impact development drainage design into storm drain infrastructure on public and private lands, including streets, roads, storm drains, parking lots, building roofs and other storm drain infrastructure elements. Provision C.3. is not intended to restrict or control local land use decision-making authority.
C.3-4 Certain control measures implemented or required by Permittees for urban runoff management might create a habitat for vectors (e.g., mosquitoes and rodents) if not properly designed or maintained. Close collaboration and cooperative efforts among Permittees, local vector control agencies, Water Board staff, and the State Department of Public Health are necessary to minimize potential nuisances and public health impacts resulting from vector breeding.
C.3-5 The Water Board recognized in its Policy on the Use of Constructed Wetlands for Urban Runoff Pollution Control (Resolution No. 94-102) that urban runoff treatment wetlands that are constructed and operated pursuant to that Resolution and are constructed outside a creek or other receiving water are stormwater treatment systems and, as such, are not waters of the United States subject to regulation pursuant to CWA Sections 401 or 404. This is consistent with the stayed 2015 Clean Water Rule exempting stormwater control features from the definition of “waters of the U.S.” (80 Fed. Reg. 37054 (June 29, 2015).) This Permit requires Permittees to ensure that constructed wetlands installed by Regulated Projects are consistent with Resolution No. 94- 102 and the operation and maintenance requirements contained therein.
C.3-6 The Permit requires Permittees to ensure that pervious pavement systems of 3,000 square feet or more, onsite, joint, and offsite stormwater treatment systems, and HM controls installed by Regulated Projects are properly operated and maintained for the life of the Projects.
Specific Provision C.3 Requirements
Provision C.3.a. (New Development and Redevelopment Performance Standard Implementation) continues the requirements related to having adequate legal authority to address storm water, development review and permitting, environmental review, training, and outreach requirements of MRP 1.
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Provision C.3.b. (Regulated Projects) establishes the different categories of new development and redevelopment projects that Permittees must regulate under Provision C.3. These categories are defined on the basis of the land use and the amount of impervious surface created and/or replaced by the project because all impervious surfaces contribute pollutants to stormwater runoff and certain land uses contribute more pollutants. Impervious surfaces can neither absorb water nor remove pollutants as the natural, vegetated soil they replaced can. Also, urban development creates new pollution by bringing higher levels of car emissions that are aerially deposited, car maintenance wastes, pesticides, household hazardous wastes, pet wastes, and trash, which can all be washed into the storm sewer.
This permit is a 4th generation permit containing stormwater treatment requirements for development projects. Past permits have grandfathered development projects approved prior to those permits’ effective dates, essentially exempting the projects and allowing them to provide no or insufficient stormwater treatment. The Water Board believes a small number of these development projects that were approved more than a decade ago have still not begun construction. A decade is sufficient time to justify requiring the Permittees to revise and update these stagnant development permits to include current LID treatment requirements. Therefore, this provision does not grandfather development projects approved with no stormwater treatment requirements and that have not begun construction. However, this provision allows exemptions for some of these previously approved projects in situations where the Permittees lack legal authority to retroactively change their previous approvals. For a pending Regulated project that has not been approved as of June 30, 2023, and a Permittee has no legal authority to require changes under Government Code sections 66474.2 or 65589.5, subd. (o), this provision does not require the Permittee to require compliance with the new requirements of this Order, because it cannot.
To confirm that the total number of projects previously approved without any Provision C.3-compliant stormwater treatment is indeed small, Provision C.3.b.iv.(1) includes a requirement for Permittees to provide in their 2023 Annual Report a complete list of these types of development projects. For each such Project, the Permittee shall indicate the type of stormwater treatment system required or the specific exemption granted, pursuant to Provision C.3.b.i.(2)(a) and (b). This reporting requirement only applies to Permittees that have Projects subject to Provision C.3.b.i.(2).
Regulated Projects approved under previous permits with non-LID stormwater treatment measures in compliance with the hydraulic sizing criteria of Provision C.3.d. will continue to be grandfathered.
Provision C.3.b clarifies that sidewalks and any other portions of the public right of way that are developed or redeveloped as part of a Regulated Project must be included in the total impervious surface count when evaluating whether projects meet the Regulated Project thresholds, and when evaluating the area that must be treated by the Regulated Project. These impervious surfaces generate urban stormwater pollutants in Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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the form of aerially-deposited particulates and pollutants deposited by bicyclists (e.g., bicycle tire wear particles, and petroleum products) and pedestrians (e.g., PAH loading from adjacent roadways, and trash), they are a source of thermal pollution of runoff (which may contribute to adverse impacts threatening cold water wildlife habitat), and they contribute to hydromodification of receiving waters.126 The pavement maintenance practices defined in Provision C.3.b.ii.(1)(b) are adapted from Appendix 1 of the current (effective August 1, 2019) Western Washington Phase II MS4 Permit.127 These definitions clarify which rehabilitative road maintenance/reconstruction practices do and do not qualify as Regulated Projects. For additionally clarity, bituminous surface treatments have been defined in the Glossary. Upgrading from a bituminous surface treatment with a layer of asphalt or concrete is an excluded pavement maintenance practice because a bituminous surface treatment itself results in an impervious surface, and therefore that upgrade will not produce a new impervious surface (as long as it does not also involve the removal or replacement of the pavement to the base course or lower). For example, if there is an existing dirt or gravel surface, over which there is an existing bituminous surface treatment, then the subsequent application of a new asphalt or concrete layer above the existing bituminous surface treatment is considered an excluded pavement maintenance practice because it does not produce a new impervious surface.
To preclude confusion, Provision C.3.b.ii.(1)(b)(iii) provides a redundant caveat that the listed pavement maintenance practices are included (i.e., not excluded) in the Road Reconstruction Projects category only if they trigger all the criteria specified in Provision C.3.b.ii.(5), including the criteria regarding contiguousness.
Provision C.3.b.ii.(1)(b)(iv) clarifies that, in the scenario in which a project includes a portion of work that is exempted (e.g., applying a bituminous surface treatment to an existing asphalt layer) and a portion of work that is not exempted (e.g., removing and replacing asphalt pavement to the base course, or reconstructing a sidewalk), the portion of work that is not exempted must be evaluated as to whether it meets the criteria for a Regulated Project. In other words, a Permittee may not exclude such a project altogether by categorizing it as the exempted portion; what must be evaluated is whether the non-exempted portion meets the criteria for a Regulated Project.
Public right of way projects (other than public road projects) are explicitly included within the definitions for Other Development Projects and Other Redevelopment Projects.
Public right of way projects (other than public road projects) do not have the same constraints and challenges that public road projects have. 126 The pollution conveyed by urban runoff: A review of sources. December 2019. Alexandra Muller, Helene Osterlund, Jiri Marsalek, Maria Viklander. https://doi.org/10.1016/j.scitotenv.2019.136125 127 https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Stormwater-generalpermits/Municipal-stormwater-general-permits/Western-Washington-Phase-II-Municipal-Stormwater Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Language has been added which clarifies that piecemeal public works projects which are not part of Regulated Projects – examples given are sidewalk gap closures, sidewalk section replacement, and ADA curb ramps (certain pavement maintenance practices within the road prism, such as pothole patching, are already excluded pursuant to Provision C.3.b.ii.(1)(b)(ii)) – are excluded from the Other Redevelopment Projects category, unless they create and/or replace 5,000 contiguous square feet or more of impervious surface. These types of public works projects are typically included in municipalities’ CIPs as a budget line item for small patchwork projects to be completed through their jurisdictions, which individually may not create and/or replace 5,000 contiguous square feet of impervious surface, but which may (if combined together) create and/or replace 5,000 non-contiguous square feet of impervious surface. As we do not intend to consider the latter a Regulated Project, we have added clarifying language to Provision C.3.b.ii.(5) Other Redevelopment Projects, because this is the category under which these projects would likely qualify.
Sidewalk gap closures typically consist of the filling of gaps between sections of sidewalks, with pavement. For example, where a block has a sidewalk, but it is not continuous because it is missing across a parcel, completing the sidewalk across that parcel.
Sidewalk section replacement typically consists of repairing or replacing sidewalk sections that have been damaged or buckled by tree roots, tectonic action, etc.
Private road reconstruction projects are explicitly included within the definition for Other Redevelopment Projects. Permittees do not bear the burden of the design and capital construction costs of private road projects, and Permittees are able to recoup all or a significant portion of the cost of accounting for private road projects, for example, by charging project application review fees. Therefore, private road reconstruction projects are treated the same as all other types of private non-road reconstruction projects.
The Regulated Project category for Road Projects has been renamed from the Previous Permit to New or Widened Road Projects, and applies to both public and private projects.
The impervious surface thresholds for Other Development Projects, Other Redevelopment Projects, and New and Widened Road Projects are set at 5,000 square feet. These thresholds are MEP for this Permit and its Permittees, because:
(1) They align with the impervious surface area threshold of 5,000 square feet in Provision C.3.b.ii.(1) Special Land Use Categories, which has been in place since the Previous Permit term (Order No. R2-2015-0049). (2) The 5,000 square foot threshold (or lower thresholds) for Regulated Projects is consistent with numerous other MS4 permits, including, but not limited to: the California State Water Board’s NPDES Permit for WDRs for Stormwater Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Discharges from Small MS4s (effective July 1, 2013),128 the California Regional Water Quality Control Board Central Valley Region’s NPDES and WDR General Permit for Discharges from MS4s (effective October 1, 2016),129 the California Regional Water Quality Control Board Los Angeles Region’s Regional MS4 NPDES Permit for Los Angeles and Ventura Counties,130 the California Regional Water Quality Control Board Central Coast Region’s NPDES MS4 Permit for the City of Salinas (effective October 1, 2019),131 the City of Portland’s NPDES MS4 Permit (effective January 31, 2011),132 the State of Oregon’s NPDES MS4 General Permit (effective March 1, 2019),133 the State of Washington’s NPDES and State Waste Discharge General Permit for Discharges from Large and Medium MS4s (effective August 1, 2019),134 Eastern Washington’s NPDES and State Waste Discharge General Permit for Discharges from Small MS4s (effective August 1, 2019),135 Western Washington’s NPDES and State Waste Discharge General Permit for Discharges from Small MS4s (effective August 1, 2019),136 the City of Salem’s NPDES MS4 Discharge Permit (effective December 30, 2010),137 the City of Chicago’s Stormwater Management Plan138 for the State of Illinois’s General Permit for Discharges from Small MS4s (effective March 1, 2016),139 U.S. EPA’s NPDES Stormwater Permit for the Boise/Garden City Area (effective October 1, 2021),140 the City of Eugene’s NPDES MS4 Discharge Permit (effective December 30, 2010),141 U.S. EPA’s 128 https://www.waterboards.ca.gov/water_issues/programs/stormwater/phase_ii_municipal.html 129 https://www.waterboards.ca.gov/centralvalley/board_decisions/adopted_orders/general_orders/r5- 2016-0040_ms4.pdf
130 Order No. R4-2021-0105, NPDES Permit No. CAS004004, https://www.waterboards.ca.gov/losangeles/water_issues/programs/stormwater/municipal/ 131 https://www.waterboards.ca.gov/centralcoast/water_issues/programs/stormwater/salinas.html 132 https://www.portlandoregon.gov/bes/37485
133 https://www.oregon.gov/deq/FilterPermitsDocs/ms4ph2genpermit.pdf 134 https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Stormwater-generalpermits/Municipal-stormwater-general-permits/Municipal-Stormwater-Phase-IPermit#:~:text=The%20Phase%20I%20Municipal%20Stormwater,populated%20areas%20in%20the%20 state
135 https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Stormwater-generalpermits/Municipal-stormwater-general-permits/Eastern-Washington-Phase-II-Municipal-Stormwat-(1) 136 https://ecology.wa.gov/Regulations-Permits/Permits-certifications/Stormwater-generalpermits/Municipal-stormwater-general-permits/Western-Washington-Phase-II-Municipal-Stormwater 137 https://www.cityofsalem.net/Pages/ms4-permits-and-annualreports.aspx#:~:text=The%20City%20of%20Salem%20operates,directly%20to%20our%20local%20strea ms
138https://www.chicago.gov/content/dam/city/depts/water/general/Engineering/MS4/MS4_Stormwater_Pla n.pdf
139 https://www2.illinois.gov/epa/topics/forms/water-permits/storm-water/Pages/ms4.aspx 140 https://www.epa.gov/npdes-permits/npdes-stormwater-permit-boisegarden-city-area-ms4s-idaho 141 https://www.eugene-or.gov/476/NPDES-Municipal-Stormwater-Permit Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Washington, D.C. NPDES MS4 Permit (effective June 22, 2018),142 and the State of Maryland’s NPDES General Permit for Discharges from Small MS4s (effective October 31, 2018).143 The 5,000 square feet threshold is, therefore, consistent with reducing the discharge of pollutants from storm water to the MEP.
(3) The Permittees submitted a report144 that the benefit provided by additionally capturing Regulated Projects in the 5,000-10,000 square foot range would likely provide similar benefit (with respect to acres of impervious surface treated) and similar cost (with respect to the burden on Permittees to review project applications and conduct inspections as well as other administrative burdens) as compared to Regulated Projects already captured, such as the 10,000-15,000 square foot range and the 15,000-20,000 square foot range. (4) According to the Permittees’ 2019 Green Infrastructure Plans,145 existing and future Regulated Projects and Non-Regulated, public and private, development and redevelopment projects under the Previous Permit will result in about 2 percent of impervious surface collectively retrofitted in the five Permittee counties with clean water controls by 2020, 4 percent by 2030, and 6 percent by 2040. That pace of retrofit would not address stormwater pollutants discharged from Permittees’ jurisdictions to the MEP. Therefore, in combination with other changes proposed for Provision C.3, this expansion of the Regulated Project threshold provides a significant incremental step towards increasing the amount of impervious surface within Permittees’ jurisdictions retrofitted by clean water controls, regionwide.
(5) Permittees are able to recoup all or a significant portion of the cost of accommodating additional Regulated Projects in the 5,000-10,000 square foot range, for example, by charging fees for project application review and inspection.
(6) U.S. EPA supports the 5,000 square foot threshold for impervious surface area, as it is well understood that untreated stormwater contributes to the degradation of the San Francisco Bay and local creeks and streams, and dense urbanization, 142 https://www.epa.gov/npdes-permits/dc-municipal-separate-storm-sewer-system-ms4 143
https://mde.maryland.gov/programs/water/stormwatermanagementprogram/pages/npdes_ms4_new.aspx 144 “‘White Paper’ on Provision C.3 in MRP 2.0,” Final Report, Bay Area Stormwater Management Agencies Association, February 27, 2015.
145
https://www.waterboards.ca.gov/sanfranciscobay/water_issues/programs/stormwater/MRP/GIPlans2019. html
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infrastructure, and impervious surfaces ring San Francisco Bay and contribute to an increase of contaminants that degrade receiving waters.146,147 The Permit includes language in Provision C.3.b.ii.(4) clarifying that a gravel surface is an impervious surface, except when it is constructed as part of appropriately designed pervious pavement system. Provision C.3.b.ii.(4) also identifies situations when a gravel surface may be excluded from treatment requirements, reflecting their landscape context, which is expected to often allow drainage to a vegetated area or other pervious area that is at least half the size of the contributing graveled surface. Gravel is considered impervious because it is typically compacted by design or by use. U.S. EPA has defined as impervious surfaces “…areas such as gravel roads…that will be compacted through design or use to reduce their impermeability.”148 It further has defined impervious surfaces as “[a]ny surface that prevents or significantly impedes the infiltration of water into the underlying soil. This can include but is not limited to: roads, driveways, parking areas and other areas created using non porous material; buildings, rooftops, structures, artificial turf and compacted gravel or soil.”149 The Ohio EPA includes gravel roads in its required calculations for impervious surfaces.150 Municipalities including Asheville and Durham, North Carolina, and Avon, Ohio, consider gravel driveways impervious for the purpose of calculating those cities’ stormwater utility fees, because compaction results in increased runoff from those surfaces.151
The Road Reconstruction Projects category (projects creating or replacing greater than or equal to one contiguous acre of impervious surface) is distinct from the New and Widening Road Projects category (which addresses only new road projects) because it addresses the significant reconstruction of existing public roads (reconstruction of private roads is addressed separately, in the Other Development Projects category).
The definition of contiguous includes project areas interrupted by cross streets or intersections. Provision C.3.b.ii.(1)(b) distinguishes which public road reconstruction projects are and are not excluded.
The treatment requirements for Road Reconstruction Projects are consistent with other MS4 permits, including, but not limited to: the City of Portland’s NPDES MS4 Permit (effective January 31, 2011),132 the State of Oregon’s NPDES MS4 General 146 SFEI, Wu, J., Trowbridge, P., Yee, D., McKee, L., and Gilbreath, A., 2018. 147 Regional Monitoring Program Small Tributaries Loading Strategy: SFEI, McKee et al., 2006. 148 U.S. EPA, July 2016. Summary of State Post Construction Stormwater Standards, p.13. 149 Ibid., p.19
150 Ohio EPA, Oct. 2018. Post-Construction Storm Water Questions and Answers, p.1. “What surfaces should be considered impervious? (…) rooftops, paved or gravel roads….” and Ohio EPA, Oct. 2019. Guidance on Post-Construction Storm Water Controls for Solar Panel Arrays, p.1, “Paved or gravel roads…must also include post-construction storm water management.” 151 https://www.ashevillenc.gov/department/public-works/stormwater-services-utility/stormwater-fees/ https://www.durhamnc.gov/864/Impervious-Surface. Durham specifically references compacted gravel. https://www.cityofavon.com/DocumentCenter/View/4298/Exhibit-A---Ordinance-No-105-17-Chapter-1056- FINAL?bidId=. “Impervious surfaces include…compacted gravel surface[s]” (p.2).
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Permit (effective March 1, 2019),133 the State of Washington’s NPDES and State Waste Discharge General Permit for Discharges from Large and Medium MS4s (effective August 1, 2019),134 Eastern Washington’s NPDES and State Waste Discharge General Permit for Discharges from Small MS4s (effective August 1, 2019),135 Western Washington’s NPDES and State Waste Discharge General Permit for Discharges from Small MS4s (effective August 1, 2019),136 the City of Salem’s NPDES MS4 Discharge Permit (effective December 30, 2010),137 the City of Chicago’s Stormwater Management Plan138 for the State of Illinois’s General Permit for Discharges from Small MS4s (effective March 1, 2016),139 U.S. EPA’s NPDES Stormwater Permit for the Boise/Garden City Area (effective October 1, 2021),140 the City of Eugene’s NPDES MS4 Discharge Permit (effective December 30, 2010),141 U.S. EPA’s NPDES MS4 Permit for Washington, D.C. (effective June 22, 2018),142 and the State of Maryland’s NPDES General Permit for Discharges from Small MS4s (effective October 31, 2018).143
The Road Reconstruction Regulated Projects category – in addition to the Numeric Implementation retrofit requirements in Provision C.3.j.ii.(2) – is intended to address the significant pollutant loading and hydrologic impact to receiving waters from Permittees’ existing public roads and to clarify the amount of road reconstruction that is redevelopment justifying an investment of resources to retrofit the road with clean water controls.
In subsequent Permits, the Water Board may consider removing or revising Provision C.3.b.ii.(5)(c), which allows the Permittees to use alternative sizing criteria for Road Reconstruction Projects, as well as Provision C.3.b.ii.(5)(d), which allows the Permittees to credit the acreage of impervious surface created or replaced for Road Reconstruction Projects towards the Numeric Implementation retrofit requirements specified in Provision C.3.j.ii.(2).
This Regulated Project category includes utility trenching projects which are - on average, over the entire length of the project - greater than or equal to 8 feet wide. This is intended to include utility trenching projects that alter a portion of the roadway sufficient to warrant retrofit with clean water controls. The Water Board will use information collected during the Permit term to consider modifying the utility trenching criteria in a subsequent permit.
The Large Detached Single-Family Home Projects category for Regulated Projects captures such projects that create and or replace 10,000 square feet or more of impervious surface, collectively over the entire project site, and that are not part of a larger development or redevelopment plan. This Regulated Project category coincides with Provision C.3.i, which prescribes site design measures for small detached singlefamily home projects which create and/or replace 2,500-10,000 square feet of impervious surface. Recognizing that SB 9 also allows for the construction of an Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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accessory dwelling unit (ADU) on a lot with an existing single-family home, without subdividing the lot, C.3.b.ii.(6)(d) clarifies that such an action would fall under the large single-family home threshold of 10,000 sq. ft. of impervious surface. This category for Regulated Projects is necessary and MEP because:
(1) Large Detached Single-Family Home Projects can cause the same urban runoff pollutant and hydromodification impacts that projects of similar sizes in any of the other Regulated Projects categories can produce, because of the created/replaced impervious surface, because those surfaces are similar in nature to other pollutant-generating surfaces in the urban environment, and because aerially deposited urban pollutants are deposited and discharged from those projects to the MS4. Additionally, when flows from these projects flow onland (e.g., along public streets, ditches and gutters) prior to entering the MS4 system and discharging to receiving waters, they can mobilize stormwater pollutants from those surfaces, eventually transporting them to receiving waters. (2) In certain Permittees’ jurisdictions, a significant portion of development and redevelopment projects consists of large detached single-family home projects because a significant portion of those Permittees’ land use is large lot singlefamily residential.152 Therefore, this new category has been added to control the pollutant discharges associated with this category of development and redevelopment.
