CITY OF OAKLAND
2 5 0 F R A N K H. O G A W A P L A Z A O A K L A N D, C A L I F O R N I A 9 4 6 1 2 – 2 0 3 3
Oakland Public Works Department (510) 238-4470
G. Harold Duffey TDD (510) 238-7644
Director
November 16, 2021
Submitted via email to: [email protected]
Michael Montgomery
Executive Officer
SF Bay Regional Water Quality Control Board
1515 Clay Street, Suite 1400
Oakland, CA 94612
Dear Mr. Montgomery,
Thank you for the opportunity to provide written comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 (MRP). Oakland also appreciated the opportunity to provide verbal comments at the public workshop hearings on the Tentative Order that were held in mid-October. We look forward to a significantly revised Tentative Order that addresses the concerns that were raised by Board members and testimony presented by Oakland and other permittees during those hearings.
Oakland shares in the Water Board’s desire for a permit that significantly improves water quality in our local waterways and the San Francisco Bay, however, it is critical that the permit be written in a way that is feasible to implement from a technical and cost perspective within the five-year permit term. To accomplish significant water quality benefits within the fiscal constraints municipalities such as Oakland face, requirements in the reissued MRP must allow cities to prioritize actions that have the greatest positive impact on water quality with the most reasonable burden on public resources. Oakland, like many other cities, is facing unprecedented economic and humanitarian impacts and challenges as a result of the COVID-19 pandemic that are likely to continue far beyond this permit term. The size, diverse demographics, and social economic status of our city presents challenges that we must address in our respective watersheds with very limited funding. To achieve this the permittees need for more flexibility to improve water quality in an effective, efficient, and equitable way for our communities.
The attached table is comprised of comments on the key issues for Oakland. If adopted as currently written, the provisions we address in the table will result in a significant economic, staffing resources, and technical challenge burdens with arguably very limited additional water quality benefit resulting from some of the provisions. As requested by Board Chair McGrath, we have included suggested revisions that we believe will most benefit water quality and are achievable in the next permit term. Many of our recommendations were supported by some or
Date: November 16, 2021
Re: Oakland Comments on the MRP Tentative Order P a g e | 2
all of your Board members at the workshop hearings. These same concerns have also been shared in verbal and written form with your staff on numerous occasions during the last several years of permit negotiations.
We appreciate your consideration of the concerns we have expressed and look forward to our continued work together with the Water Board to achieve our mutual goal of improved water quality.
Sincerely,
G. Harold Duffey
Director
Copy:
• Dr. Thomas Mumley, Assistant Executive Officer, SFBRWQCB • Keith Lichten, Chief, Watershed Management Division, SFBRWQCB • Ryan Russo, Director, Oakland Department of Transportation • William Gilchrist, Director, Oakland Department of Planning, Building, and Neighborhood Services
• Reginald D. Freeman, Fire Chief, Oakland Fire Department • Kristin Hathaway, Acting Assistant Director, Oakland Public Works Department, Bureau of Design and Construction, and Watershed and Stormwater Manager
Attachment: City of Oakland’s Comments on the Tentative Order of the Municipal Regional 2021-11-16
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.2. Municipal Operations
Municipal
Maintenance
C.2.a, b, and
c
These provisions increase reporting
requirements.
The increased reporting requirements in this
provision and throughout the Tentative Order are a
burden to municipal staff not justified by the
minimal potential water quality improvements.
Keep the reporting requirements the same as in
MPR 2. C.2 compliance information should be
kept by the Permittees and available on request.
C.3 – New Development and Redevelopment
New
Development
and
Redevelopment
- General
C.3 Provision C.3 – Lowers thresholds for Regulated
Projects, adds Regulated Project Categories, and
removes LID reduction credits for many
Regulation Projects that currently qualify as
Special Projects.
Many of the revised requirements in this Provision
would increase the City’s compliance costs and
workloads and would impose burdensome and
costly procedures on project applicants. The City’s
role is to implement the residents’, businesses’, and
City’s vision for preservation, enhancement,
growth, and revitalization of the City’s
neighborhoods through adopted planning
frameworks. This provision establishes a water
quality regulation that imposes a significant cost
and hinders the city’s ability to address other
important concerns such as the ongoing housing
crisis, business retention and development, urban
sprawl reduction and growth patterns, and the
wishes of our residents and businesses.