(3) Permittees are able to recoup all or a significant portion of the cost of accommodating this new category of Regulated Projects, for example, by charging project application review and inspection fees. 152 For example: The City of Los Altos’ zoning map is dominated by residential zoning, and within that residential zoning, the majority of lots have a minimum lot size of 20,000 to 40,000 square feet:
(https://www.losaltosca.gov/sites/default/files/fileattachments/community_development/page/39021/los_al tos-land_use_final_w_labels-24x36-20181026.pdf); the Town of Los Altos Hills’s zoning map is dominated by residential zoning, and all residential lots have a minimum lot size of one acre:
(http://www2.lynxgis.com/Html5Viewer/Index.html?configBase=http://www2.lynxgis.com/Geocortex/Essen tials/REST/sites/Los_Altos_Hills/viewers/LAH/virtualdirectory/Resources/Config/Default); the Town of Atherton’s zoning map (other than park space) is dominated by residential zoning, and within that residential zoning, the majority of lots have a minimum lot size of one acre, and the remainder have a minimum lot size of 10,000-15,000 square feet: (https://www.ci.atherton.ca.us/209/Maps); the Town of Woodside’s zoning map (ignoring conservation areas and park space) is dominated by residential zoning, and within that residential zoning, the majority of lots have a minimum lot size of one or three acres, and the remainder have a minimum lot size of 20,000 square feet:
(https://www.woodsidetown.org/planning/town-woodside-zoning-map); the Town of Portola Valley’s zoning map is dominated by residential zoning, and within that residential zoning, the majority of lots have a minimum lot size of at least one acre, and the remainder have a minimum lot size of 15,000-20,000 square feet: (https://www.portolavalley.net/home/showpublisheddocument/6770/635634073606070000; https://library.municode.com/ca/portola_valley/codes/code_of_ordinances); and the Town of Hillsborough’s zoning map is dominated by a single residential zone, which has a minimum lot size of half an acre: (https://isd.smcgov.org/gis-data-download).
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(4) There are many other MS4 Permits that consider it MEP to include analogous treatment requirements for large detached single-family home projects, including, but not limited to: the Los Angeles Regional Water Board’s Regional MS4 NPDES Permit (effective September 11, 2021),153 the City of Portland’s NPDES MS4 Permit (effective January 31, 2011),132 the State of Oregon’s NPDES MS4 General Permit (effective March 1, 2019),133 the State of Washington’s NPDES and State Waste Discharge General Permit for Discharges from Large and Medium MS4s (effective August 1, 2019),134 Western Washington’s NPDES and State Waste Discharge General Permit for Discharges from Small MS4s (effective August 1, 2019),136 the City of Salem’s NPDES MS4 Discharge Permit (effective December 30, 2010),137 the City of Eugene’s NPDES MS4 Discharge Permit (effective December 30, 2010),141 U.S.
EPA’s NPDES MS4 Permit for Washington, D.C. (effective June 22, 2018),142 and the State of Maryland’s NPDES General Permit for Discharges from Small MS4s (effective October 30, 2018).143 The 10,000 square foot threshold for this category is, therefore, consistent with reducing the discharge of pollutants from stormwater to the MEP.
(5) U.S. EPA Region 9 supports the expansion of these Regulated Project categories, as it is well understood that untreated stormwater contributes to the degradation of the San Francisco Bay and local creeks and streams, and dense urbanization, infrastructure and impervious surfaces ring San Francisco Bay and contribute to an increase of contaminants that degrade receiving waters.146,147 Provision C.3.b.iii Implementation Level directs the Permittees to implement the Regulated Project definitions in Provision C.3.b.ii beginning July 1, 2023.
Prior to July 1, 2023, the Regulated Project definitions in Provision C.3.b.ii in Attachment I, which are requirements from the Previous Permit, are effective and apply.
The purpose of this delayed implementation date for Provision C.3.b.ii is to allow Permittees the time needed to arrange all relevant planning authorities and municipal processes, train their staff, etc., regarding changes to Provision C.3.b.ii relative to the Previous Permit.
Provision C.3.c (Low Impact Development (LID)) recognizes LID as a cost-effective, beneficial, holistic, integrated stormwater management strategy.154 The goal of LID is to reduce runoff and mimic a site’s predevelopment hydrology by minimizing disturbed 153
https://www.waterboards.ca.gov/losangeles/water_issues/programs/stormwater/municipal/regional_permit .html
154 U.S. EPA, Reducing Stormwater Costs through Low Impact Development (LID) Strategies and Practices (Publication Number EPA 841-F-07-006, December 2007) http://water.epa.gov/polwaste/green/upload/2008_01_02_NPS_lid_costs07uments_reducingstormwaterc osts-2.pdf)
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areas and impervious cover and then infiltrating, storing, detaining, evapotranspiring, and/or biotreating stormwater runoff close to its source. LID employs principles such as preserving and recreating natural landscape features and minimizing imperviousness to create functional and appealing site drainage that treats stormwater as a resource, rather than a waste product. Practices used to adhere to these LID principles include measures such as preserving undeveloped open space, rain barrels and cisterns, green roofs, pervious pavement systems, and biotreatment through rain gardens, bioretention units, bioswales, and planter/tree boxes. This is a standard, current, ordinary, and regular practice being implemented in numerous jurisdictions in California, the U.S., and internationally, including: the Permittees’ jurisdictions, Los Angeles, San Diego, San Francisco, Portland, OR, Seattle, Minneapolis, Milwaukee, Kansas City, Chicago, New York City, Philadelphia, Auckland, New Zealand, Chinese “sponge cities” such as Wuhan and Changde, and others.
This Provision sets forth a three-pronged approach to LID with source control, site design, and stormwater treatment requirements. The concepts and techniques for incorporating LID into development projects, particularly for site design, have been extensively discussed in BASMAA’s Start at the Source manual (1999) and its companion document, Using Site Design Techniques to Meet Development Standards for Stormwater Quality (May 2003), as well as in various other LID reference documents.
Provision C.3.c.i.(1) lists source control measures that must be included in all Regulated Projects as well as some that are applicable only to certain types of businesses and facilities. These measures are recognized nationwide as basic, effective techniques to minimize the introduction of pollutants into stormwater runoff. Provision C.3.c.i.(2)(a) lists site design elements that must be implemented at all Regulated Projects. These design elements are basic, effective techniques to minimize pollutant concentrations in stormwater runoff as well as the volume and frequency of discharge of the runoff. One design element requires each Regulated Project to include at least one site design measure from a list of six that includes recycling of roof runoff, directing runoff into vegetated areas, and installation of pervious pavement systems instead of traditional paving. All these measures serve to reduce the amount of runoff and its associated pollutants being discharged from the Regulated Project.
Provision C.3.c.i.(2)(b) requires the Permittees to implement design specifications for pervious pavement systems. Design specifications are necessary because improperly designed and engineered pervious pavement systems may cause flooding and the discharge of insufficiently treated stormwater runoff. Provision C.3.c.i.(2)(c) requires each Regulated Project and all projects implemented pursuant to Provision C.3.j to treat 100 percent of the Provision C.3.d.
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runoff with LID treatment measures onsite or with LID treatment measures at a joint stormwater treatment facility.
Provision C.3.c.i.(2)(c)(i) defines LID treatment measures as harvesting and use, infiltration, evapotranspiration, or biotreatment.
The Permittees completed a “White Paper” on Provision C.3. on February 27, 2015.155 The White Paper concluded that the pollutant removal performance of biotreatment facilities, overall and on average, is equivalent or better than the likely real-world performance of harvest and use facilities and as good as the likely performance of infiltration facilities when considered over the long term. The White Paper also noted that biotreatment facilities require less maintenance and are less prone to failure than harvest and use facilities, and in some cases, are also preferable to direct infiltration facilities.
Provision C.3.c.i.(2)(c)(ii) requires biotreatment systems to meet minimum performance specifications in order to be considered as LID treatment. This subprovision also requires biotreatment soil media to meet the current minimum specifications developed and included in MRP 1.156 However, this subprovision recognizes that the current soil media specifications may need to be modified because of variability in climate, rainfall, and compost composition among the different counties. Therefore, this subprovision allows for the Permittees to collectively (on an all-Permittee scale or countywide scale) develop and adopt revisions to the current soil media minimum specifications, subject to the Executive Officer’s approval.
Provision C.3.c.i.(2)(c)(ii)(a) prompts the formation of a workgroup to discuss and investigate the pollutant removal effectiveness and hydrologic equivalency of – and suggested criteria for – high flow-rate media treatment systems in combination with retention/detention measures such as silva cells and structural soils, as compared to conventional bioretention, specifically for use in projects with significant technical site constraints. The workgroup should consider issues including: the MEP standard in relation to the use of such systems; the pollutant removal benefits and hydrologic criteria associated with the MRP’s LID design approach and which are included in other MS4 permits, such as the Western Washington Phase II Municipal Stormwater Permit and the Los Angeles Regional MS4 Permit (NPDES Permit No. CAS004004).
The outcomes of this workgroup may inform modifications to the Permit in a subsequent term.
Provision C.3.d (Numeric Sizing Criteria for Stormwater Treatment Systems) sets forth the hydraulic sizing design criteria that the stormwater treatment systems installed for 155 BASMAA, February 27, 2015. “White Paper” on Provision C.3 in MRP 2.0: Final Report. 156 Attachment L of Board Order No. R2-2009-0074, adopted October 14, 2009, and revised November 27, 2011.
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Regulated Projects must meet. These criteria ensure that stormwater treatment systems will be designed to treat the optimum amount of relatively smaller-sized runoffgenerating storms each year. That is, the treatment systems will be sized to treat the majority of rainfall events generating polluted runoff but will not have to be sized to treat the few very large annual storms as well. For many projects, such large treatment systems become infeasible to incorporate into the projects. Provision C.3.d.iii. defines infiltration devices and establishes limits on the use of stormwater treatment systems that function primarily as infiltration devices. The intent of the Provision is to ensure that the use of infiltration devices, where feasible and safe from the standpoint of structural integrity, must also not cause or contribute to the degradation of groundwater quality at the project sites. Provision C.3.d.iv is optional and allows the Permittees to collectively submit a proposal which evaluates the benefit of runoff reduction associated with trees and treatment control sizing of tree-based stormwater treatment in combination with structural soils and suspended pavement systems (or other methods which provide tree rooting volume), which will be considered for incorporation into a subsequent permit. This proposal is intended to learn from the findings of the ongoing Healthy Watersheds, Resilient Baylands project,157 a San Francisco Estuary Partnership-led U.S. EPA Water Quality Improvement Fund (WQIF) project that is investigating similar criteria, and which has a technical action committee (TAC) that Water Board staff and Permittee representatives are participating in, to support the Permittees’ submittal, and to ensure it has regional application. The purpose of this subprovision is to characterize the stormwater treatment and hydrologic benefit that new treebased treatment systems provide when designed and maintained to a defined standard, not to credit existing trees that provide little water quality and hydrologic benefit because of the capacity and manner of treatment provided.
This subprovision clarifies the status of the Permittees’ collectively-submitted 2011 Feasibility/Infeasibility Criteria Report, submitted pursuant to Provision C.3.i.(2)(b)(iv) of MRP 1 (Order No. R2-2009-0074), in which the Permittees proposed to grant Interceptor Tree Credits for Regulated Projects. The credits would have allowed Regulated Projects to reduce the calculated amount of impervious surface that has to be treated by LID, thus reducing treatment control sizing. Interceptor Tree Credits are not allowed during the current Permit term because the 2011 Feasibility/Infeasibility Criteria Report did not sufficiently justify them, because they have not yet been sufficiently studied, and because the Water Board has not approved their use. In addition, this subprovision allows the Permittees to submit a report on this issue as described above that could be incorporated into a subsequent permit.
157 https://www.sfei.org/projects/healthy-watersheds-resilient-baylands Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Provision C.3.e (Alternative or In-Lieu Compliance with Provision C.3.b.) recognizes that not all Regulated Projects may be able to install LID treatment systems onsite because of site conditions, such as existing underground utilities, right-of-way constraints, and limited space.
Provision C.3.e.i. This Provision allows any Regulated Project to provide LID treatment for up to 100% of the required Provision C.3.d. stormwater runoff at an offsite location or pay equivalent in-lieu fees to provide LID treatment at a Regional Project, as long as the offsite or Regional Project is in the same watershed as the Regulated Project and constructed within three years of the end of construction of the Regulated Project. The three years of additional time are allowed because more time may be required to complete construction of offsite and Regional projects because of administrative, legal, and/or construction delays. The Water Board acknowledges, in some instances, an even longer time may be required to complete construction of Regional Projects because they may involve a variety of public agencies and stakeholder groups and a longer planning and construction phase.
Therefore, the timeline for completion of a Regional Project may be extended up to 5 years after the completion of the Regulated Project, with prior Executive Officer approval. Executive Officer approval will be granted contingent upon a demonstration of good faith efforts to implement the Regional Project, such as having funds encumbered and applying for the appropriate regulatory permits.
Provision C.3.e.i language noting that Offsite Projects or Regional Projects must comply with Provision C.3.g “as appropriate” means that those projects (either Provision C.3.e.i.(1) or Provision C.3.e.i.(2)) must comply with Provision C.3.g if the original site seeking alternative compliance would otherwise be required to comply with Provision C.3.g.
To increase the flexibility available to Permittees, Provision C.3.e.i.(1) alternative compliance projects may provide 100 percent of the amount of runoff identified in Provision C.3.d for the Regulated Project’s drainage area at Offsite Projects in the same watershed. Likewise, Provision C.3.e.i.(2) alternative compliance projects may provide 100 percent of the amount of runoff identified in Provision C.3.d for the Regulated Project’s drainage area at Offsite Projects or Regional Projects through payment to an in-lieu fee program. However, Provision C.3.e.i.(1) and Provision C.3.e.i.(2) qualify that by requiring Permittees to include as much LID onsite as possible, to the MEP.
During the Permit term, the Permittees may submit new information for an alternative compliance program for exchanges of impervious surface treatment credits at the regional, county, and/or municipal level, resulting in offsite treatment or payment for equivalent offsite compliance for 100 percent of the required Provision C.3.c-d stormwater runoff (and Provision C.3.g, as appropriate).
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Any such program should include at least the following: a clear organizational framework; demonstration of the treatment of an equivalent quantity of both stormwater runoff and pollutant loading (e.g., through the equivalent or net increase in impervious surface treated, and the equivalent or net reduction in flow and/or pollutant load, but not necessarily in the same watershed) and the achievement of net environmental benefit; an accounting and reporting system; a process for collection and timely use of funds; compliance with Provisions C.3.c-d and C.3.f-h; program oversight by an entity or entities; and expectations for timing and location. If or when such a program proposal is submitted, the Water Board will consider the new information and may consider amending the Permit to include a third option in Provision C.3.e.i that formally recognizes and allows the program specified in the proposal. This is in part a response to the City of San Pablo-led U.S. EPA Water Quality Improvement Fund (WQIF)-funded Regional Compliance for a Sustainable Bay project, which is investigating such a program that would facilitate alternative compliance exchanges between Permittees within Contra Costa County, but may be of interest in other counties and regionally.
As Permittees implement Provision C.3.e.i – which increases the flexibility available to Permittees when planning LID required by Regulated Projects – over the course of this Permit term, they will further incorporate their implementation of it into their municipal administrative and planning processes. Over the course of the Permit term, as Permittees become more accustomed to using Provision C.3.e.i, the Permittees will not be as reliant on Provision C.3.e.ii during their planning processes.
Therefore, the Water Board will consider removing Provision C.3.e.ii in the subsequent Permit term, whose utility will be replaced by the Permittees’ increased implementation of Provision C.3.e.i.
Provision C.3.e.ii. (Special Projects) When considered at the watershed scale, certain types of smart growth and high density, and transit-oriented development can either reduce existing impervious surfaces, or create less “accessory” impervious areas and auto-related pollutant impacts, to the extent they replace or reduce development projects that do not have those characteristics. Incentive LID Treatment Reduction Credits approved by the Water Board may be applied to these types of Special Projects.
This Provision includes specific criteria for determining which types of Regulated Projects may be considered Special Projects and establishes different categories of Special Projects based on size, land use type, and density. Except for Category A, which represents the smallest Special Projects, Category B and C also use location, density, and parking criteria to establish a tiered approach for determining the total LID Treatment Reduction Credit available for any given Special Project.
Category C additionally includes affordable housing criteria for determining the total LID Treatment Reduction Credit available for Category C Special Projects.
Affordable housing criteria are included in Category C, for two primary reasons.
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First, affordable housing projects typically have high DUs/acre (as further incentivized by the Density Credits) and are typically located near public transportation (as further incentivized by the Location Credits), and thus they likely produce less automobile traffic (i.e., less pollutant loading to the MS4) compared to other development and redevelopment projects that do not have those characteristics. Second, affordable housing credited by this Provision will help reduce unsheltered homelessness, which will reduce pollutant discharges (e.g., of trash and sewage) from homeless encampments and other sources (e.g., RVs) into MS4s.158 The Water Board recognizes that whether to allow for affordable housing is entirely within the Permittee’s land use and zoning authority and discretion. Since such development can reduce pollutants from MS4 systems, the Affordable Housing Credits are provided in the Permit. It will benefit the unhoused population, as follows:
The affordable housing criteria are structured in such a way that significant portions of the allowable rent/mortgage rates are capped for Extremely Low income households (0-30% of AMI), Very Low income households (31-50% of AMI), and Low income households (51-80% of AMI), rather than allowing all affordable housing units to qualify even if they only are affordable for Moderate income households (81- 120% of AMI) which limit affordability to a significant portion of the population. The link to water quality improvement is expected to decline as rent/mortgage rates increase, as rent/mortgage rates as high as the Moderate level are likely to reduce unsheltered homelessness and its associated impacts at a much lower rate.
The other Category C credits (location, density, and parking criteria) are maintained from the Previous Permit, but reduced so that Affordable Housing Credits are the dominant credit for Category C projects while still recognizing the benefits provided by location, density, and parking criteria, and so that the total possible credit available for Category C Special Projects remains 100 percent. Category C of the Previous Permit primarily credited transit-oriented development (via Location Credits) and resulted in the treatment of approximately 324 acres of impervious surface by non-LID measures region-wide, most of which is attributable to projects for which the Permittees’ reporting did not clearly demonstrate that it would have been infeasible to incorporate onsite LID or contribute to offsite LID, as allowed by Provision C.3.e.i. Therefore, Category C has been revised to solely target affordable housing development and redevelopment projects, as Provision C.3.e.i in this Permit already provides sufficient flexibility for other non-affordable housing development and redevelopments that would have qualified as Category C Special Projects in the Previous Permit.
158 Batko, Oneto, and Shroyer, Dec. 2020. Unsheltered Homelessness: Trends, Characteristics, and Homeless Histories. Urban Institute, pp. 12-13.
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Area Household Median Income (AMI) uses the most current Official State Income Limits (adjusted for household size), which are defined on the California Department of Housing and Community Development’s website.159,160
The definitions included in Category C for affordable housing are adapted from the Metropolitan Transportation Commission (MTC),161 the Association of Bay Area Governments (ABAG),162 the East Bay Housing Organizations (EBHO),163 and the Federal Department of Housing and Urban Development (HUD).164 For example, HUD defines Affordable Housing as housing for which rent or mortgage costs (including utilities) are no greater than 30 percent of total household income;165,166 for metropolitan areas, HUD defines Moderate household incomes as 81-120 percent of area median household income (AMI), Low household incomes as 51-80 percent of AMI, Very Low household incomes as 31-50 percent of AMI, and Extremely Low household incomes as 0-30 percent of AMI.167,168,169,170 Furthermore, Affordable Housing is defined by the Metropolitan Transportation Commission (MTC) as housing with deed restrictions running at least 55 years.171,172 To be considered a Category C Special Project, the Regulated Project must be primarily a residential development project, achieve at least a gross density of 40 DU/acre, and the project’s DUs must comply with the criteria outlined in Provision C.3.e.ii.(5)(c), which are: for 70 percent Affordable Housing Credit, 100 percent of the DUs within a Category C Special Project must have rent/mortgage rates (including utilities) no greater than 30 percent of the Moderate household income level (120 percent of AMI), 75 percent of the DUs must have rent/mortgage rates 159 https://www.hcd.ca.gov/grants-funding/income-limits/state-and-federal-income-limits.shtml 160 As of December 31, 2021, they are: https://www.hcd.ca.gov/grants-funding/income-limits/state-andfederal-income-limits/docs/income-limits-2021.pdf 161 https://mtc.ca.gov/whats-happening/news/mtc-offers-cities-counties-big-carrot-spur-affordable-housing 162 https://abag.ca.gov/sites/default/files/rhna_methodology_technical_documentation.pdf 163 http://ebho.org/resources/what-is-affordable-housing/ 164 https://www.hud.gov/topics/rental_assistance
165 https://archives.hud.gov/local/nv/goodstories/2006-04- 06glos.cfm#:~:text=Affordable%20Housing%3A%20Affordable%20housing%20is,Reference%3A%20ww w.hud.gov
166 https://www.hud.gov/program_offices/administration/hudclips/acts/nah-ac 167 https://www.ffiec.gov/
168 https://www.spur.org/news/2018-06-21/what-we-talk-about-when-we-talk-about-affordable-housingprimer 169 https://www.planbayarea.org/2050-plan/plan-bay-area-2050-blueprint/plan-bay-area-2050-finalblueprint-documents 170 https://abag.ca.gov/sites/default/files/rhna_methodology_technical_documentation.pdf 171 https://mtc.ca.gov/whats-happening/news/mtc-offers-cities-counties-big-carrot-spur-affordable-housing 172 https://mtc.ca.gov/our-work/fund-invest/investment-strategies-commitments/focused-growth/affordablehousing/housing Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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(including utilities) no greater than 30 percent of the Low household income level
80 percent of AMI), 50 percent of the DUs must have rent/mortgage rates (including utilities) no greater than 30 percent of the Very Low household income OHYHO
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Density is defined as the total number of residential units divided by the acreage of the entire site area, including land occupied by public rights-of-way, recreational, civic, commercial and other non-residential uses. Floor Area Ratio (FAR) is defined as the ratio of the total floor area on all floors of all buildings at a project site (except structures, floors, or floor areas dedicated to parking) to the total project site area.
Gross Density and FAR have been purposely defined to include public rights-of-way, recreational, civic, commercial, and other non-residential uses so as to raise the bar for Regulated Projects to qualify for the LID Reduction Credits allowed in Provision C.3.e.ii. That is, these more conservative Gross Density and FAR values may result in some Regulated Projects qualifying for less LID Reduction Credits or not qualifying at all.
The reporting data for Special Projects under the Previous Permit showed that “lack of space to provide full LID stormwater treatment” is among the most frequent reason invoked for why 100 percent LID treatment onsite is infeasible. Therefore, it is appropriate that the space reserved for public rights-of-way, recreation, civic, commercial, and other non-residential uses are included in the calculations for gross density and FAR, especially since many of these areas may be used for installation of LID treatment measures.
Density LID Treatment Reduction Credits are allowed for mixed use development projects, which consist of a mix of residential and commercial land uses, based on density measured by either DU/acre or FAR for Category B Special Projects and by DU/acre for Category C Special Projects. A prior permit (R2-2009-0074) did not accommodate this variability and penalized dense mixed-use projects that are mostly residential by restricting density LID Treatment Reduction Credits to only floor area ratio criteria.
The total available LID Treatment Reduction Credit may be used to reduce the amount of stormwater runoff that must be treated with LID stormwater treatment systems. The remaining amount of stormwater runoff must be treated with one or a combination of the following two specific non-LID treatment systems:
(1) Tree-box-type high flowrate biofilters
(2) Vault-based high flowrate media filters
An additional reporting requirement has been added to Provision C.3.e.v.(3) and to Table 3.1 Standard Tracking and Reporting Form for Potential Special Projects, Total Impervious Surface Created/Replaced: The total impervious surface in acres created or replaced by the project, which is subject to the treatment requirements listed in Provision C.3.e.ii.(1). The purpose of this additional reporting requirement is to better characterize the extent and lost opportunity (regarding no or reduced LID treatment) of Special Projects.
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To reduce the burden of reporting, the semi-annual reporting of Special Projects that are being considered by Permittees prior to the Permittees granting final planning approval has been reduced to annual, within the Annual Report. Although the frequency of reporting has been reduced, the current reporting requirements for this Provision are not diminished because the data is necessary for Water Board staff to validate the Permittees’ analysis of the number and size of potential Special Projects that may be approved during this permit term, and to ensure Permittees are taking all reasonable steps to ensure that the Special Projects Provision is only used when they certify that neither onsite nor offsite LID are feasible. The Water Board intends to use the data collected in the reporting requirements to revise the Special Projects criteria as appropriate for the next permit term.
The narrative summaries included in Permittees’ Annual Reports generally have not properly justified the need for the Category C Special Projects Provision as it existed in MRP 2, because those narrative summaries have not sufficiently demonstrated the infeasibility of onsite or offsite LID. This further supports the change that has been made to Category C.
Provision C.3.e.ii Special Projects is temporarily retained in this Permit term, and will be considered for removal in subsequent permit terms. This is because Permittees will have had three Permit terms (Order Nos. R2-2009-0074, R2-2015-0049, and R2-2022-0018) to develop the alternative compliance programs allowed by Provision C.3.e.i. Provision C.3.e.ii Special Projects is intended to serve as an interim measure while Permittees further develop their Provision C.3.e.i alternative compliance programs, because Provision C.3.e.i is capable of providing the flexibility needed to accommodate the technical infeasibility of onsite LID for Regulated Projects, without foregoing the water quality and hydrologic benefits provided by LID.
The non-LID treatment measures allowed by Provision C.3.e.ii Special Projects do not provide those benefits to the same degree, although that reduction may be somewhat offset by the water quality benefits associated with avoidance of or potential reductions in unsheltered homelessness.
Provision C.3.e.iii. Implementation Level directs the Permittees to implement Provision C.3.e.ii beginning July 1, 2023. Prior to July 1, 2023, Provision C.3.e.iii.(5) directs Permittees to implement Provision C.3.e.ii in Attachment I, which are requirements from the Previous Order, with dates adjusted for consistency. The rationale for these requirements is set forth in the Previous Permit's Fact Sheet and is incorporated herein. The purpose of the delayed implementation date for Provision C.3.e.ii is to allow Permittees the time needed to arrange all relevant planning authorities and municipal processes to implement changes to Provision C.3.e.ii relative to the Previous Permit.
Provision C.3.f. (Alternative Certification of Stormwater Treatment Systems) allows Permittees to have a third-party review and certify a Regulated Project’s compliance with the hydraulic design criteria in Provision C.3.d. Some municipalities do not have the Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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staffing resources to perform these technical reviews. The third-party review option addresses this staffing issue. This Provision requires Permittees to make a reasonable effort to ensure that the third-party reviewer has no conflict of interest with regard to the Regulated Project being reviewed.
Provision C.3.g. (Hydromodification Management) requires that certain new development projects manage increases in stormwater runoff flow and volume so that post-project runoff shall not exceed estimated pre-project runoff rates and durations, where such increased flow and/or volume is likely to cause increased potential for erosion of creek beds and banks, silt pollutant generation, or other adverse impacts on beneficial uses due to increased erosive force.
Based on Hydrograph Modification Management Plans prepared by the Permittees, the Water Board adopted hydromodification management (HM) requirements for Alameda Permittees (March 2007), Contra Costa Permittees (July 2006), Fairfield-Suisun Permittees (March 2007), Santa Clara Permittees (July 2005), and San Mateo Permittees (March 2007). Those HM requirements are stated in Provision C.3.g., and Attachment C includes maps prepared by the Alameda, Santa Clara, San Mateo, and Fairfield-Suisun Permittees showing areas where HM requirements apply.
The Alameda, Santa Clara and San Mateo Permittees have adapted the Western Washington Hydrology Model173 for modeling runoff from development project sites, sizing flow duration control structures, and determining overall compliance of such structures and other HM control structures (HM controls) in controlling runoff from the project sites to manage hydromodification impacts as described in the Permit. The adapted model is called the Bay Area Hydrology Model (BAHM).174 All Permittees may use the BAHM if its inputs reflect actual conditions at the project site and surrounding area, including receiving water conditions. As Permittees gain experience in designing and operating HM controls, the Programs may make adjustments in the BAHM to improve its function in controlling excess runoff and managing hydromodification impacts. Notification of all such changes shall be given to the Water Board and the public through such mechanism as an electronic email list.
The Contra Costa Permittees have developed sizing charts for the design of flow duration control devices. MRP 1 allowed the Contra Costa Permittees to conduct a monitoring program to verify the performance of these devices and to identify whether streams to which Contra Costa Permittees discharge may have a different susceptibility to HM impacts, thus justifying a different threshold for control of flows resulting in those impacts. The Contra Costa Permittees submitted an IMP Monitoring Report,175 which 173 https://ecology.wa.gov/Regulations-Permits/Guidance-technical-assistance/Stormwater-permitteeguidance-resources/Stormwater-manuals/Western-Washington-Hydrology-Model 174 See www.bayareahydrologymodel.org, Resources.
175 Contra Costa Clean Water Program, September 15, 2013. IMP Monitoring Report: IMP Model Calibration and Validation Project.
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found that Contra Costa HM measures generally, but not entirely, met MRP 1’s HM requirements for the Alameda, Santa Clara, and San Mateo Permittees, and the City of Vallejo. The Contra Costa Permittees did not submit information showing that Contra Costa creeks had a different susceptibility to erosion. That is, they did not submit a justification for using erosion thresholds different than those accepted for the Alameda, Santa Clara, and San Mateo Permittees, and the City of Vallejo. Under MRP 1, the Water Board had accepted a higher threshold for control of HM effects (i.e., controlling the range of flows beginning at 20 percent of the 2-year pre-project peak flow, as opposed to 10 percent of the 2-year pre-project peak flow). Because this additional information was not submitted, and Contra Costa streams are generally similar to other Bay Area streams, MRP 2 extended the 10 percent standard to Contra Costa, and included requirements for Contra Costa to complete modifications to its HM approach to ensure that projects implement that consistent approach within a specified time.
Pursuant to Provision C.3.g.iii of MRP 2, the Contra Costa Permittees submitted a HM Technical Report176 with the 2017 Annual Report, which suggested changes to sizing factors for an array of HM controls used by Contra Costa Permittees to comply with the HM Standard in Provision C.3.g.ii. Water Board staff’s review of the 2017 HM Technical Report177 and subsequent discussion with the Contra Costa Permittees culminated in modifications to Provision C.3.g.iii of this Permit, which requires the Contra Costa Permittees to revise their 2017 HM Technical Report so that HM Projects comply with the HM Standard of Provision C.3.g.iii, by excluding data that are not representative and assumptions that are not supported, and by producing a complete suite of sizing factors that are protective of all likely site and watersheds characteristics within Contra Costa County, for all types of HM controls that may be used in the County and for sites with Hydrologic Soil Group A, B, C, and D soils.
The CCCWP Permittees are required to use a base case sizing factor of 6.5 percent for the complete suite of sizing factors, which is a conservative sizing factor based on sites with project-scale built-out imperviousness in the upper watershed for the Lower Control Threshold of 0.1Q2, for soil percolation rates of 0.024 inches per hour, as presented in Table 5-7 on page 58 of the 2017 HM Technical Report. In developing the complete suite of sizing factors, the CCCWP Permittees are required to justify deviations from the base case as conditions of exception that could allow alternative sizing while still being SURWHFWLYH
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and different applicable geographic characteristics.
This requirement in Provision C.3.g.iii is attached to the reporting requirement in Provision C.3.g.vi.(2).
176 Contra Costa Clean Water Program Hydromodification Technical Report. September 29, 2017. 177 Lichten, March 19, 2021. Response to CCCWP’s Hydromodification Management Memo of November 4, 2020, and next steps. SF Bay Water Board.
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Within Provision C.3.g.vi.(2)(b): (A) "The additional mitigation measures shall not include: reliance on… the presence of existing or future HM and LID controls located elsewhere within the catchment," is distinct from: (B) "The Technical Report may additionally propose alternative or supplemental methods of compliance with Provision C.3.g.iii. HM Standard, including any combination of: ...additional new HM controls located offsite within the same catchment as the receiving stream..." A) refers to hydromodification management controls that are outside the control of a project proponent and may be speculative or below the point of discharge to a receiving water body (e.g., a creek).
(B) refers to controls constructed concurrently and in combination with other controls specified in C.3.g.vi.(2)(b), as an alternative or supplemental method of compliance with the C.3.g.ii. HM Standard: "undersized onsite HM controls... and in-stream controls... which when implemented together achieve the C.3.g.iii HM Standard." Provision C.3.g.v. of MRP 1 required the City of Vallejo to complete a hydrograph modification management plan (HMP) by July 1, 2013, in lieu of complying with that order’s Provision C.3.g.i-iv. The City submitted its Final HMP on April 24, 2013,178 and the HMP was subsequently accepted by Board staff. The Final HMP incorporates the same requirements as for the Alameda, Santa Clara, and San Mateo Permittees. The Permit requires the City to comply with those requirements.
The Fairfield-Suisun Permittees are required to comply with the HM criteria established in this Permit. However, they have a threshold for control of erosive flows that is greater than the other Permittees: 20 percent of the 2-year peak flow. This criterion, which is greater than the criterion allowed for other Bay Area Stormwater Countywide Programs, is based on data collected from Laurel and Ledgewood Creeks and technical analyses of these site-specific data.
The Water Board recognizes that the collective knowledge of management of erosive flows and durations from new and redevelopment is evolving, and that the topics listed below are appropriate topics for further study. Such a study may be initiated by Water Board staff, or the Executive Officer may request that all Bay Region municipal stormwater Permittees jointly conduct investigations as appropriate. Any future proposed changes to the Permittees’ HM provisions may reflect improved understanding of these issues:
(1) Potential incremental costs, and benefits to waterways, from controlling a range of flows up to the 35- or 50-year peak flow, versus controlling up to the 10-year peak flow, as required by this Permit;
(2) The allowable low-flow (also called Qcp and currently specified as 10–20 percent of the pre-project 2-year runoff from the site) from HM controls; 178 City of Vallejo (Geosyntec), April 2013. Final Hydromodification Management Plan (HMP).
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(3) The effectiveness of self-retaining areas for management of post-project flows and durations; and/or
(4) The appropriate basis for determining cost-based impracticability of treating stormwater runoff and controlling excess runoff flows and durations. Provision C.3.g.i. defines the subset of Regulated Projects that must install hydromodification controls (HM controls). This subset, called HM Projects, are Regulated Projects that create and/or replace one acre or more of impervious surface and are not specifically excluded by the conditions expressed in C.3.g.i.(1)- (3). Those conditions identify areas where the potential for single-project and/or cumulative development hydromodification impacts to creeks is minimal, and thus HM controls are not required. Such areas include creeks that are concrete-lined or significantly hardened (e.g., with concrete) from point of discharge and continuously downstream to their outfall into San Francisco Bay; underground storm drains discharging to the Bay; and construction of infill projects in highly developed watersheds.179 The Alameda, Santa Clara, San Mateo, and Fairfield-Suisun Permittees have developed maps showing where HM controls are required (Attachment C).
This Provision requires Permittees that have not previously submitted an HM Applicability Map or equivalent information to prepare and submit that information, acceptable to the Executive Officer, consistent with the requirements of Provision C.3.g. This targets the Contra Costa Permittees, who submitted a HM Applicability Map180,181 with the 2017 Annual Report, which was not satisfactory because it included areas that were not yet resolved (whether or not projects in those areas would be HM Projects), and it claimed certain channels are not hardened, which are in fact hardened. This requirement is attached to the reporting requirement in Provision C.3.g.vi.(1), which requires submittal of new or revised HM Applicability Maps by no later than with the 2023 Annual Report.
Provision C.3.g.ii. establishes the standard HM controls that all HM Projects must meet. The HM Standard is based largely on the standards proposed by Permittees in their Hydrograph Modification Management Plans. The method for calculating post-project runoff in regards to HM controls is standard practice in Washington State and is equally applicable in California.
Provision C.3.g.iii. provides a procedure for the Permittees to propose an additional method for demonstrating compliance with HM requirements. This method would 179 Within the context of Provision C.3.g., “highly developed watersheds” refers to catchments or subcatchments that are 70 percent impervious or more. 180 Attachment 3.1 to 2017 CCCWP Annual Report: Hydromodification Applicability Mapping Methodology Technical Memorandum. September 11, 2017.
181 Attachment 3.2 to 2017 CCCWP Annual Report: Hydromodification Applicability Map. September 28, 2017.
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directly simulate erosion potential, and would be required to ensure that projects implementing HM controls with this method, if accepted by the Executive Officer, meet the Permit’s HM criteria. This provision requires submittal of appropriate analyses (with the 2023 Annual Report, pursuant to the reporting requirement in Provision C.3.g.vi.(2)) demonstrating that the method will substantively comply with HM requirements; it may not be implemented on projects until accepted by the Executive Officer.
Provision C.3.g.iv. identifies and defines three methods of hydromodification management.
Provision C.3.g.v. establishes the timeframes for meeting the HM Standard defined in Provision C.3.g.ii.
Provision C.3.g.vi. describes the information required to be collected and/or submitted in the Permittees’ Annual Reports regarding HM Projects. This Provision also describes specific required information for Contra Costa Permittees to submit with the 2023 Annual Report, which follows from the requirements in Provision C.3.g.i (HM Applicability Map) and in Provision C.3.g.iii (revised HM Technical Report).
Regarding the information to be submitted by the Contra Costa Permittees, Provision C.3.g.vi.(2)(b) includes two distinct criteria:
(A) "The additional mitigation measures shall not include: reliance on… the presence of existing or future HM and LID controls located elsewhere within the catchment which do or will satisfy other NPDES or CWA requirements," is distinct from:
(B) "The Technical Report may additionally propose alternative or supplemental methods of compliance with Provision C.3.g.iii. HM Standard, including any combination of: ...additional new HM controls located offsite within the same catchment as the receiving stream..."
That’s because (A) refers to existing and potential/future controls that have been (or that may or will be) implemented to satisfy other NPDES or CWA (e.g., mitigation required for 401 certification) requirements. For example, new bioretention cells that will be constructed for an anticipated or upcoming Regulated Project, or existing bioretention cells that were constructed several years ago for a Regulated Project, or potential bioretention cells that would be constructed if a potential Regulated Project becomes an actual Regulated Project at some point in the future.
On the other hand, (B) refers to controls constructed concurrently and in combination with other controls specified in Provision C.3.g.vi.(2)(b), as an alternative or supplemental method of compliance with the Provision C.3.g.ii.
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HM Standard: "undersized onsite HM controls... and in-stream controls... which when implemented together achieve the Provision C.3.g.iii HM Standard." This does not include taking credit for controls that are required for other NPDES or other CWA requirements; it’s referring to new controls that are implemented specifically to mitigate hydromodification impacts for a given HM Project, that are not double-counted.
Provision C.3.h. (Operation and Maintenance of Stormwater Treatment Systems) establishes permitting requirements to ensure that proper maintenance for the life of the Regulated Project is provided for all pervious pavement systems of 3,000 square feet or more; onsite, joint, and offsite stormwater treatment systems; and HM controls installed.
This Provision adds a requirement for Permittees to include pervious pavement systems of 3,000 square feet or more in their Operation and Maintenance Agreements, database of Regulated Projects, and inspection checklists. Pervious pavement systems serve as site design measures that directly reduce the amount of impervious surface area and therefore, the size of the stormwater treatment system(s) required to comply with Provision C.3.d. Adequate routine maintenance of pervious pavement systems is essential because clogged systems become impervious and may result in untreated stormwater runoff or additional load on stormwater treatment systems that result in inadequately treated stormwater runoff. To lessen the burden of inspecting so many pervious pavement systems, only those of 3,000 square feet or more are required to be inspected and patios for private-use at single-family homes, townhomes, or condominiums are specifically excluded. In the case of large subdivisions where the total pervious pavement system area is equal to or greater than 3,000 square feet, but the pervious pavement installations are on individual driveways that are less than 3,000 square feet, inspection of a representative number of driveways will suffice. Provision C.3.h.ii.(6). MRP 1 required Permittees to inspect at least 20 percent of all stormwater treatment systems annually, at least 20 percent of all vault-based systems annually, and every treatment system at least once every 5 years.