Retain MRP 2.0 requirements. The current
requirements are successfully expanding LID
design and more than 200 acres of impervious
has been treated by green stormwater
infrastructure through private and public projects
in Oakland.
C.3.b. Regulated
Projects
C.3.b.i.(2) Any Regulated Project that was approved with no Provision C.3. stormwater treatment
requirements under a previous MS4 permit and
that has not begun construction by the effective
date of this permit, shall be required to fully
comply with the requirements of Provisions
C.3.c. and C.3.d.
An exemption for private projects with an
approved vesting tentative map is granted in
this provision.
The City of Oakland’s Capital Improvement Program
(CIP) is on a 2-year budget, and projects that are
already planned and budgeted but not built will be
difficult to alter.
It is impractical to require stormwater treatment
requirements for Capital Improvement Projects
already approved and budgeted. Budgets and
authorizations for these projects are set years in
advance.
Include language more appropriate to public
projects, for which a vesting tentative map is not
a consistent trigger, should be added such as,
“For the Permittee's Regulated Projects, the
effective date shall be the date their governing
body or designee approves initiation of the
project design.”
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.3.b. Regulated
Projects
C.3.b.ii (2) Other Development: Drops non-SFH Regulated Projects threshold from 10,000 to 5,000 square
feet.
It is more efficient for Permittees to focus on larger
systems that convey greater water quality
improvements instead of scattered small systems.
Retain 10,000 square foot threshold.
C.3.b. Regulated
Projects
C.3.b.ii (3) Other Redevelopment: Drops threshold from
10,000 to 5,000 sf. Exclusions were moved from
this provision to C.3.ii (1)(b).
This conflicts with plans for downtown, transit
corridors, and commercial areas where
development patterns are set via public
engagement process and Council-approval. These
plans call for dense development to address
projected housing needs and the ongoing housing
crisis, while reducing urban sprawl and its negative
effects on the environment and water quality by
imposing more regulations on smaller projects that
add housing in more densely populated areas.
Retain 10,000 square feet threshold for Other
Redevelopment.
C.3.b. Regulated
Projects
C.3.b.ii (4)(c) New or Widening Road Projects: Drops
threshold from 10,000 to 5,000 square feet and
adds new impervious trails that are greater than
or equal to 10 feet wide or are creek-side (within
50 feet of top of bank) to list of Regulated
Project types.
Increases costs and regulatory hurdles for
municipal Capital Improvement Projects designed
to increase non-motorized transportation.
Require these projects to implement site design
measures rather than install additional
stormwater treatment systems. Proposed
alternative language: Direct stormwater runoff
away from creeks, towards the outboard side of
levees, to adjacent vegetated areas, or other non-
erodible permeable areas, that are at least half as
large as the contributing impervious surface area.
Ensure that the pervious area soils infiltrate
adequately to handle the additional run-on.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.3.b. Regulated
Projects
C.3.b.ii (5) Road reconstruction projects that add/replace an acre or more of contiguous impervious
surface are now considered Regulated Projects
that would be required to incorporate specific
LID measures.
This requires treatment within limited Right-of-Way
(ROW) spaces that are often very constrained
above and below ground. Old cities such as Oakland
often have infrastructure underground which
constrains and complicates the underground areas
that would otherwise be prioritized for Green
Stormwater Infrastructure.
The duration of project cycles, and the target
compliance date of June 30, 2027, to treat 10 acres
of impervious area, could be a challenge if funding
isn’t in place to support GSI through traffic safety
related grant sources. Transportation funding
sources often cannot be used for landscaping, let
alone GSI. The additional requirements will require
resources at all levels of planning, design,
construction, and maintenance.
Incorporating GSI into Road Reconstruction
Projects should only be required where it is
technically feasible. Technical infeasibility should
not mandate alternative compliance for which a
suitable location/project may not be possible to
identify.