Permittees have indicated that each inspection of a Regulated Project routinely includes inspection of pervious pavement systems, stormwater treatment systems and HM controls installed at the Project. Therefore, this Provision requires the inspection frequency requirements such that the minimum number of inspections required annually is tied to a percentage of the total number of Regulated Projects, instead of the total number of individual treatment systems and HM controls. This lessens the tracking burden for the Permittees and better reflects the way actual inspections are conducted.
This Provision requires each Permittee to inspect all its Regulated Projects at least once every 5 years and inspect an average of 20 percent, but no less than 15 percent of the total number of Regulated Projects annually. This requirement serves to prevent failed or improperly maintained pervious pavement systems, stormwater treatment systems, or HM controls from going undetected until the 5th year. Neither Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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of these inspection frequency requirements interferes with the Permittees’ current ability to prioritize their inspections based on factors such as types of maintenance agreements, owner or contractor-maintained systems, maintenance history, past compliance problems at certain Projects, etc.
Provision C.3.h.ii.(6)(d) This Provision allows Permittees to accept third party inspection reports for vault-based stormwater treatment systems in lieu of conducting Permittee inspections, but only if the third party inspections are conducted at least annually, which is the normal frequency for maintenance of these systems. Each third party inspection must be included in the database or tabular format required in Provision C.3.h.ii.(4) and (5) and clearly identified as a third party inspection. Each third party inspection report must document the third party inspection company, date of inspection, condition of the treatment unit(s) at the time of inspection, maintenance activities performed, and appearance of the inside of the vault units (with photos) before and after maintenance. Provision C.3.h.ii.(7) As the number of Regulated Projects grows, the Permittees’ O&M inspection programs must grow as well. Therefore, this Provision requires each Permittee to develop and implement an Enforcement Response Plan (ERP) for O&M inspections. The ERP serves as a reference document for inspection staff so that consistent enforcement actions can be taken to bring development projects into compliance. This Provision establishes minimum requirements for the ERPs. One of these requirements is that corrective actions must be implemented within 30 days after a problem is identified by an inspector. Thirty days is more than adequate time, considering that many of the problems identified in past O&M inspection reports have been lack of maintenance service or build-up of sediment or debris. The correction of such deficiencies should not take more than 30 days. This Provision also allows for greater than 30 days to complete permanent corrective actions, such as installing additional curb cuts and making grading or vegetation improvements. Provision C.3.h.iv. This Provision requires Permittees to ensure that pervious pavement systems that total 3,000 square feet or more, stormwater treatment systems, and hydromodification controls are appropriately operated and maintained for the life of those systems and controls, which maintenance is necessary to ensure the systems and controls are operating effectively and protecting water quality consistent with their designs. It recognizes situations where maintenance may be delayed due to the need to obtain certain federal or state permits (e.g., special status species take authorization from a state or federal agency), and sets expectations regarding how Permittees should proceed. Specifically, Permittees should ensure a system’s or controls’ responsible party is working in good faith to obtain those authorizations. It directs Permittees to abide by the expectations set in the Water Board’s Resolution No. 94-102 for applicable systems, including the maintenance thereof.
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Provision C.3.h.v. As in MRP 1 and MRP 2, this Provision requires the Permittees to maintain a database or equivalent tabular format with detailed information on each O&M inspection and any necessary enforcement actions against Regulated Projects. To lessen the burden of reporting, this Provision only requires summary data on inspections conducted each fiscal year to be reported in the Annual Report, instead of detailed information on each O&M inspection. However, upon request by the Executive Officer, detailed information from the database or tabular format must be submitted.
Provision C.3.i. (Required Site Design Measures for Small Projects and Detached Single-Family Homes Projects) contains requirements for detached single-family home projects that create and/or replace 2,500 ft2 to <10,000 ft2 of impervious surface and small development and redevelopment projects that create and/or replace 2,500 ft2 to <5,000 ft2 of impervious surface (collectively over the entire project). A detached singlefamily home project is defined as the building of one single new house or the addition and/or replacement of impervious surface to one single existing house, which is not part of a larger plan of development. Projects with new or replaced impervious surface of this size transport storm water pollutants that can be controlled through basic site design measures.
This Provision requires these projects to select and implement one or more stormwater site design measures from a list of six. These site design measures are basic methods to reduce the amount and flowrate of stormwater runoff from projects and provide some pollutant removal treatment of the runoff that does leave the projects. Under this Provision, only projects that already require approvals and/or permits under the Permittees’ current planning, building, or other comparable authority are regulated.
Hence this Provision does not require Permittees to regulate small development and single-family home projects that would not otherwise be regulated under the Permittees’ current ordinances or authorities. Water Board staff recognizes that the stormwater runoff pollutant and volume contribution from each one of these projects may be small relative to other types of development and redevelopment projects; however, the cumulative impacts are likely to be significant. This Provision serves to address some of these cumulative impacts in a simple way that will not be too administratively burdensome on the Permittees.
Provision C.3.i.ii. Implementation Level directs the Permittees to implement Provision C.3.i beginning July 1, 2023.
Provision C.3.i.ii.(2) is as follows: Prior to July 1, 2023, it directs Permittees to implement Provision C.3.i in Attachment I, which are requirements from the Previous Permit. The rationale for these requirements is set forth in the Previous Permit's Fact Sheet and is incorporated herein. The purpose of this delayed implementation date for Provision C.3.i is to allow Permittees the time needed to arrange all relevant planning authorities and municipal processes, train their staff, etc., regarding changes made to Provision C.3.i relative to the Previous Permit.
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Provision C.3.j. (Green Infrastructure Planning and Implementation) MRP 2 required Permittees to complete and begin implementation of a Green Infrastructure Plan (GI Plan) for the inclusion of low impact development drainage design into storm drain infrastructure on public and private lands, including streets, roads, storm drains, parking lots, building roofs, and other storm drain infrastructure elements. In particular, green infrastructure sited in the public right of way that collects stormwater from adjacent tributary parcels can be a more efficient use of public and private resources than treatment of individual parcels, and can also result in additional treatment compared to parcel-based treatment.182 As such, Permittees have used green infrastructure approaches when siting treatment systems for Regulated Projects, such as for Provision C.3.e.i Alternative Compliance projects.
Public Law 115-436 Water Infrastructure Improvement Act approved on January 14, 2019, established section 402(s) of the CWA authorizing integrated plans that address both municipal wastewater and stormwater management as a potential compliance path that may be incorporated into an NPDES permit. Integrated planning is designed to help municipalities identify efficiencies in implementing requirements that arise from distinct permitting programs, particularly how best to make capital investments (Integrated Municipal Stormwater and Wastewater Planning Approach Framework, U.S. EPA, June 5, 2012). Under this law, an integrated plan can be used to implement any requirements relating to a combined sewer overflow, sanitary sewer collection system, municipal stormwater discharge, municipal wastewater discharge, and a water quality-based effluent limitation to implement an applicable wasteload allocation in a total maximum daily load. The integrated planning approach does not relax or change regulatory permitting standards, but rather recognizes existing flexibilities in the CWA to sequence and schedule compliance projects that may be relevant to multiple permitting programs (33 U.S.C. § 1342(s)(5).). Notably, Congress recognized the value of green infrastructure in meeting CWA requirements in allowing green infrastructure in integrated plans (Id. at subd. (s)(3)(b)(ii).). While this Order is not an integrated plan under CWA section 402(s), it shares the same principle of promoting integrated 182 For example, see:
WEF, Dec. 2, 2015. The Real Cost of Green Infrastructure. WEF Stormwater Report. Web. July 24, 2021.
McGlynn, Dec. 2019. Clock Ticking for Cities to Commit to Urban Greening. Estuary News, the San Francisco Estuary Partnership.
CCAG, January 2021. San Mateo Countywide Sustainable Streets Master Plan.
Clary et al., 2020. International Stormwater BMP Database: 2020 Summary Statistics. The Water Research Foundation.
Sustainable Business Network, May 2021. Green Stormwater Infrastructure (GSI): A Tool for Economic Recovery and Growth in Pennsylvania.
Sustainable Business Network, 2021. Excellence in GSI Awards, Philadelphia, PA.
Stutz, Bruce, March 29, 2018. With a Green Makeover, Philadelphia is Tackling Its Stormwater Problem.
Yale Environment 360.
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planning in meeting various regulatory requirements, especially with regard to green infrastructure.
The GI Plan is intended to serve as an implementation guide and reporting tool during this and subsequent Permit terms to provide reasonable assurance that urban runoff TMDL wasteload allocations (e.g., for the San Francisco Bay mercury and PCBs TMDLs) will be met, and to set goals for reducing, over the long term, the adverse water quality impacts of urbanization and urban runoff on receiving waters. For MRP 2, the development of the GI Plan was in lieu of expanding the definition of Regulated Projects prescribed in Provision C.3.b.ii to include all new and redevelopment projects that create or replace 5,000 square feet or more of impervious surface areas and road projects that just replace existing imperious surface area. However, this Permit includes (and subsequent Permits may further include) different impervious surface thresholds or other criteria for Regulated Projects. The GI Plan also provides a mechanism to establish and implement alternative or in lieu compliance options for Regulated Projects.
Over the long term, the GI Plan is intended to describe how the Permittees will shift their impervious surfaces and storm drain infrastructure from gray, or traditional storm drain infrastructure where runoff flows directly into the storm drain and then the receiving water, to green—that is, to a more-resilient, sustainable system that slows runoff by dispersing it to vegetated areas, harvests and uses runoff, promotes infiltration and evapotranspiration, and uses bioretention and other green infrastructure practices to clean stormwater runoff.
The GI Plan also identifies means and methods to prioritize particular areas and projects within each Permittee’s jurisdiction, at appropriate geographic and time scales, for implementation of green infrastructure projects. Further, it includes means and methods to track the area within each Permittee’s jurisdiction that is treated by green infrastructure controls and the amount of directly connected impervious area. As appropriate, it incorporates plans required elsewhere within this Permit, and specifically plans required for the monitoring of and to ensure appropriate reductions in trash and PCBs, mercury, and other pollutants. Permittees may comply with the requirements of this Provision through collaborative efforts.
MRP 2 specified minimum elements that each GI Plan must contain to ensure that each GI Plan is robust and appropriately identifies the means and methods that each Permittee will employ to implement green infrastructure over time. These minimum elements are not overly prescriptive, so as to allow Permittees flexibility in developing their GI Plans. They are repeated here, to guide the Permittees’ ongoing updates and addenda to their Plans as prescribed by Provision C.3.j.ii.(1):
(1) A mechanism to prioritize and map areas for potential and planned projects, both public and private, on a drainage-area specific basis. Implementation of these projects is required to be projected over the same timeframes as specified Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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in Provisions C.11. and C.12. for assessing mercury and PCB load reductions because green infrastructure and projects are an acknowledged means of pollutant load reductions. Each Permittee has flexibility in choosing the mechanism as long as it includes criteria for prioritization and outputs that can be incorporated into its long-term planning and capital improvement processes. (2) Targets for the amount of impervious surface, from public and private projects, within the Permittee’s jurisdiction to be retrofitted over the same timeframes as specified in Provisions C.11. and C.12. for assessing mercury and PCB load reductions. These self-determined targets represent the green infrastructure work that each Permittee has proactively identified will be completed beyond what would be completed in its community anyway.
(3) A process for tracking and mapping completed projects, public and private, and making the information publicly available. Again, each Permittee has flexibility in what they use to comply with this Provision.
(4) General guidelines and standard specifications for overall streetscape and project design and construction to ensure that projects have a unified, complete design that implements the range of functions associated with the projects.
These guidelines and standard specifications, while crucial to a Green Infrastructure Plan, already exist in many reference documents for green infrastructure design and are readily available.
(5) Requirement(s) that projects be designed to meet the treatment and hydromodification sizing requirements in Provisions C.3.c. and C.3.d. In recognition of space and drainage constraints that may occur for public green infrastructure road projects not subject to Provision C.3.b.ii (i.e., non-Regulated Projects), this Provision allows Permittees to collectively propose a single approach for how to proceed should project constraints preclude fully meeting the C.3.d. sizing requirements. The single approach can include different options to address specific issues, constraints, or scenarios.
(6) A summary of the planning documents the Permittee has updated or otherwise modified as well as how the Permittee will ensure that green infrastructure requirements will be included in future plans. The purpose of this element is to show that each Permittee is considering green infrastructure in all aspects of its urban planning.
(7) A workplan to complete prioritized projects identified as part of a Provision C.3.e Alternative Compliance program or part of Provision C.3.j Early Implementation. (8) An evaluation of prioritized project funding options, including, but not limited to:
Alternative Compliance funds; grant monies, including transportation project grants from federal, state, and local agencies; existing Permittee resources; new tax or other levies; and other sources of funds.
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In addition to the development of the GI Plans, MRP 2 required each Permittee to:
(1) Prepare a framework or workplan that describes specific tasks and timeframes for developing its GI Plan. The framework or workplan was required to be approved by each Permittee’s governing body, mayor, city manager, or county manager by June 30, 2017. This approval process provided assurance to the Water Board that Permittees are committed to the development and implementation of the GI Plan and green infrastructure. (2) Document in its 2017 Annual Report that the framework or workplan for development of its GI Plan was approved by June 30, 2017, as required by Provision C.3.j.i.(1) of MRP 2. This Provision also required each Permittee to submit its GI Plan and documentation of the legal mechanisms to implement the GI Plan with the 2019 Annual Report.
(3) Prepare and maintain a list of green infrastructure projects, public and private, that are already planned for implementation during the permit term and infrastructure projects planned for implementation that have potential for green infrastructure measures.
The Permittees were required to submit the list with each Annual Report along with a summary of planning or implementation status for each public green infrastructure project and each private green infrastructure project that is not also a Regulated Project under Provision C.3.b.ii. This Provision also required each Permittee to include a summary of how each public infrastructure project with green infrastructure potential will include green infrastructure measures to the maximum extent practicable during the permit term. For any public infrastructure project where implementation of green infrastructure measures is not practicable, the Permittee was required to submit a brief description of the project and the reasons green infrastructure measures were impracticable to implement.
The purpose was to ensure that each Permittee is proactively developing green infrastructure projects and including green infrastructure elements into already planned infrastructure projects as much as possible, both while the GI Plan was being developed, and subsequent to its development.
This requirement is retained in the Permit, in Provision C.3.j.iii, No Missed Opportunities.
(4) Individually or collectively, to track processes, assemble and submit information, and provide information, materials, and presentations as needed to assist relevant regional, state, and federal agencies to plan, design, and fund green infrastructure measures in local infrastructure projects, including public transportation projects.
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(5) Individually or collectively, to develop and implement regionally consistent methods to track and report implementation of green infrastructure measures including treated area and connected and disconnected impervious area on both public and private parcels within their jurisdictions. The methods shall also address tracking needed to provide reasonable assurance that wasteload allocations for TMDLs, including the San Francisco Bay PCBs and mercury TMDLs, and reductions for trash, are being met.
The GI Plans were completed during MRP 2; therefore, the focus of Provision C.3.j in the Permit shifts from planning to implementation. U.S. EPA supports the Permit’s movement from planning to implementation of green infrastructure on a more regional basis.183 Provision C.3.j.i. Task Description requires the Permittees to (continue to) implement their GI Plans, as may be updated and supplemented to comply with this Order.
Provision C.3.j.ii Implementation Level, prescribes programmatic requirements, numeric requirements, and design criteria that Permittees must comply with when implementing their GI Plans during the Current Permit Term.
Provision C.3.j.ii.(1) describes the Programmatic Implementation requirements requiring Permittees to update and supplement their GI Plans to ensure that municipal processes and ordinances allow and appropriately encourage implementation of green infrastructure, and incorporate lessons learned, by:
(1) Revising the implementation mechanisms in the GI Plans to include consideration or reconsideration of cooperation with non-municipal entities such as schools on green infrastructure implementation, and otherwise updating implementation mechanisms as appropriate.
This is necessary because Permittees may need to update their implementation mechanisms as certain processes are refined or adapted to better support green infrastructure implementation. Cooperation with non-municipal entities like school districts is required to be considered or reconsidered because schools can offer excellent opportunities for green infrastructure implementation for a number of reasons, including their likely coverage under the California Small MS4 General Permit, which is expected to clarify the clean water role they can play going forward; their role in climate change adaptation planning efforts; their often substantial impervious surface coverage; and the ability of municipalities to 183 U.S. EPA provides many resources at a national level that document the multiple benefits that green infrastructure can have on water quality and community well-being: https://www.epa.gov/greeninfrastructure/benefits-green-infrastructure Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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regulate discharges from schools into their MS4s.184 Often, schools have some of the most-available area for green infrastructure implementation, along with budget needs that can facilitate cooperation when municipalities or others contribute sources of funding. Because of the opportunities for implementation, funding, and shared need, GI Plans should be revised to include, in their prioritization approaches, green infrastructure projects that may be implemented in a joint or cooperative manner, including not only those coordinated with schools, but also those coordinated with Bay Area Rapid Transit (BART), Caltrans, and others as appropriate.
(2) Following through with the development or updates of general plans, specific plans, urban forestry plans, climate change adaptation plans, complete streets plans and other planning documents with a green infrastructure nexus to include language which is more supportive of green infrastructure implementation, as identified by the Permittees in their GI Plans. Upon request by Water Board staff, Permittees are required to provide justifications for planning documents that they assert do not need to be updated to further support green infrastructure implementation.
This is necessary because not all Permittees sufficiently updated their planning documents as required in the Previous Permit term to demonstrate that they are considering green infrastructure in all aspects of urban planning. In many cases, it was unclear how the planning documents supported green infrastructure implementation. Water Board staff’s complete review of the GI Plans, which provides guidance on this and other facets of Provision C.3.j.ii.(1), is detailed in an October 2020 memo.185
GI Plans that identify overarching policy or planning documents are worthwhile for other Permittees to consider. For example, San Mateo County references the City/County Association of Governments of San Mateo County’s (C/CAG’s) Sustainable Streets Master Plan, which prioritizes locations to integrate green infrastructure into street rights of way and considers how those projects may contribute to climate change resilience. This opportunity to more legibly consider and coordinate the multiple benefits of green infrastructure could facilitate implementation over time.
Several GI Plans reference specific plans, neighborhood plans, street master plans, or similar documents, which can allow municipalities to focus their green infrastructure implementation in an intentional and targeted manner. Examples 184 For example, L.A. Unified School District: Storm Water Management and Low Impact Development. http://learninggreen.laschools.org/stormwater-management.html. Accessed July 26, 2021.
Sharon Danks, A vision for green schoolyards across California. Green Technology Magazine, Web. accessed July 26, 2021. https://www.green-technology.org/magazinenews/a-vision-for-greenschoolyards-across-california/ 185 Water Board Staff’s Review of the 2019 Green Infrastructure Plans. October 1, 2020.
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include the City of El Cerrito’s 2014 San Pablo Avenue Specific Plan, which, among other things, charges private development with impact fees to fund frontage improvements on San Pablo Avenue, and the City of Berkeley’s 2019 Adeline Corridor Specific Plan, which has identified several promising green infrastructure opportunities. Master planning efforts like those framed in specific plans have long been tools for effective green infrastructure implementation.
More than twenty years ago, Fremont’s plan for the 840-acre Pacific Commons site enabled comprehensive district-scale stormwater planning and expectation setting in advance of development of parcels within the district. The Water Board supports the use of specific plans and related plans to facilitate green infrastructure implementation, and as part of a range of green infrastructure implementation tools that should be applied throughout Permittee jurisdictions.
The expectation of this Provision is that Permittees continue to update existing plans to include, as appropriate, and to incorporate into new plans, low impact development and green infrastructure expectations, including implementation.
Similar to El Cerrito’s and Berkeley’s approaches, Permittees’ updated and new specific plans and similar documents should incorporate green infrastructure requirements for the plan areas. For example, the City of Campbell’s GI Plan noted several neighborhood and street master plans that could be updated to incorporate and coordinate green infrastructure expectations, and referenced development by this year of a schedule to complete those updates. That was similar to other municipality plans in western Santa Clara County, and is a reasonable model for addressing updates during the Permit term. (3) Developing funding and funding mechanisms identified in the GI Plans, such as by working with the relevant agencies to expand the scope of transportation grants to include allocation for green infrastructure; establishing green infrastructure-based or green infrastructure-incorporating stormwater fees, including work that sets the foundation for additional future stormwater fees; establishing or increasing application review fees, and evaluating other opportunities to leverage municipal approval of private development to fund green infrastructure implementation.
The most common existing funding sources identified in the GI Plans are State grants and internal revenues. Many GI Plans commit to incorporating consideration of green infrastructure into the Permittees’ Capital Improvement Plans (CIP) so that green infrastructure funding may be tied to CIP projects where incorporation of green infrastructure has been identified as otherwise feasible. Given existing funding constraints, most Permittees are prioritizing maintenance of existing infrastructure over addressing pollutant discharges (from yet-untreated impervious surfaces) with clean water controls.
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programs, Prop. 218- and SB 231-compliant stormwater utility fees, and permit fees. A few GI Plans describe existing stormwater utility fees enacted prior to Prop. 218, and others note how these fees are currently being pursued.
Oakland’s GI Plan includes a useful summary letter (App. F, Oakland 100RC Stormwater Program Financing Memo) that describes a range of available funding opportunities, in addition to citing BASMAA’s 2018 Roadmap of Funding Solutions for Sustainable Streets.186 Nearly every GI Plan that expressed hesitance in pursuing such fees now stresses 1) the risk associated with legal challenges, and 2) the need to wait for another Permittee to be the legal test subject for this approach.
Permittees such as the Cities of San Mateo and Redwood City are leading the way by more fully recognizing the extent of development project urban runoff impacts and requiring developers to fund green infrastructure that is either beyond the Permit’s minimum requirements or based on a reinterpretation of the Permit’s requirements as a condition of approval.
During the Permit term, Permittees with regulated projects should evaluate opportunities to pursue approaches similar to those being implemented by the Cities of San Mateo and Redwood City.
Funding approaches that the Water Board did not see broadly considered in the GI Plans include: impervious surface fees targeting all impervious surface, including single- and multi-family residential parcels, tied to the operation and maintenance of the storm drain system; and maintaining or increasing development application review and post-construction green infrastructure operation and maintenance inspection fees to a level sufficient to allow for a self-sustaining program. The Water Board welcomes opportunities to discuss and support Permittees’ funding approaches.
There are some interesting countywide proposals unique to certain counties. For example, the GI Plans for Permittees within Contra Costa County include a discussion of legislative constraints to the use of Contra Costa Transportation Authority Sales Tax Revenue for green infrastructure implementation, and of pursuing a ruling from MTC on the Highway User Gas Tax Account. The GI Plans for Permittees within San Mateo County include a discussion of the planned Flood and Sea Level Rise Resiliency Agency, which would help fund regional green infrastructure projects. The Water Board looks forward to working with the Permittees to support these and any other new or similar countywide efforts. Most GI Plans also, appropriately, reference BASMAA’s 2018 Roadmap of Funding Solutions for Sustainable Streets.186
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(4) Reviewing countywide green infrastructure implementation guidance documents and adapting them as necessary to account for local considerations if this has not already been completed during the Previous Permit term, and otherwise reviewing and updating general guidelines and standard specifications as appropriate.
The primary goal of this requirement is to ensure that there are no barriers to green infrastructure implementation based on the availability and status of guidance documents and standard specifications and details during the Permit term. In addition, some Permittees did not demonstrate that they adapted guidance documents to local considerations in the Previous Permit.185 (5) Continuing to implement the tools developed during the Previous Permit to track and map completed public and private green infrastructure projects, and making the information publicly available.
Nearly all GI Plans reference tracking tools currently in development by the County stormwater programs, with a statement that the tools include or will include components to make certain information publicly available. However, some GI Plans suggest that green infrastructure implementation information submitted in tabular format in Annual Reports satisfies this subprovision. It does not. The tools in development generally appear appropriate to meet this Provision, but additional information is needed as discussed below. Each GI Plan that references a County stormwater program’s tracking tool, many of which are based on ArcGIS online or AGOL, and a few of which utilize GreenPlan-IT, appropriately commits to contributing data to it once the tool is ready, and many GI Plans discuss local tracking tools that will likely be discontinued once the County tracking tools are ready. However, most GI Plans do not say when the respective County tracking tool will be completed, or whether or how the tools will be available to the public, and if yes, what information will be made available. Some GI Plans say only that the tools have or will have mapping capabilities accessible at least by Permittee staff, but not necessarily by the public. Some plans say that “non-regulated project installations of green infrastructure are tracked as feasible in the same manner as regulated projects.”
The requirements for the tracking tool during the Current Permit term are further specified in Provision C.3.j.v. (see below).
(6) Continuing to adopt or amend policies, ordinances, and/or other appropriate legal mechanisms to ensure implementation of the Plan in accordance with the requirements of this Provision, as necessary.
This requirement ensures implementation of green infrastructure and is based on the need to reduce the discharge of pollutants in storm water in a more resilient, sustainable way as described above.
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(7) Continuing to conduct outreach and education.
Education and outreach, both internally and externally, are important to realizing green infrastructure projects to reduce the discharge of pollutants in storm water.
Provision C.3.j.ii.(2) describes the Numeric Implementation requirements, which are summarized below followed by a rationale for the requirements:
(1) By June 30, 2027, the Permittees are required to implement, or cause to be implemented, green infrastructure retrofit projects within their jurisdictions in the acreages set forth in Table H-1 of Attachment H. The retrofit acreages cannot encompass Regulated Projects under Provision C.3.b.
For Table H-1 of Attachment H, Permittees were assigned three acres of nonRegulated Project impervious surface retrofit per 50,000 population using the 2019 U.S. Census Bureau Population Estimate, prorated, with a minimum requirement of 0.2 acres and a maximum requirement of five acres. That retrofit expectation, to be accomplished during the Permit term as described in Provision C.3.j.ii, is far below the ultimate need for retrofit in the Permittees’ jurisdictions, considering drivers such as the need to accomplish TMDL wasteload allocations and to reduce the discharge generally of urban runoff pollutants through the MS4. However, the retrofit requirement ensures each Permittee builds capacity by completing or meaningfully participating in at least one project. Permittees are expected to use their GI Plans to help inform the selection of retrofit projects. In addition, the retrofit requirement uses population as a rough proxy for Permittee capacity to complete retrofit work. In combination with the acreage maximum of five acres, the retrofit requirement is intended to be a flexible and doable goal during this Permit term. The minimum retrofit requirement ensures that each Permittee uses that experience to build its institutional capacity for implementing green infrastructure within its jurisdiction.
The maximum retrofit requirement reduces the retrofit requirements only for a handful of the larger Permittees, one of which (the City of San Jose) will likely exceed five acres of non-Regulated Project retrofit in any case because of its consent decree with San Francisco Baykeeper, as discussed in the subsequent paragraph. These retrofit assignments, when summed regionally for the Permittees will result in about 217 acres of non-Regulated Project impervious surface retrofitted by the expiration date of the Permit, which will make a significant incremental step towards addressing the otherwise unaddressed adverse stormwater quality impacts of Permittee’s rights of way, particularly those smaller public streets projects that are not otherwise subject to the same clean water controls as Provision C.3.b. Regulated Projects. (2) The retrofit acreages are required to address pollutants discharges from MS4s because the Permittees have substantial areas of impervious surface— Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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comprised in large part of their existing public roads and parking areas—that discharge urban runoff pollutants to the MS4, but on which projects are not being completed that fall into Regulated Project categories. As such, they are unlikely to be retrofitted with clean water controls and will continue to discharge urban runoff pollutants in the absence of a retrofit requirement. Regulated Projects addressed in Provision C.3.b are only a fraction of the thousands of acres of impervious surfaces in the area covered by this Order. All impervious surfaces contribute pollutants to stormwater runoff, with those in higher density land uses contributing more pollutants. Accordingly, in order to reduce the discharge of storm water pollutants from MS4s to the maximum extent practicable and help attain TMDL wasteload allocations, additional impervious surface areas must be addressed beyond the Regulated Projects. As explained below, other jurisdictions in the State of California and elsewhere in the United States have MS4 NPDES Permits with similar non-Regulated Project numeric retrofits requirements that supplement their retrofit requirements for Regulated Projects.
(3) Pursuant to its consent decree with San Francisco Baykeeper (effective August 11, 2016),187 and through projected rates of public and private development and redevelopment, as reported in its GI Plan,188 the City of San Jose is required to appropriate $100 million over the next ten years, subject to meet and confer and other terms of the consent decree, to implement the projects in its Green Stormwater Infrastructure Plan. The Green Stormwater Infrastructure Plan forecasts retrofit of roughly 1750 acres of impervious surface between 2020 and 2030, and roughly an additional 8,500 acres of impervious surface between 2030 and 2040, much of which will necessarily be comprised of non-Regulated Projects. Therefore, San Jose alone is likely to satisfy 100 percent of the Santa Clara County Permittees’ Provision C.3.j.ii.(2) Numeric Implementation retrofit requirement (other than the minimum 0.2 acres required for each Permittee). (4) The San Mateo County Permittees’ Orange Memorial Park Regional Project is located in the City of South San Francisco, and will address runoff from over 6,500 acres of land from six neighboring jurisdictions: portions of the City of Colma, the City of Daly City, the City of Pacifica, South San Francisco, Caltrans ROW, and Unincorporated San Mateo County.189 This regional project may satisfy a portion of the San Mateo County Permittees’ Provision C.3.j.ii.(2) Numeric Implementation retrofit requirements, depending on the outcome of 187 https://baykeeper.org/sites/default/files/press_release/BaykeeperSan%20Jose%20Stormwater%20suit%20settlement%20agreement.pdf 188 https://www.sanjoseca.gov/your-government/environment/our-creeks-rivers-bay/green-infrastructure 189 https://www.ssf.net/departments/public-works/engineering-division/capital-improvementprogram/orange-memorial-park-regional-storm-water-capture-project Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Provision C.3.c.i.(2)(c)(ii).a. (e.g., if it results in a Permit amendment allowing the crediting of certain alternative treatment systems).
(5) A study in Washington State found that imperviousness could serve as a proxy for aquatic system health.190 It found that ten percent impervious area was a threshold at or above which there was demonstrable, and probably irreversible, loss of aquatic system function, reflected by measured changes in channel morphology, fish and amphibian populations, vegetation succession, and water chemistry. Even lower levels of urban development were observed to cause significant degradation in sensitive waterbodies and a reduced, but less well quantified, degree of loss throughout the system as a whole. This suggests that successful corrective measures must not simply protect or restore the structure of individual stream or wetland elements; buffers around waterbodies must be combined with watershed-level restrictions on the rate and duration of stormwater discharge, as loss of instream fish habitat cannot be repaired by instream engineered structures alone. The study did not establish an imperviousness threshold for degradation of San Francisco Bay Area streams.
However, in finding significant degradation of waters in Washington State at levels of imperviousness that are well below those of many Bay Area watersheds, the study suggested that there is a need for substantial reductions over time from current levels of directly connected impervious surface. This adds support for the Permit’s requirements to implement measures to control discharges from both existing and new impervious surfaces, including public roads.
Many Permittees’ jurisdictions have untreated impervious area cover that is substantially larger than ten percent. The Permittees’ GI Plans’ projected retrofit by Regulated Projects and non-Regulated Projects by 2020 (the existing condition), 2030, and 2040, demonstrate that this amount is expected to continue during this and future Permit terms. Therefore, the requirements included in Provision C.3.j.ii.(2) are intended to increase the pace at which Permittees address the pollutant loading and hydromodification impacts from their impervious surfaces.
(6) The Permittees’ existing commitments for green infrastructure implementation in GI Plans are insufficient to address the problem associated with impervious surfaces. With few exceptions, the GI Plans do not commit to accelerate the existing rate of green infrastructure implementation, or to retrofit existing impervious surfaces (particularly, in the public right of way), with clean water controls to address urban runoff discharges, beyond what MRP 2 already required for Regulated Projects using an LID approach. Consequently, the GI 190 Consequences of Urbanization on Aquatic Systems – Measured Effects, Degradation Thresholds, and Corrective Strategies. Derek B. Booth and Lorin E. Reinelt. King County Surface Water Management Division, Seattle, WA. 1993.
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Plans are limited in the extent to which they would reduce the adverse water quality impacts of urban runoff on receiving waters over time.
For example, one Permittee’s Capital Improvement Plan indicates consideration of numerous projects with potential for green infrastructure implementation, including miles of street projects, but its GI Plan sets a retrofit target of only 0.8 acres of public impervious surface by 2040, for both Regulated and nonRegulated public projects. Another Permittee’s GI Plan sets a retrofit target of only one acre of public impervious surface by 2040.
These outcomes represent a missed opportunity, in that the Previous Permit’s green infrastructure planning requirement was included as an alternative to expanding the Regulated Project definitions to include all new and redevelopment projects that create or replace 5,000 square feet of impervious surface, and road projects that just replace existing impervious surface area.
That is, in the Previous Permit, green infrastructure planning was included in part to provide municipalities the opportunity to evaluate and account for smaller area regulated projects and road replacement projects as part of their GI Plans, and develop commitments to implementation that would be more efficient and effective for them than a Permit requirement to include all such projects. (7) Many GI Plans do include some public projects in their green infrastructure retrofit targets, but among those public projects, most are Regulated Projects.
One GI Plan, the City of San Jose’s, includes substantial public non-Regulated Project green infrastructure implementation, but as described previously, that is largely an outcome of San Jose’s 2016 consent decree with the San Francisco Baykeeper, demonstrating that municipal commitment of funding to green infrastructure retrofit has the potential to result in substantial implementation.
Overall, the contribution to the retrofits targets presented in the GI Plans by nonRegulated (public) Projects is small relative to the contribution by Regulated (private) Projects.
(8) When the green infrastructure retrofit targets as presented in the GI Plans are summed and considered against estimates of county and regional impervious surface cover, the resulting data describes the relative retrofit that is projected to take place through 2040 at the regional scale. According to the GI Plans, based on the Regulated Project definitions from the Previous Permit and without the numeric implementation requirements included in this Provision in the Permit, for private and public, Regulated and non-Regulated, parcel based, green streets and regional projects, the projected retrofits by 2020, 2030, and 2040 by county stormwater programs are summarized in Table A-4:
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Table A-4. GI Plan-estimated retrofit
Permittees 2020 2030 2040
Alameda 2% 3% 3%
Contra Costa 1% 2% 3%
San Mateo 1% 2% 4%
Santa Clara 2% 5% 12%
Solano 6% 8% 10%
Total 2% 4% 6%
GI Plan Long-Term Retrofit. The numbers in each County’s row in this table have the respective County’s total impervious surface as a denominator, based on the NLCD 2016 Developed Imperviousness Descriptor (CONUS).191 The numbers in the final row of this table, Total, has the five Counties’ total impervious surface as a denominator; since these numbers are percentages of the total five-County impervious surface, they do not sum the above columns.
This shows that despite the opportunity given to flexibly capture smaller projects in GI Plans in lieu of a numeric permit requirement in MRP 2, the Permittees have not committed to accelerating the existing rate of green stormwater infrastructure implementation, or to retrofit existing impervious surfaces with clean water controls to address urban runoff pollutant discharges from existing impervious surfaces, beyond what MRP 2 already required for Regulated Projects.
(9) The inclusion of numeric retrofit acreages is consistent with other relevant NPDES Stormwater Permits, which include similar non-Regulated Project numeric retrofits requirements that supplement their retrofit requirements for Regulated Projects.
The City of Portland’s MS4 NPDES Discharge Permit (effective January 31, 2011)132 requires each co-permittee to implement one non-regulated public rightof-way project before the end of the permit term. Analogous requirements for the completion of at least one public retrofit project are included in the City of Salem’s NPDES MS4 Discharge Permit (effective December 30, 2010)137 and the City of Eugene’s NPDES MS4 Discharge Permit (effective December 30, 2010).141
The State of Washington’s NPDES and State Waste Discharge General Permit for Discharges from Large and Medium MS4s (effective August 1, 2019)134 requires Permittees to achieve 300 Structural Stormwater Control (SSC) 191 https://www.mrlc.gov/data
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Program Points (225 points from projects in the design stage and 75 points from completed projects) by the third year of the permit term. Appendix 12192 of that permit provides instructions regarding which types of projects are qualifying, and regarding how to calculate the SSC Program Points that those projects are worth (starting with Table 3 of Appendix 12).
The points system offers a flexible approach to retrofit. It requires implementation of retrofit actions that are beyond work that would otherwise be required under that permit. However, it allows implementation of a range of actions to protect and improve water quality, such as new LID BMPs, retrofit of existing controls to expand capacity, permanent removal of impervious surfaces, and landscape restoration to reduce hydromodification impacts.
Similar to the State of Washington’s NPDES and State Waste Discharge General Permit for Discharges from Large and Medium MS4s,134 in U.S. EPA’s Draft NPDES Stormwater Permit for the City of Tacoma’s MS4,193 the permittee is required to implement a Structural Stormwater Controls Program to prevent or reduce impacts to receiving waters caused by discharges from the MS4 that are not adequately controlled by other existing actions required by the permittee’s Stormwater Management Program (SWMP) Plan;194 towards that end the permittee’s SWMP Plan requires it to achieve 300 SSC Program Points by December 31, 2022, to address impacts that are not adequately controlled by the other required actions of the SWMP Plan. Structural stormwater control program points are calculated per Appendix 12192 of the State of Washington’s NPDES and State Waste Discharge General Permit for Discharges from Large and Medium MS4s.134
Likewise, in U.S. EPA’s Draft NPDES Stormwater Permit for Pierce County’s MS4,195 the permittee is required to implement a Structural Stormwater Controls Program to prevent or reduce impacts to receiving waters caused by discharges from the MS4 that are not adequately controlled by other existing actions required by the permittee’s Stormwater Management Program (SWMP) Plan;196 towards that end the permittee’s SWMP Plan requires it to achieve 300 SSC Program Points by December 31, 2022 (225 design-stage retrofit incentive 192 Accessed on July 30, 2021, from:
https://apps.ecology.wa.gov/paris/DownloadDocument.aspx?id=279051 193 U.S. EPA NPDES Permit No. WAS026689, accessed on July 30, 2021, from:
https://www.epa.gov/npdes-permits/draft-npdes-stormwater-permit-city-tacoma-ms4-washington 194 City of Tacoma, Stormwater Management Program (SWMP) Plan, March 2021. Accessed on July 30, 2021, from:
https://www.cityoftacoma.org/UserFiles/Servers/Server_6/File/cms/Surfacewater/SWMPUpdates/Final%2 0Draft%20SWMP%20Update_2021.pdf
195 https://www.epa.gov/npdes-permits/proposed-stormwater-permit-pierce-county-ms4 196 Pierce County, Stormwater Management Program Plan, 2020. Accessed on July 30, 2021, from:
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points; 75 complete or maintenance stage incentive points), to address impacts that are not adequately controlled by the other required actions of the SWMP Plan. Structural stormwater control program points are calculated per Appendix 12192 of the State of Washington’s NPDES and State Waste Discharge General Permit for Discharges from Large and Medium MS4s.134
The State of Maryland’s NPDES General Permit for Discharges from Small MS4s (effective October 31, 2018)143 makes progress towards the nutrient and sediment load reductions required to address the Chesapeake Bay TMDL, as specified in Maryland’s Watershed Implementation Plan, by requiring its permittees to commence restoration efforts for twenty percent of existing developed lands that have little or no stormwater management by 2025, such as by requiring its permittees to perform watershed assessments, identify water quality improvement opportunities, secure appropriate funding, and develop an implementation schedule to show the twenty percent impervious area restoration requirement will be achieved by 2025. Such restoration efforts may include the use of environmental site design practices, structural stormwater BMPs, retrofitting, stream restoration, or other alternative restoration practices. The actions taken by those Maryland permittees to address the Chesapeake Bay TMDL are similar in nature to actions the Permittees could take to achieve wasteload allocations for pollutants including mercury and PCBs. Though it is likely that the Permittees will implement actions similar to those in Maryland because they are reasonable and cost effective given the suite of available options, they have alternative options, such as diversion to the sanitary sewer.
Driven by Chesapeake Bay and Anacostia River TMDLs, the 2010 MS4 permit issued to Montgomery County by the State of Maryland required the County to retrofit 20 percent (4,292 acres) of its “older, untreated, or poorly-treated impervious surfaces by 2015.”197,198 Those retrofits may consist of the use of environmental site design and other nonstructural techniques, structural stormwater practice retrofitting, and stream channel restoration. The permit’s retrofit requirement was primarily a TMDL-driven goal. Provision C.3.j.ii.(2)’s retrofit requirement is based both on reducing pollutants to the MEP and achieving the Hg and PCBs TMDL WLAs (see, e.g., Provisions C.11.e and C.12.f). Montgomery County’s permit indicates a level of retrofit effort that exists elsewhere, which is far above what Provision C.3.j cumulatively requires (216.92 acres) for multiple jurisdictions.
U.S. EPA’s NPDES Permit for Washington, D.C. (effective June 22, 2018)142 requires the permittee – in order to achieve pollutant reductions, demonstrate progress toward achieving applicable TMDL WLAs by achieving a collective 197 https://www.montgomerycountymd.gov/water/stormwater/ms4.html 198 Cameron, et al., 2011. Green Stormwater Retrofits: Objectives and Costing. In Low Impact Development Technology: Design Methods and Case Studies, ASCE, Clar et al., eds.
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reduction in all TMDL pollutants of concern in stormwater other than trash per the permit’s retention requirements, and meeting other water quality objectives – to implement a total of 1,038 new Acres Managed by the end of the Permit term beyond the existing Acres Managed at the time of the Permit effective date, divided between three major basins, of which at least 62 acres must be located in public rights of way. One “Acre Managed” is one acre of land treated by stormwater control measures to the applicable standard established in the permittee’s stormwater regulations or consistent with the relevant voluntary program. Further explanation of this concept is provided in the Washington, D.C., NPDES MS4 Permit. For example, a development project required to meet the 1.2 inch retention standard for development and redevelopment greater than or equal to 5,000 square feet, which will implement 1.2 inches of retention across five acres through any combination of onsite and/or offsite retention controls, is equivalent to five “Acres Managed.” The permittee is also required to install 350,000 square feet of new green roofs by the end of the permit term, and plant 6,705 trees annually during the permit term. Like the Montgomery County permit, the Washington D.C. permit also indicates a level of retrofit effort that exists elsewhere, which is far above what Provision C.3.j cumulatively requires (216.92 acres) for multiple jurisdictions.
Provision C.3.j.ii.(2)(b)-(c) allows Permittees to meet the retrofit requirements in Table H-1 of Attachment H on a countywide basis or outside their jurisdictions, but requires them provide no less than 0.20 acres of green infrastructure within their jurisdictions, or contribute substantially to such a green infrastructure project outside of their jurisdictions (but within their County). A substantial contribution could mean that Permittees are providing a significant portion of project funding, including in-kind funding or staff services such as development of designs, provision of land, or contracting for project implementation.
This affords Permittees flexibility in meeting the retrofit acreages, and ensures that a minimum amount of green infrastructure is implemented in the Permittees’ jurisdictions to address storm water pollutants. It also ensures that Permittees build the institutional capacity necessary to implement green infrastructure projects within their jurisdictions. There is also a requirement to ensure that countywide total retrofit acreages are met.
Provision C.3.j.ii.(2)(d) allows non-Regulated Projects and green infrastructure beyond the minimum required by Provision C.3.d for a Regulated Project to be counted towards the numeric requirements in Table H-1 of Attachment H. If any portion of such projects is later used as a part of an Alternative Compliance exchange to offset the treatment required by a Regulated Project pursuant to Provision C.3.e.i, then that portion may no longer be counted towards the retrofit acreage requirements in Table H-1 of Attachment H. This allows Permittees to benefit from requiring more than the minimum requirements to achieve cleaner storm water.
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Provision C.3.j.ii.(2)(e)-(f) provides the timeframe for counting projects for the acreage requirements in Table H-1. Including projects completed after January 1, 2021, accounts for and encourages early green infrastructure projects completed by Permittees. June 30, 2027, is used as the end of the timeframe because that is when the Permit expires. For project not yet completed by this date, funding them by this date provides the necessary assurance of their completion; in the subsequent permit term, the Water Board may consider requiring such projects to be completed by the end of that permit term.
Provision C.3.j.ii.(2)(g) explains that Numeric Implementation pursuant to Provision C.3.j.ii.(2) can be counted towards analogous Provision C.12 numeric implementation retrofit requirements for old industrial areas, as long as they satisfy other aspects of the Provision C.12 requirement. This ensures that the Permittees get credit for work done under Provision C.3.j.
Provision C.3.j.ii.(2)(h) allows Permittees to credit the acreage of impervious surface created or replaced as part of Provision C.3.b.ii.(5) Road Reconstruction Projects to count towards the Provision C.3.j.ii.(2) Numeric Implementation retrofit requirements. This allowance is temporary, for this Permit term, as by the end of the Permit term, the Permittees will have further developed the institutional capacity necessary for continued green infrastructure implementation and, as such, may have a futurelooking plan that will incorporate regulated road projects into the Permittees’ broader retrofit expectations.
Provision C.3.j.ii.(2)(i) recognizes the unique challenges inherent in the implementation of green infrastructure in small rural Permittee jurisdictions by allowing those Permittees to collectively submit an optional proposal for pilot projects investigating alternative green infrastructure techniques. If approved (or conditionally approved) by the Executive Officer, this proposal will allow (or conditionally allow) Permittees with small rural jurisdictions to meet part or all of their Provision C.3.j.ii.(2) Numeric Implementation retrofit requirements via alternative green infrastructure techniques.
Provision C.3.j.ii.(2)(j) allows Permittees to submit reports pursuant to Provision C.3.j.v.(5) estimating the benefit provided by new or existing ordinances that require Regulated Projects to treat significantly more impervious surface than the minimum required by Provision C.3, where such additional treatment may count towards the Provision C.3.j.ii.(2) Numeric Implementation retrofit requirements. Permittees whose reports are approved by the Executive Officer may use the benefit estimated for the current Permit term in the reports to offset up to 25 percent – but by no more than 1 acre – of their individual Provision C.3.j.ii.(2) Numeric Implementation retrofit requirements.
The offset is a one-time credit and its purpose is to help Permittees complete the planning and policy work sufficient to leverage private development and redevelopment projects within their jurisdictions to assist Permittees with achieving Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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compliance with the Provision C.3.j.ii.(2) Numeric Implementation retrofit requirements. The Provision C.3.j.ii.(2)(j) offset is temporary, for this Permit term.
Provision C.3.j.ii.(3) describes the Design and Other Criteria that all green infrastructure projects built pursuant to Provision C.3.j must comply with Provisions C.3.c and C.3.e-h because they represent the Water Board’s determination of maximum extent practicable-compliant designs that appropriately address identified water quality impacts.
All green infrastructure projects built pursuant to Provision C.3.j are also required to comply with Provision C.3.d. However, with cause (e.g., significantly constrained area for a BMP, substantially increased costs for that sizing relative to the C.3.j.i.(2)(g) approach outlined in the Previous Permit, significant amounts of run-on from adjacent areas, or other substantial constraints identified by the Permittees), and with reporting in their Annual Reports, Permittees may use the Guidance for Sizing Green Infrastructure Facilities in Streets Projects with companion analysis Green Infrastructure Facility Sizing for Non-Regulated Street Projects, submitted in June 2019199 as allowed by Provision C.3.j.i.(2)(g) of the Previous Permit, to size non-Regulated green streets projects (green infrastructure projects sited in the public road right of way). If they do so, the Permit requires Permittees to comply with the Water Board’s June 21, 2019, conditional approval of that submittal,200 which provides qualifiers to, and the conditions under which, the alternative sizing criteria may be used for non-Regulated green streets projects.
Provision C.3.j.ii.(4) describes a Technical Working Group (TWG) that Water Board encourages Permittees to participate in, along with staff and impartial science experts, to discuss and recommend long-term green infrastructure goals, targeting, in particular, Permittees’ public streets. The goals will likely inform subsequent Permit terms, with the idea that each subsequent Permit term would make significant progress towards the goals. The purpose of this Provision is therefore to, over the long-term, address pollutant loading and hydrologic impact from areas of Permittees’ jurisdictions that are not otherwise addressed by Provision C.3.b Regulated Projects. The goals will likely inform changes to Provision C.3.j.ii.(2) Numeric Implementation retrofit requirements.
The long-term goal may include consideration of crediting public and private projects that implement non-bioretention stormwater controls which provide water quality and hydrologic benefit that are reasonably comparable to the Permit’s expectations in 199Guidance for Sizing Green Infrastructure Facilities in Street Projects with companion Analysis: Green Infrastructure Facility Sizing for Non-Regulated Street Projects. BASMAA, June 2019. https://www.cccleanwater.org/userfiles/kcfinder/files/BASMAA_Guidance%20for%20Sizing%20Green%2 0Infrastructure%20Facilities%20in%20Street%20Projects%20with%20companion%20Analysis%20June %202019.pdf. Accessed on July 27, 2021. Or: https://basmaa.org/wp-content/uploads/2021/08/BASMAAGuidance-for-Sizing-Green-Infrastructure-Facilities-in-Street-Projects-with-Companion-Analysis.pdf; accessed on August 8, 2021
200Conditional Acceptance of Guidance for Sizing Green Infrastructure Facilities in Street Projects. June 21, 2019.
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Provisions C.3.c-d and C.3.g. The long-term goal may include consideration of other LID practices such as those proposed pursuant to Provision C.3.d.iv.
Provisions C.3.j.iii-iv. (No Missed Opportunities and Participate in Processes to Promote Green Infrastructure) are required to ensure green infrastructure projects remain a critical part of the Permittees’ storm water control and outreach efforts.
Provision C.3.j.v. (Tracking and Reporting Progress) is necessary to track the progress of green infrastructure projects and Permit compliance. It requires Permittees to track and map non-Regulated green infrastructure projects built pursuant to Provision C.3.j, in the same manner as Regulated Projects, using the tracking and mapping tools developed during the Previous Permit. This Provision requires that the tools must include a component that is available to the public, which is advertised on individual Permittee websites and on County stormwater program websites and as appropriate is advertised in other locations. This Provision lists the minimum level of detail that must be provided by the tracking and mapping tool for each project built pursuant to Provision C.3.j. If the tools contain additional information which has not been made available to the public such as detailed design information, incurred or planned operation and maintenance costs and operation and maintenance frequency, condition, and pollutant loads treated, that information is required be made available to Water Board staff upon request. The tracking and mapping tools were required to be completed in the Previous Permit, and therefore the Permit requires the Permittees to certify in the 2023 Annual Reports that the tracking and mapping tools have been completed and are being implemented. Reporting by the Permittees on the implementation of non-Regulated Projects may inform modifications to Provision C.3.j in future permits.
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C.4. Industrial and Commercial Site Controls
Legal Authority
Broad Legal Authority: CWA sections 402(p)(3)(B)(ii-iii), CWC sections 13377 and 13263, and Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(B, C, D, E, and F) and 40 CFR 122.26(d)(2)(iv).
Specific Legal Authority: Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(C) requires “[a] description of a program to monitor and control pollutants in storm water discharges to municipal systems from municipal landfills, hazardous waste treatment, disposal and recovery facilities, industrial facilities that are subject to section 313 of title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), and industrial facilities that the municipal permit applicant determines are contributing a substantial pollutant loading to the municipal storm sewer system.” Other specific legal authority is cited below.
Specific Provision C.4. Requirements
Provision C.4.a (Legal Authority) Federal NPDES regulation 40 CFR 122.26(d)(2)(i)(A) provides that each Permittee must demonstrate that it can control “through ordinance, permit, contract, order or similar means, the contribution of pollutants to the municipal storm sewer by storm water discharges associated with industrial activity and the quality of storm water discharged from site of industrial activity.”
Provision C.4.b (Inspection Plan) Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(C)(1) provides that Permittees must “identify priorities and procedures for inspections and establishing and implementing control measures for such discharges.” The Permit continues to require Permittees to implement an industrial and commercial site controls program to reduce pollutants in runoff from all industrial and commercial sites/sources.
Federal NPDES regulation 40 CFR 122.26(d)(2)(ii) provides that Permittees “[p]rovide an inventory, organized by watershed of the name and address, and a description (such as SIC codes) which best reflects the principal products or services provided by each facility which may discharge, to the municipal separate storm sewer, storm water associated with industrial activity.”
The Water Board has added to this Permit additional types of businesses for Permittees to include in their Industrial and Commercial Business Inspection Plan (Inspection Plan).
These are restaurants and other food service businesses, as well as supermarkets or large grocery stores with outdoor waste storage or cardboard compacting areas. Waste from these types of businesses is reasonably likely to contribute stormwater runoff pollution, and they are a common focus area of other stormwater program inspection requirements. Restaurants and other food service businesses have the potential to discharge pollutants associated with their activities such as food debris, trash, and other Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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wastes, including those from disposable food packaging and utensils. Similarly, supermarkets and large grocery stores have an elevated threat of potential discharges of trash, fluid milk products, food debris, and other wastes.
Vehicle fueling facilities were previously included in MRP 2 due to the reasonable likelihood to contribute to stormwater discharges of hydrocarbons, heavy metals and other chemicals used as fuel additives. The Water Board has now specified sites with “fueling activities” as a type of business to include in Permittees’ Inspection Plans. This is to clarify that sites with those activities are still considered a fueling facility, even if found in business types that perform other activities, and they have the same associated pollutants with the potential to discharge in stormwater.
These additional business types and similar activities are also components of business inspection requirements in other Phase I MS4 permits, including Los Angeles, Salinas, the City of South Lake Tahoe, El Dorado County, Placer County, and Seattle, WA.
The Permit continues to require Permittees to identify industrial sites and sources subject to the Industrial General Permit or other individual NPDES permit. U.S. EPA recognized that stormwater from industrial facilities would be regulated by both municipal and industrial stormwater programs, finding that:
1. Municipal operators of large and medium municipal separate storm sewer systems are responsible for obtaining systemwide or area permits for their system’s discharges. These permits are expected to require that controls be placed on storm water discharges associated with industrial activity which discharge through the municipal system. It is
anticipated that general or individual permits covering industrial storm water discharges to these municipal
separate storm sewer systems will require industries to comply with the terms of the permit issued to the
municipality, as well as other terms specific to the
Permittee.201
and:
2. Although today’s rule will require industrial discharges through municipal storm sewers to be covered by separate permit, U.S. EPA still believes that municipal operators of large and medium municipal systems have an important role in source identification and the development of pollutant controls for industries that discharge storm water through municipal separate storm sewer systems is appropriate.
Under the CWA, large and medium municipalities are
201 Federal Register. Vol. 55, No. 222, Friday, November 16, 1990, Rules and Regulations. P. 48056 Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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responsible for reducing pollutants in discharges from
municipal separate storm sewers to the maximum extent
practicable. Because storm water from industrial facilities may be a major contributor of pollutants to municipal
separate storm sewer systems, municipalities are obligated to develop controls for storm water discharges associated with industrial activity through their system in their storm water management program.202
This Permit does not require the Permittees to submit the list of facilities scheduled for inspection each year with annual reports. Instead, Permittees are to add each year’s inspection list to the Inspection Plan as part of the annual update to the Inspection Plan.
Permittees may choose to keep their annual lists in their databases or in electronic form. The annual lists must be made readily available to Water Board staff or its representatives upon request.
Water Board staff reviewed about 20 percent of the Permittees’ Inspection Plans during the MRP 1 term. A few of those Inspection Plans also provide detailed flow charts or instructions on how to conduct inspections, fill out the inspect forms, execute enforcement actions, conduct follow-up, and fulfill tracking and reporting for the MRP.
These comprehensive Inspection Plans help ensure inspection consistency and serve as excellent training documents for new inspection staff.
Provision C.4.c (Enforcement Response Plan) requires the Permittees to implement and update, as needed, their Enforcement Response Plan (ERP) that serves as a reference for inspection staff to take consistent and timely responses to actual or potential stormwater pollution problems discovered in the course of industrial/commercial stormwater inspections. The ERP provides guidance on (1) progressively stricter enforcement to achieve timely compliance, (2) enforcement scenarios, (3) follow-up inspections, (4) referral to another agency, (5) appropriate time periods for implementation of corrective actions, and (6) the roles and responsibilities of staff responsible for implementing the ERP.
Because ERPs are unique to each Permittee, this Permit continues to allow each Permittee flexibility to customize the ERP to fit its legal authority and its regulatory program. However, all ERPs must require corrective actions to be implemented before the next rain event, but no longer than 10 business days after the potential and/or actual discharges are discovered; and short timeframes for implementing corrective actions encourage businesses to prevent potential discharges from becoming actual discharges. Permittees must also require active non-stormwater discharges to cease immediately, timely implementation of corrective actions to clean up the discharge, and timely implementation of measures to prevent future active discharges. 202 Ibid
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This Permit standardizes and clarifies the ERP requirements in provisions C.4, C.5, and C.6. to eliminate ambiguity in the requirements.
Provision C.4.d (Inspections) continues MRP 2’s consolidation of the inspection requirements from MRP 1’s Provision C.4.b. Inspection Plan and C.4.c. ERP together into this Provision. Inspection frequencies are determined by each Permittee in its Inspection and Enforcement Response Plans.
U.S. EPA guidance states “management programs should address minimum frequency for routine inspections.” The U.S. EPA Fact Sheet—Visual Inspection says “[t]o be effective, [visual] inspections must be carried out routinely.” 203 The Water Board has declined to reduce the record keeping and reporting requirements of this permit. The Permit requires that only basic information be recorded for each inspection. This information is necessary to document each inspection to develop a history for the facility.
This information is also needed for Water Board staff to evaluate MS4 programs.
Annual reports need to provide enough detail to show compliance with the Permit terms.
For instance, during the MRP 1 term, annual reports showed few violations relative to the number of inspections completed. This did not match with the field inspection experience of Water Board staff. Further investigation showed that some Permittees did not consider potential discharges to be violations. Such investigation by Water Board staff would be made more difficult without the required information about inspections.
MRP 1 exempted verbal warnings from being reported in the annual reports. Water Board staff expected verbal warnings to have very limited use and only given for very minor issues that do not warrant anything in writing. However, from Water Board inspections, and annual report and ERP reviews, we concluded that many Permittees issue warnings in response to potential discharges, such as housekeeping issues, evidence of actual non-stormwater discharges that are not ongoing during an inspection, lack of BMPs, inadequate BMPs, and inappropriate BMPs. Even though potential discharges need timely corrective actions, it was unclear if these potential discharges were corrected in a timely manner because there was no written documentation on the potential discharges or verbal warnings issued. Only observed non-stormwater discharges were considered violations and issued some type of written enforcement action. Examples of potential discharges.
MRP 2 required, and this Permit continues to require, reporting of all potential and actual non-stormwater discharges based on the enforcement levels in each Permittee’s ERP, so that Water Board staff can evaluate whether Permittees are conducting appropriate follow-up.
203 U.S. EPA. 1999. 832-F-99-046, “Storm Water Management Fact Sheet – Visual Inspection.” Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Some Permittees feel that a 10-business day window to implement corrective action is not necessary and even unreasonable during the dry months for potential discharges and especially for minor potential discharges. Permittees have the discretion to add a rationale for allowing a longer time period, especially for corrective actions that require things such as capital improvements, revisions to standard operating procedures, and staff training. However, prompt implementation of corrective actions for most potential discharges minimizes the risk of potential discharges becoming actual discharges. A number of Permittees communicated that they prefer shorter corrective action timeframes because sites tend to take care of them right away versus forgetting about the corrective actions when given a longer corrective action timeframe. Throughout the MRP 1 term, Water Board staff asked Permittees for a list of minor potential discharges.
The only minor issue listed was open dumpster/garbage can lids. Water Board staff concurred that open dumpster/garbage can lids is minor, can be corrected immediately, and would not require any additional follow-up. Water Board industrial and construction inspectors consider open dumpster/garbage can lids and small amounts of trash/debris on the ground to be minor violations that can quickly be corrected, because staff at the industrial or construction sites can immediately cover the dumpsters and pick up and appropriately dispose of the trash. Water Board inspectors note those issues and corrective actions in their inspection reports.
Provision C.4.f (Staff Training) requires the Permittees to conduct annual staff trainings for inspectors. Trainings are necessary to keep inspectors current on enforcement policies and current MEP BMPs for industrial and commercial stormwater runoff discharges.
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C.5. Illicit Discharge Detection and Elimination
Legal Authority
The following legal authority applies to section C.5:
Broad Legal Authority: CWA sections 402(p)(3)(B)(ii-iii), CWC sections 13377 and 13263, and Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(B, C, D, E, and F) and 40 CFR 122.26(d)(2)(iv).
Specific Legal Authority: Federal NPDES regulations 40 CFR 122.26(d)(1)(iii)(B)(1) provides that the Permittee shall include in their application “the location of known municipal storm sewer system outfalls discharging to waters of the United States.” Federal NPDES regulations 40 CFR 122.26(d)(1)(iii)(B)(5) provides that the Permittee shall include in their application “[t]he location of major structural controls for storm water discharge (retention basins, detention basins, major infiltration devices, etc.” Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(B) provides that the Permittee shall have adequate legal authority to “[p]rohibit through ordinance, order or similar means, illicit discharges to the municipal separate storm sewer.” Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(F) provides that the Permittee shall have adequate legal authority to “[c]arry out all inspection, surveillance and monitoring procedures necessary to determine compliance and noncompliance with permit conditions including the prohibition on illicit discharges to the municipal separate storm sewer.”
Federal NPDES regulations 40 CFR 122.26(d)(2)(iv)(B) requires that the Permittee have a “ description of a program, including a schedule, to detect and remove (or require the discharger to the municipal storm sewer to obtain a separate NPDES permit for) illicit discharges and improper disposal into the storm sewer.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(B)(1) requires a “program, including inspections, to implement and enforce an ordinance, orders or similar means to prevent illicit discharges to the municipal storm sewer system.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(B)(2) requires a “description of procedures to conduct on-going field screening activities during the life of the permit, including areas or locations that will be evaluated by such field screens.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(B)(3) requires a “description of procedures to be followed to investigate portions of the separate storm sewer system that, based on the results of the field screen, or other appropriate information, indicate a reasonable potential of containing illicit discharges or other sources of non-storm water.” Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Federal NPDES regulations 40 CFR 122.26(d)(2)(iv)(B)(4) requires a “description of procedures to prevent, contain, and respond to spills that may discharge into the municipal separate storm sewer.”
Federal NPDES regulations 40 CFR 122.26(d)(2)(iv)(B)(5) requires a “description of a program to promote, publicize, and facilitate public reporting of the presence of illicit discharges or water quality impacts associated with discharges from municipal separate storm sewers.”
Federal NPDES regulations 40 CFR 122.26(d)(2)(iv)(B)(7) requires a “description of controls to limit infiltration of seepage from municipal sanitary sewers to municipal separate storm sewer systems where necessary.”
Fact Sheet Findings in Support of Provision C.5
C.5-1 Discharges not comprised entirely of stormwater, not authorized by another NPDES permit, and neither exempted nor conditionally exempted in Provision C.15 are not authorized to enter the MS4 and are considered to be illicit discharges
C.5-2 Every Permittee must have the ability to effectively prohibit non-stormwater discharges to its MS4 by detecting and eliminating illicit discharges and disposal into its MS4.
C.5-3 Illicit discharges to the storm drain system may be detected in several ways.
Permittee staff may detect discharges incidentally, and members of the public may report suspected discharges. The Permittee must have a direct means to receive, investigate, respond to, and track these reports.
Removal of Routine Collection System Screening Requirement MRP 1 required the Permittees to perform routine surveys for illicit discharges and illegal dumping in above ground check points in the collection system including elements that are typically inspected for maintenance purposes, such as end of pipes, creeks, flood conveyances, storm drain inlets, and catch basins, to seek and eliminate illicit connections and discharges. The results of the screenings were reported in annual reports. No illicit connections were reported. However, Permittees have found illicit discharges during the screenings and they were cleaned up. It is unclear if personnel conducting the screenings reported these illicit discharges to the illicit discharge staff for investigation and tracking. In MRP 2, we added language to C.5.c. – Spill, Dumping, and Complaint Response Program to ensure that illicit discharges found by municipal staff conducting routine maintenance and inspection activities on the collection system are reported to the illicit discharge staff for investigation and tracking. This is based on the federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(B)(3), which requires “procedures to be followed to investigate portions of the separate storm sewer system that, based on the results of the field screen, or other appropriate information, indicate a reasonable potential of containing illicit discharges or other sources of non-storm water.” Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Specific Provision C.5 Requirements
Provision C.5.a (Legal Authority) requires each Permittee have adequate legal authority to prohibit illicit discharges to storm sewers as required by federal regulations at 40 CFR 122.26(d)(2)(i)(B). Illicit and inadvertent connections to MS4 systems result in a discharge into the MS4 that is not comprised entirely of stormwater. Every Permittee must have the ability to discover, inspect, enforce its ordinance, track, and clean up stormwater pollution discharges by illicit connections and other illegal discharges to the MS4 system.
Provision C.5.b (Enforcement Response Plan) continues to require Permittees to implement and update, as needed, their Enforcement Response Plans (ERPs) to ensure consistent and timely responses to illicit discharges and connections to the MS4.
The ERP provides guidance on (1) progressively strict enforcement to achieve timely compliance, (2) follow-up inspection, (3) referral to another agency, (3) appropriate time periods for implementation of corrective actions, and (4) the roles and responsibilities of staff responsible for implementing the ERP. Corrective actions must be implemented before the next rain event, but no longer than 10 business days after the potential and/or actual discharges are discovered. Permittees must also require immediate cessation of active discharges, and timely implementation of corrective actions to clean up the discharge and implementation of measures to prevent future active discharges.
Water Board staff reviewed more than half of the Permittees’ ERPs during MRP 1.
Almost all of those Permittees have one ERP to satisfy the ERP requirements in provisions C.4, C.5, and C.6. While a couple of Permittees have detailed, comprehensive plans, more than half of the ERPs reviewed did not comply with the ERP requirements in MRP 1. Therefore, the ERP requirements in this Permit are standardized in provisions C.4, C.5, and C.6.
Provision C.5.c (Spill, Dumping, and Complaint Response Program) Federal NPDES regulations 40 CFR 122.26(d)(2)(iv)(B)(4) requires “a description of procedures to prevent, contain, and respond to spills that may discharge into the municipal separate storm sewer.” This Provision of the Permit requires the Permittees to establish and maintain a central point of contact including phone numbers for spills, dumping, and complaints reporting. Reports from the public and other Permittee staff are an essential tool in discovering and investigating illicit discharge activities into the MS4. Maintaining contact points helps ensure that there is effective reporting to assist with the discovery of prohibited discharges. Each Permittee must have a means to adequately track suspected polluted discharges from the time they are reported until they are resolved.
Provision C.5.d (Tracking and Case Follow-up) implements the requirement in 40 CFR 122.26(d)(2)(iv)(B)(4) for permittees to have procedures to “respond to spills” by requiring Permittees to substantiate, track, and monitor illicit discharges reported to the spills, dumping, and complaint response system (Provision C.5.c). This requirement is included so Permittees can demonstrate compliance with the ERP requirements in Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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Provision C.5.b and to ensure that illicit discharge reports receive adequate follow-up and resolution.
All municipalities, counties, district, and other public entities that own or operate sanitary sewer systems greater than one mile in length that collect and/or convey untreated or partially treated wastewater to a publicly owned treatment facility in California are required to report sanitary sewer overflows to the California Integrated Water Quality System Project pursuant to the State Water Board’s Order No. 2006-003-DWQ (Statewide General Waste Discharge Requirements for Sanitary Sewer Systems) and Order WQ 2013-0058-EXEC (Adopting Amended Monitoring Requirements for Statewide General Waste Discharge Requirements for Sanitary Sewer Systems order.
Sewage discharges that are reported to the California Integrated Water Quality System Project do not need to be tracked and reported in Provision C.5.
Provision C.5.e (Control of Mobile Sources) requires each Permittee to implement a program to reduce the discharge of pollutants from mobile businesses. Examples of mobile businesses include mobile cleaners that wash vehicles, building exteriors, sidewalks, and plazas, cleaners that wash restaurant smoke hood filters, mats, and other equipment, and mobile fueling businesses that fill up gas tanks for vehicles owned by carshare companies or certain technology company employees. The purpose of this section is to implement oversight and control of pollutants associated with mobile business sources to the MEP.
MRP 2 required Permittees to develop and implement a program to reduce the discharge of pollutants from mobile businesses and to develop an inventory of mobile businesses. Permittee experience during the previous permit term showed that it is difficult to track and register mobile businesses. Mobile businesses may have a business license from another municipality, another county, or have no business license. They often work outside of normal business hours (e.g., restaurant cleaners may work late at night when restaurants are closed), and so are difficult to observe and inspect. This Permit shifts the enforcement approach focus from developing an inventory of mobile businesses and direct observation of mobile business activities to reiterating that the entity hiring the mobile business and the mobile business themselves are responsible for any polluted discharge from the business or property.
This Permit keeps the outreach requirement to develop and distribute educational materials about stormwater pollution prevention to mobile businesses. Permittees may develop their own education and outreach materials, or may participate in a countywide or regional program. In order to understand what Permittees are doing to control pollutants from mobile sources, this Permit continues most requirements of MRP 2 and collects data on each Permittee’s implementation of the provision.
Provision C.5.f (Municipal Separate Storm Sewer System (MS4) Map) As part of the permit application process, federal NPDES regulations 40 CFR 122.26(d)(1)(iii)(B)(1) and 40 CFR 122.26(d)(1)(iii)(B)(5) specify that dischargers must identify the location of Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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any major outfall that discharges to waters of the United States, as well as the location of major structural controls for stormwater discharges.A major outfall is any outfall that discharges from a single pipe with an inside diameter of 36 inches or more or its equivalent (discharge from a single conveyance other than a circular pipe which is associated with a drainage area of more than 50 acres) or; for areas zoned for industrial activities, any pipe with a diameter of 12 inches or more or its equivalent (discharge from other than a circular pipe associated with a drainage area of 2 acres or more). The permitting agency may not process a permit until the applicant has fully complied with the application requirements.204 If, at the time of application, the information is unavailable, the Permit must require implementation of a program to meet the application requirements.205 All Permittees have complied with this requirement. This Permit continues to require the Permittees to advertise the availability of the maps of their MS4 system and to make available these maps to the public upon request.
In addition to the mapping information previously submitted, this Permit also requires Permittees to identify information missing from the current MS4 maps and develop a plan and schedule to compile additional storm sewer system information. Previous permits did not require Permittees to submit regular updates to their MS4 system maps, so the current status of the overall MS4 systems as compared to previous maps is unknown. To effectively manage and respond to illicit discharges, as well as potential impacts from conditionally exempted discharges like emergency firefighting discharges, it is essential for Permittees to understand their current MS4 system layout and conditions, as well as how discharge sources are connected to outfalls that discharge to their system.
The proposed updates that this Permit requires are consistent with the requirements of other stormwater permits in the state. For instance, the California Permit for Small MS4s,206 the City of Long Beach MS4 Permit,207 and the City of Salinas MS4 Permit208 also require Permittees to keep their MS4 system maps up to date by submitting annual revisions or verifying that no modifications to the system occurred during the annual reporting period.
The City of Salinas MS4 Permit requires the city to maintain a Stormwater Information Management System that includes a map of MS4 system components with information 204 40 CFR 124.3 (applicable to state programs, see section 123.25). 205 40 CFR 122.26(d)(1)(iv)(E).
206 California State Water Board, NPDES Permit for Storm Water Discharges from Small Municipal Separate Storm Sewer Systems (MS4s), NPDES Permit No. CAS000004, Order No. 2013-0001-DWQ, as amended.
207 Los Angeles Regional Water Board, Waste Discharge Requirements for Municipal Separate Storm Sewer System (MS4) Discharges from the City of Long Beach, NPDES Permit No. CAS004003, Order No. R4-2014-0024.
208 Central Coast Regional Water Board, NPDES Permit and WDR for the City of Salinas Municipal Stormwater Discharges, NPDES Permit No. CA0049981, Order No. R3-2019-0073, adoption date:
September 20, 2019, effective date: October 1, 2019.
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such as the name, type, location, and discharge information. The map must identify open channels and other conveyance features, inlets to the MS4, and connections over 8 inches in diameter to MS4 conveyances. The map must also include components that influence maintenance capacity and conveyance, such as cleanouts, pump stations, diversion structures, and trash capture devices.
The City of Long Beach MS4 Permit requires an electronic map that includes the location and length of all open channel and underground pipes 18 inches in diameter or greater, as well as storm drain outfall catchment areas for each major outfall. The Los Angeles County MS4 Permit also requires an up-to-date and accurate electronic map of the county’s MS4.209 In addition to outfalls, the required map components include the location and length of open channels and underground storm drain pipes with a diameter of 36 inches or greater.
209 Los Angeles Regional Water Board, NPDES Permit for Municipal Separate Storm Sewer System (MS4) Discharges within the Coastal Watersheds of Los Angeles County, Except those Discharges Originating from the City of Long Beach, NPDES Permit No. CAS004001, Order No. R4-2012-0175, as amended.
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C.6. Construction Site Control
Legal Authority
The following legal authority applies to section C.6:
Broad Legal Authority: CWA sections 402(p)(3)(B)(ii-iii), CWC sections 13377 and 13263, and Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(B, C, D, E, and F) and 40 CFR 122.26(d)(2)(iv).
Specific Legal Authority: Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(D) requires “[a] description of a program to implement and maintain structural and nonstructural best management practices to reduce pollutants in storm water runoff from construction sites to the municipal storm sewer system.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(D)(1) requires “[a] description of procedures for site planning which incorporate consideration of potential water quality impacts.”
Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(D)(2) requires “[a] description of requirements for nonstructural and structural best management practices.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(D)(3) requires “[a] description of procedures for identifying priorities for inspecting sites and enforcing control measures which consider the nature of the construction activity, topography, and the characteristics of soils and receiving water quality.”
Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(D)(4) requires “[a] description of appropriate educational and training measures for construction site operators.” Federal NPDES regulation 40 CFR 122.26(d)(2)(i)(A) provides that each Permittee must demonstrate that it can control, “through ordinance, permit, contract, order or similar means, the contribution of pollutants to the municipal storm sewer by storm water discharges associated with industrial activity and the quality of storm water discharged from site of industrial activity.”
Federal NPDES regulation 40 CFR 122.26(b)(14) provides that “[t]he following categories of facilities are considered to be engaging in ‘industrial activity’ for the purposes of this subsection: […] (x) Construction activity including cleaning, grading and excavation activities […].”
Federal NPDES regulation 40 CFR 122.44(d)(1)(i) requires NPDES permits to include limitations to “control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.”
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Fact Sheet Findings in Support of Provision C.6.
C.6-1 Vegetation clearing, mass grading, lot leveling, and excavation expose soil to erosion processes and increase the potential for sediment mobilization, runoff and deposition in receiving waters. Construction sites without adequate BMP implementation result in sediment runoff rates that greatly exceed the natural erosion rates of undisturbed lands, causing siltation and impairment of receiving waters.
C.6-2 Excess sediment can cloud the water, reducing the amount of sunlight reaching aquatic plants, clog fish gills, smother aquatic habitat and spawning areas, and impede navigation in our waterways. Sediment also transports other pollutants, such as nutrients, metals, and oils and grease. Permittees are onsite at local construction sites for grading and building permit inspections, and also have in many cases dedicated construction stormwater inspectors with training in verifying that effective BMPs are in place and maintained.
Permittees also have effective tools available to achieve compliance with adequate erosion control, such as stop work orders and citations.
C.6-3 Mobilized sediment from construction sites can flow into the MS4 and then into receiving waters. According to the 2004 National Water Quality Inventory,210 States and tribes report that sediment is a major cause of impairment of assessed rivers and streams. The Inventory found that sediment impairs 35,177 river and stream miles (14 percent of the impaired river and stream miles). Sediment runoff rates from construction sites are typically 10 to 20 times greater than runoff rates from agricultural lands, and 1,000 to 2,000 times greater than runoff rates from forest lands. During a short period of time, construction sites can contribute more sediment to streams than can be deposited naturally during several decades.211
Specific Provision C.6 Requirements
Provision C.6.a. Legal Authority for Effective Site Management. Federal NPDES regulation 40 CFR 122.26(d)(2)(i)(A) requires that each Permittee demonstrate that it can control “through ordinance, permit, contract, order or similar means, the contribution of pollutants to the municipal storm sewer by storm water discharges associated with industrial activity and the quality of storm water discharged from site of industrial activity.” This section of the Permit requires each Permittee to have the authority to require year-round, seasonally and phase appropriate effective erosion control, run-on and runoff control, sediment control, active treatment systems, good site management, 210 http://www.epa.gov/owow/305b/2004report/2004_305Breport.pdf 211 U.S. EPA. December 2005. Stormwater Phase II Final Rule Fact Sheet Series – Construction Site Runoff Control Minimum Control Measure. EPA 833-F-00-008. Fact Sheet 2.6.
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and non-stormwater management through all phases of site grading, building, and finishing of lots. All Permittees should already have this authority.
In its Phase II Compliance Assistance Guidance, U.S. EPA says that “[i]nspections give the MS4 operator an opportunity to provide additional guidance and education, issue warnings, or assess penalties.”212 To issue warnings and assess penalties during inspections to achieve timely corrective actions from sites, inspectors must have the legal authority to conduct enforcement.
Provision C.6.b. Enforcement Response Plan (ERP). This section requires each Permittee to implement and update, as needed, its Enforcement Response Plan (ERP), which serves as a reference for inspection staff to take consistent actions and timely response to achieve effective, timely corrective compliance from all public and private construction site owners/operators.
U.S. EPA supports enforcement of ordinances and permits at construction sites, stating “[e]ffective inspection and enforcement requires […] penalties to deter infractions and intervention by the municipal authority to correct violations.”213 In addition, U.S. EPA expects permits issued to municipalities to address “weak inspection and enforcement.”214 For these reasons, the enforcement requirements in this section have been established, while providing sufficient flexibility for each Permittee’s unique stormwater program. Prior to the issuance of MRP 1, Water Board staff had noted deficiencies in the Permittees’ enforcement procedures and implementation during inspections. The most common issues found were that enforcement was not firm and appropriate to correct the violation, and that repeat violations did not result in escalated enforcement procedures. Therefore, MRP 1 required Permittees to develop ERPs. MRP 2 required Permittees to implement the ERPs, and the Permit continues to require Permittees to implement the ERPs.
ERPs are unique to each Permittee. As such, this Permit continues to frame ERP requirements broadly. For instance, at minimum, an ERP must include: (1) progressively strict enforcement to achieve timely compliance, (2) enforcement scenarios, (3) follow-up inspections, (4) referral to another agency, (5) appropriate time periods for implementation of corrective actions, and (6) the roles and responsibilities of staff responsible for implementing the ERP. The broad framework allows each Permittee flexibility to customize the ERP to fit its legal authority and ordinary business practices. However, for an ERP to be effective, Permittees must require immediate cessation of active non-stormwater discharges, timely implementation of corrective actions to clean up the discharge, and implementation of measures to prevent future active discharges. Corrective actions must be implemented before the next rain event, but no longer than 10 business days after the potential and/or actual discharges are 212 U.S. EPA. 2000. 833-R-00-002, Storm Water Phase II Compliance Assistance Guide, pp.4-31 213 U.S. EPA. 1992. Guidance 833-8-92-002. Section 6.3.2.3. 214 Federal Register. Vol. 55, No. 222, Friday, November 16, 1990. Rules and Regulations. p.48058.
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discovered. Construction sites are required by the statewide NPDES General Permit for Stormwater Discharges Associated with Construction Activities (Construction General Permit) to keep supplies on hand to address BMP issues rapidly. In a few cases, such as slope inaccessibility, it may require longer than 10 days before crews can safely access an eroded area. Corrective actions can be temporary and more time can be allowed for permanent corrective actions. The Permittees’ tracking data needs to provide a rationale for the longer compliance timeframe.
Water Board staff reviewed more than half of the Permittees’ ERPs during the MRP 1 term. While a couple of Permittees have detailed, comprehensive plans, more than half of the ERPs reviewed did not comply with the ERP requirements in MRP 1. Therefore, this Permit standardizes and clarifies the ERP requirements in provisions C.4, C.5, and C.6 to eliminate any ambiguity in the requirements.
Provision C.6.c. Best Management Practices Categories. This section requires all Permittees to require all construction sites to have year-round and seasonally appropriate and effective BMPs in the following six categories: (1) erosion control, (2) run-on and runoff control, (3) sediment control, (4) active treatment systems, (5) good site management, and (6) non stormwater management. These BMP categories match those listed in the Construction General Permit and reflect the nature of the potential water quality threats posed by construction sites, as well as the means of addressing those potential threats. Because sites’ terrain, soil type, soil disturbance, and proximity to waterbodies differ, it would be unduly prescriptive and inappropriate to require all sites to implement a specific set of BMPs. This Permit, like the Construction General Permit, allows Permittees the flexibility to determine if the BMPs for each construction site are effective and appropriate and to change BMPs quickly to prevent discharges into storm drains, waterways, and rights-of-way. Appropriate BMPs for the different site conditions can be found in different handbooks and manuals, such as CASQA’s Construction BMP Handbook.215
Sediment runoff at construction sites without adequate BMP implementation greatly exceeds natural erosion rates of undisturbed lands, causing siltation and impairment of receiving waters. This is because the vegetation clearing, mass grading, lot leveling, and excavation at construction sites expose soil to wind and water, increasing sediment mobilization, runoff into the MS4, and deposition in receiving waters. This occurs in both the wet season and in unexpected rain events during the dry season (defined as May 1 through September 30), which can be significant. Therefore, Permittees should ensure that construction sites have materials on hand for rapid rain response during the whole year, including during the dry season.
Provision C.6.c.ii.(1).d requires “project proponents to minimize grading during the wet season and scheduling of grading with seasonal dry weather periods to the extent 215 CASQA, 2019. Construction BMP Online Handbook. https://www.casqa.org/resources/bmphandbooks/construction Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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feasible.” If grading does occur during the wet season, Permittees must require project proponents to (1) implement additional BMPs as necessary, (2) keep supplies available for rapid response to storm events, and (3) minimize wet-season, exposed, and graded areas to the absolute minimum necessary.
“Steep slopes are the most highly erodible surface of a construction site,”216 and unstabilized slopes at construction sites are significant sources of erosion and sediment discharges during rainstorms. Therefore, this Permit requires slope stabilization on all active and inactive slopes during rain events regardless of the season, except in areas implementing advanced treatment. Slope stabilization is also required on inactive slopes throughout the rainy season. As noted by U.S. EPA, “slope length and steepness are key influences on both the volume and velocity of surface runoff. Long slopes deliver more runoff to the base of slopes and steep slopes increase runoff velocity; both conditions enhance the potential for erosion to occur.”217 Where vegetation preservation or replanting is not possible, soil stabilization is the most effective measure in preventing erosion on slopes. Research has shown that effective soil stabilization can reduce sediment discharge concentrations up to six times, as compared to soils without stabilization.218 Slope stabilization at construction sites for erosion control is already the consensus among the regulatory community and is found throughout construction BMP manuals and permits. For these reasons, this Permit requires Permittees to ensure that sites implement slope stabilization techniques that are appropriate for the grade and height of the affected slopes.
This Permit also requires Permittees to ensure that construction sites permanently stabilize disturbed soils, e.g., by revegetation, at the conclusion of each phase of construction.219 To maximize the degree to which vegetation can effectively stabilize soils, Permittees must ensure that construction sites are revegetated as early as feasible. Revegetation reduces the threat of polluted stormwater discharges from construction sites. A survey of grading and clearing programs found one-third of the programs without a time limit for permanent revegetation, “thereby increasing the chances for soil erosion to occur.”220 U.S. EPA states “the establishment and maintenance of vegetation are the most important factors to minimizing erosion during development.”221
216 Schueler, T., and H. Holland. 2000. Muddy Water In—Muddy Water Out? The Practice of Watershed Protection. p. 6.
217 U.S. EPA. 1990. Sediment and Erosion Control: An Inventory of Current Practices. p. II-1. 218 Schueler, T., and H. Holland. 2000. “Muddy Water In—Muddy Water Out?” The Practice of Watershed Protection. p. 5.
219 Ibid.
220 Ibid. p. 11.
221 U.S. EPA. 1990. Sediment and Erosion Control: An Inventory of Current Practices. p. II-1.
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To ensure the MEP standard and water quality standards are met, active treatment systems may be necessary at some construction sites. Requirements for active system requirements are located in the Construction General Permit, Attachment F.
Provision C.6.d. Plan Approval Process. U.S. EPA guidance emphasizes the importance of good site planning,222 early incorporation of stormwater controls into a construction project, and implementation of a comprehensive stormwater management system—that is, an effective combination of controls appropriate to the project and site.223 This section of the Permit requires the Permittees to review project proponents’ stormwater management plans for compliance with local regulations, policies, and procedures before ground is broken on a construction project, and during the site plan review process or earlier, as recommended by U.S. EPA.224 Site plan review aids in compliance and enforcement efforts since it alerts the “MS4 operator early in the process to the planned use or non-use of proper BMPs and provides a way to track new construction activities.”225
Provision C.6.e. Inspections. This Provision requires permittees to ensure accountability of construction site managers through a program of regular inspections, consistent enforcement, and meaningful tracking. These three elements will help ensure that effective construction pollutant controls are in place in order to minimize construction polluted runoff to the storm drain and waterbodies.
The level of effort required by this section remains unchanged from the previous permit.
The monthly or more frequent inspections during the wet season of all construction sites disturbing one or more acre of land, all hillside projects, and all high priority sites reflects the need to ensure that potentially changing conditions on sites are appropriately being addressed during the part of the year when there is a greater threat associated with a greater probability of precipitation, and has been shown during previous permit terms to adequately identify problem sites. Inspections must focus on the adequacy and effectiveness of the site-specific BMPs implemented for the six BMP categories. Each Permittee must implement its ERP and require timely corrections of all actual and potential problems observed. All corrective actions must be implemented before the next rain event, but no longer than 10 business days after the violations are discovered.
A longer time period to implement corrective actions is allowed with a reasonable rationale. All inspections must be recorded on a written or electronic inspection form, and also tracked in an electronic database or tabular format. 222 Federal Register. Vol. 55, No. 222, Friday, November 16, 1990. Rules and Regulations. p. 48034. 223 Ibid.
224 U.S. EPA. 2000. Storm Water Phase II Compliance Assistance Guide. EPA 833-R-00-002. Section
4.6.2.4,
pp. 4–30.
225 Ibid. pp. 4–31.
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MRP 1 required Permittees to have the legal authority to require effective construction stormwater controls at all construction sites, regardless of the amount of soil disturbed.
Water Board staff has observed disturbed construction sites where minimal BMPs were being implemented, and has seen stormwater transport construction site pollutants into the storm drain. For these reasons, ideally, all construction sites with a grading permit from a Permittee should have stormwater inspections during the rainy season to ensure adequate BMPs are implemented and construction pollutants are not entering the storm drain. Construction sites with steeper slopes pose a more-significant threat of discharging construction-related pollutants to the storm drain because they are likely to have higher runoff velocities and because their BMPs must be more robust and morerobustly installed and maintained in order to control pollutants, as compared to lesssteep sites. Water Board staff has observed stormwater move sediment and other construction-related pollutants into storm drains at sites ranging from those with flat slopes to those with slopes greater than 15 percent. Because of the relatively greater threat posed by steeper sites, MRP 2 added, and this Permit continues a specific requirement to inspect all hillside projects disturbing greater than or equal to 5,000 square feet of soil. For those Permittees that do not have a hillside development map or definition, this Permit defines hillside development as development occurring on land with a slope greater than or equal to 15 percent.
MRP 1 required Permittees to report the number of violations fully corrected prior to the next event, but no longer than 10 business days after the potential and actual discharges are discovered or otherwise considered corrected in a timely, though longer period. This proved challenging for many Permittees because they track enforcement actions and not discreet violations. While information on how many potential and actual discharges are discovered and resolved would be valuable, the Water Board recognizes that such reporting requirements would require significant changes in databases for some Permittees. Therefore, this Permit allows Permittees to either report by enforcement actions or discrete number of potential and actual discharges.
Provision C.6.f. Staff Training. This section of the Permit requires Permittees to conduct staff trainings for municipal staff at least every other year. These trainings have been found to be extremely effective means to educate inspectors and to inform them of any changes to local ordinances and state laws. Trainings provide valuable opportunity for Permittees to network and share strategies used for effective enforcement and management of erosion control practices.
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C.7. Public Information and Outreach
Legal Authority
The following legal authority applies to section C.7:
Broad Legal Authority: CWA sections 402(p)(3)(B)(ii-iii), CWC sections 13377 and 13263, and Federal NPDES regulations 40 CFR 122.26(d)(2)(i)(B, C, E, and F) and 40 CFR 122.26(d)(2)(iv).
Specific Legal Authority: Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(A)(6) requires “[a] description of a program to reduce to the maximum extent practicable, pollutants in discharges from municipal separate storm sewers associated with the application of pesticides, herbicides, and fertilizer which will include, as appropriate, controls such as educational activities, permits, certifications, and other measures for commercial applicators and distributors, and controls for application in public right-ofways [sic] and at municipal facilities.” Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(B)(5) requires “a description of a program to promote, publicize, and facilitate public reporting of the presence of illicit discharges or water quality impacts associated with discharges from municipal separate storm sewers.”
Federal NPDES regulation 40 CFR 122.26(d)(2)(iv)(B)(6) requires “[a] description of educational activities, public information activities, and other appropriate activities to facilitate the proper management and disposal of used oil and toxic materials.” Fact Sheet Findings in Support of Provision C.7.
C.7-1 An informed and knowledgeable community is critical to the success of a stormwater program since it helps ensure greater support for the program as the public gains a greater understanding of stormwater pollution issues.
C.7-2 An informed community also ensures greater compliance with the program as the public becomes aware of the personal responsibilities expected of them and others in the community, including the individual actions they can take to protect or improve the quality of area waters.
C.7-3 The public education programs should use a mix of strategies to address the viewpoints and concerns of a variety of audiences and communities, including minority and disadvantaged communities, as well as children.226 C.7-4 Target audiences should include (1) government agencies and official to achieve better communication, consistency, collaboration, and coordination at the federal, state, and local levels and (2) K-12/Youth Groups. 226 U.S. EPA. 2000. Storm Water Phase II Compliance Assistance Guide. EPA 833-R-00-002.
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C.7-5 Citizen involvement events should make every effort to reach out and engage all economic and ethnic groups.227
Specific Provision C.7 Requirements
Provision C.7.a. Outreach Campaigns. Permittees have long implemented outreach campaigns to educate their residents on different stormwater runoff pollution prevention messages. The Permit continues to require a minimum of one public outreach campaign. It is anticipated that Permittees will continue cooperatively implementing the Our Water, Our World pesticide use reduction outreach campaign developed by BASMAA. Individual Permittees, their respective countywide programs, and cooperative inter-Permittee efforts, will either continue existing public outreach campaigns or start new ones. This Permit removes specificity regarding the expected public outreach campaigns and how they must be conducted, recognizing that the Permittees have decades of public outreach experience and allowing flexibility to determine how best reach their residents. Permittees can utilize various electronic and print media, and paid and free media to target different audiences. This Permit still requires an effectiveness assessment/evaluation after each outreach campaign to enable Permittees to determine whether stormwater messaging has reached residents and resulted in behavior changes.
Provision C.7.b. Stormwater Pollution Prevention Education. The public needs information on how to minimize stormwater pollution. MRP 1 and MRP 2 required Permittees to have and publicize a centralized stormwater point of contact to provide the public with information on watershed characteristics and stormwater pollution prevention alternatives. The Permittees list this point of contact on the brochures, pamphlets, and fact sheets they circulate on stormwater pollution prevention issues.
Some Permittees provide these materials in languages other than English. Many Permittees have also placed these pollution prevention materials on their websites.
Since citizens increasingly use the internet to search for information, this Permit continues to require all Permittees to place information on watershed characteristics and stormwater pollution prevention on their websites.
Provision C.7.c. Public Outreach and Citizen Involvement Events. This Permit continues to require Permittees to host citizen involvement events to ensure that pollution prevention messaging reaches a broad spectrum of citizens. Long-established outreach mechanisms, such as staffing tables or booths at fairs, street fairs, and other community events, help to ensure that citizens who do not actively search for information on Permittees’ website may still have access to information. Permittees shall continue utilizing appropriate outreach materials, such as printed materials, newsletter/journal articles, and videos. Permittees shall also utilize existing community outreach events, such as the Bringing Back the Natives Garden Tour. It is important to provide opportunities for citizens to actively practice being good stewards of our 227 Ibid.
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environment. The combined specified numbers of events for Public Outreach and Citizen Involvement in this Permit are, for the most part, slightly less than the combined specified numbers in MRP 1. However, many Permittees claimed credit for both public outreach and citizen involvement for a number of events each year.
Provision C.7.d. Watershed Stewardship Collaboration. Community watershed groups are comprised of active citizens, but they function best when they receive support from and can coordinate actions with Permittees.
Provision C.7.e. School-Age Children Outreach. Outreach to school children has proven to be a particularly successful program with an enthusiastic audience who are efficient to reach. School children also take the message home to their parents, neighbors, and friends. In addition, they are the next generation of decision-makers and consumers.
Provision C.7.f. Outreach to Municipal Officials. It is important for Permittee staff to periodically inform municipal officials of the permit requirements and also future planning and resource needs driven by the permit and stormwater regulations.
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C.8. Water Quality Monitoring
Legal Authority
Broad Legal Authority: CWA §§ 308(a), 402(a)(2); Federal NPDES regulations 40 CFR §§122.26(d)(2)(i)(F), 122.41(h), (j), (l), 122.42(c), 122.44(i), and 122.48.
Specific Legal Authority: Permittees must conduct a comprehensive monitoring program and submit reports as required under the laws cited above. CWC Section 13383 further authorizes the Regional Water Board to establish monitoring, inspection, entry, reporting, and recordkeeping requirements.
Fact Sheet Findings in Support of Provision C.8
C.8-1 In response to questions regarding the type of WQBELs that are most appropriate for NPDES stormwater permits, and because of the nature of stormwater discharges, U.S. EPA established the following approach to stormwater monitoring:
Each storm water permit should include a coordinated and cost-effective monitoring program to gather necessary information to determine the extent to which the permit provides for attainment of applicable water quality standards and to determine the appropriate conditions or limitations for subsequent permits. Such a monitoring program may include ambient monitoring, receiving water assessment, discharge monitoring (as needed), or a combination of monitoring procedures designed to gather necessary information.228 According to U.S. EPA, the benefits of stormwater runoff monitoring include, but are not limited to, the following:
(1) Providing a means for evaluating the environmental risk of stormwater discharges by identifying types and amounts of pollutants present; (2) Determining the relative potential for stormwater discharges to contribute to water quality impacts or water quality standard violations; (3) Identifying potential sources of pollutants; and
(4) Eliminating or controlling identified sources more specifically through permit conditions.229
228 U.S. EPA. 1996. Interim Permitting Approach for Water Quality-Based Effluent Limitations in Stormwater Permits. Sept. 1, 1996. In it, U.S. EPA recognizes that storm water discharges are highly variable both in terms of flow and pollutant concentrations and the relationships between discharges and water quality can be complex.
229 U.S. EPA. 1992. NPDES Storm Water Sampling Guidance Document. EPA/833-B-92-001.
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C.8-2 A workshop held by U.S. EPA Region 9230 identified key attributes of a more effective approach to monitoring, and how that monitoring may intersect with other evaluation, tracking, and reporting efforts:
(1) Clear management questions related to water quality outcomes and activity implementation.
(2) A process for conducting effectiveness assessment that is tailored to the program element and the management questions being asked. (3) Use of improved monitoring designs (location, scale, frequency, methods) to detect a “signal” or change in pollutant loading in stormwater or receiving waters for POCs.
(4) Monitoring efforts that complement activity tracking and assessment to better evaluate effectiveness of treatment or source controls (e.g., are they implemented correctly, receiving proper maintenance, and operating as expected?) and improve the basis for assessing cause and effect. (5) Documented monitoring and evaluation designs coupled with identification of program modifications envisioned to improve effectiveness, inform program adjustment and new stormwater management initiatives, and achieve intended outcomes.
The workshop recommended elements to be included in a national-level guide on monitoring and assessing program effectiveness; in the meantime, those elements on their own are a useful guide for monitoring and evaluation programs:
(1) Framing key monitoring/evaluation questions and designing approaches to fit the questions. This could include alternative program designs with advice on assembling the components (e.g., receiving water, outfall, and in-system water monitoring; BMP effectiveness evaluation; activity tracking of treatment and source controls; modeling) to inform assessment of the overall program and demonstrate effectiveness. This should show how to build a sound analytical framework up front to demonstrate why a set of approaches will likely succeed in assisting program management and defining or tracking compliance and effectiveness.
(2) Considerations for adapting monitoring/evaluation questions over time, with a reasonable limit on the creation of new questions.
230 Improving Stormwater Program Monitoring, Evaluation, Tracking, and Reporting: Workshop Report and Recommendations. U.S. EPA Region 9, October 12, 2018. https://www.epa.gov/sites/production/files/2018-
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(3) Examples of successful local approaches that better associate monitoring/evaluation design with program effectiveness, compliance assessment, and the ability for program managers to make management decisions.
(4) Suggested evaluation methods to assess BMP effectiveness over time. (5) Available monitoring technologies and best practices that clearly link the monitoring objectives with the experimental design, including all aspects of data collection, data management, data analysis, and reporting formats. (6) Compiling monitoring program costs to help show the wide range of program expenditures, how monitoring data are used to inform program decisions, and how to better articulate the value of the data. (7) Explanations of modeling approaches and how they can relate to monitoring and adaptive management.
The workshop identified the following performance metrics to establish more meaningful MS4 program evaluation and monitoring:
(1) Percent of impervious areas addressed for stormwater management. (2) Condition or “cleanliness” of streets as an indicator of potential pollution from runoff.
(3) Percent of impervious surface areas directly connected to the storm drain system.
(4) Modeled volume of flow to the storm drain system used as a surrogate for pollutant contributions.
(5) Percent of waterbodies in a community that are fishable and swimmable. (6) Loss of beneficial use of a waterbody (e.g., beach closure downtimes). (7) Measured level of awareness of citizens regarding stormwater pollution and the community’s program.
(8) Increasing number of illicit discharges reported annually; indicating heightened awareness.
(9) Budget for stormwater infrastructure improvements.
The workshop identified an overall need for permitting authorities to improve the clarity of monitoring and evaluation permit requirements and to use thoughtful methods/designs that will yield actionable data. Further, some participants noted that permits may be able to provide choices or flexibility for monitoring approaches and help incentivize better designs. Flexible permit requirements can support adaptation of monitoring to evolve with program Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
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needs, with the potential questions to be addressed changing over time.
Critically, for such an approach to succeed, it may be necessary to discontinue some monitoring efforts to redirect resources to more pertinent or valuable monitoring. The Water Board intends to pursue that recommended approach, as this Permit has replaced the Creek Status Monitoring and Stressor/Source Identification Projects Subprovisions with LID Monitoring which has been identified as a more useful program at this point in time, and the Water Board will consider changes to LID Monitoring in the subsequent permit to further increase its utility.
C.8-3 Provision C.8 requires Permittees to conduct water quality monitoring, including ambient monitoring, MS4 outfall monitoring and monitoring of receiving waters, in accordance with 40 CFR 122.44(i) and 122.48. One purpose of water quality monitoring is to demonstrate the effectiveness of the Permittees’ stormwater management actions pursuant to this Permit and, accordingly, demonstrate compliance with the conditions of the Permit. Other water quality monitoring objectives under this Permit include:
(1) Assess the chemical, physical, and biological impacts of urban runoff on receiving waters;
(2) Characterize stormwater discharges;
(3) Assess compliance with Total Maximum Daily Loads (TMDLs) and Wasteload Allocations (WLAs) in impaired waterbodies;
(4) Assess progress toward reducing receiving water concentrations of impairing pollutants;
(5) Assess compliance with numeric and narrative water quality objectives and standards;
(6) Identify sources of pollutants;
(7) Assess stream channel function and condition, as related to urban stormwater discharges;
(8) Assess the overall health and evaluate long-term trends in receiving water quality; and
(9) Measure and improve the effectiveness of the Permittees’ urban runoff control programs and the Permittees’ implemented BMPs.
C.8-4 Monitoring programs are an essential element in the improvement of urban runoff management efforts. Data collected from monitoring programs can be assessed to determine the effectiveness of management programs and practices, which is vital for the success of the iterative approach, also called the “continuous improvement” approach, used to meet the Maximum Extent Municipal Regional Stormwater Permit NPDES Permit No. CAS612008 Order No. R2-2022-0018 Attachment A: Fact Sheet
Attachment A - 184
Practicable (MEP) standard where applicable. When water quality data indicate that water quality standards or objectives are not being met, particular pollutants, sources, and drainage areas can be identified and targeted for urban runoff management efforts. The iterative process in Provision C.1 related to water quality standards exceedances could potentially be triggered by monitoring results. Ultimately, the results of the monitoring program must be used to focus actions to reduce pollutant loadings to comply with applicable WLAs and protect and enhance the beneficial uses of the receiving waters in the Permittees’ jurisdictions and the San Francisco Bay.
C.8-5 Under the CWA, NPDES permits must contain conditions that require both monitoring and reporting of monitoring results to ensure compliance (see 33 U.S.C. § 1342(a)(2); 40 C.F.R. § 122.44(i).). The regulations provide, in pertinent part:
In addition to the conditions established under
§122.43(a), each NPDES permit shall include conditions
meeting the following requirements when applicable. . . . (i) Monitoring requirements. In addition to § 122.48, the following monitoring requirements:
(1) To assure compliance with permit limitations,
requirements to monitor:
(i) The mass (or other measurement specified in the
permit) for each pollutant limited in the permit;
(ii) The volume of effluent discharged from each outfall; (iii) Other measurements as appropriate including
pollutants in internal waste streams under § 122.45(i); pollutants in intake water for net limitations under §
122.45(f); frequency, rate of discharge, etc., for
noncontinuous discharges under § 122.45(e); pollutants
subject to notification requirements under § 122.42(a); and pollutants in sewage sludge or other monitoring as
specified in 40 CFR part 503; or as determined to be
necessary on a case-by-case basis pursuant to section
405(d)(4) of the CWA.
(iv) According to sufficiently sensitive test procedures (i.e., methods) approved under 40 CFR part 136 for the
analysis of pollutants or pollutant parameters or required under 40 CFR chapter 1, subchapter N or O. . . .