Include incentives in the permit to encourage
municipalities to work with developers to add GSI
to the ROW, where feasible, and to provide
incentives to developers to do so.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.3.b. Regulated
Projects
C.3.b.ii (6)
Removes exclusion for Single Family Homes
(SFHs). This provision would require SFHs that
add/replace 10,000 square feet (sf) impervious
to meet the treatment sizing requirements in
provisions C.3.c. and C.3.d., and Permittees
would be required to verify ongoing O&M of
more technical stormwater treatment facilities.
In Oakland, these projects are primarily in the
hillside areas with large-lot zoning. It is impractical to require hillside SFHs to treat all stormwater for
houses and driveways on a 60% up-sloped lot.
Pumping stormwater upslope to a treatment area
would be energy-intensive and pumps are prone to
failure.
Occupants of SFHs are not well equipped, generally,
to maintain more technical stormwater treatment
facilities. Site design measures, such as
disconnected downspouts, pervious pavement, and
well-drained vegetated and other self-retaining
areas, are easier to maintain and provide water
quality benefits. Additional stormwater treatment
will not carry significant water quality improvement
to warrant the cost and complexity of this new
requirement.
It is cost prohibitive and impractical for permittees
to create and oversee an O&M inspection program
for stormwater treatment systems at a small
number of SFHs. Attempting to cover such
programs through permit fees and enforcement
fines would result in net losses for the City and
would place more pressure on an already-strained
workforce.
Retain exclusion of SFHs from the definition of
Regulated Projects. In this case, SFH’s would need
to comply with C.3.i., Required Site Design
Measures for Small Development and
Redevelopment Projects and Smaller Detached
Single-Family Home Projects. In Oakland,
creekside property development projects are
already required to implement post-construction
creek protection measures to protect the creek,
its banks, the riparian vegetation, wildlife,
surrounding habitat, and the creek's natural
appearance.
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Special Projects
Category C
C.3.e.ii (5) Category C Special Project Criteria (Affordable Housing) - Replaces previous TOD special project
with Affordable Housing special project
category. Criteria require housing to be deed-
restricted for 55 years with rent/mortgage rates
no greater than 30% of income for “Very Low
Income” households. Affordable Housing Special
Projects can receive Affordable Housing,
Location, Density, and Minimized Surface
Parking Credits.
This Provision is not aligned with the California
Density Bonus Law Government Code 65915 (CA
Density Bonus law) and does not recognize the
importance and complexity of building affordable
housing, and the need to remove, not add,
development impediments. The CA Density Bonus
law:
1. Refers to the California Health & Safety
Code for its definition of average median
income (AMI) categories and defines some
affordable housing income and rent limits
differently. This conflicts with the
provision’s affordable housing definition.
2. Requires cities to grant a density bonus to
projects with affordable housing. The level
of affordability to get a density bonus is a
minimum of 10% of the total units for
Moderate and Low-income levels and 5%
for Very-low income. The density levels in
this provision do not align.
3. Acknowledges that Moderate income units
and Low-income units are crucial, where
this provision does not.
4. Encourages affordable housing by requiring
cities to grant concessions and waivers to
zoning requirements, such as open space or
setbacks, which removes space for LID
treatment on the project site. Expressly, a
project could qualify for development
concession/waivers but not qualify as a
Category C. This would cause legal and
compliance issues.
5. Encourages private developers to subsidize
and include affordable housing units, which
Expand the provision’s interpretation of
Affordable Housing to include “lower” and
“moderate” income households and to be
inclusive of seniors, transitional foster youth,
disabled veterans, and homeless people.
Continue to support smart growth, high density,
or transit-oriented development Special Projects
as in MRP 2.0.
Reduce the Category C thresholds and eliminate
the ½-mile of existing/planned transit hub and
the ≤ 10% at-grade surface parking for projects
without any affordable housing.
Grant total exemption for Affordable Housing
projects that incorporate affordable housing and
are subject to the CA Density Bonus Law.
Maintain development density credits from MRP
2.0 Incorporate the ABAG Regional Housing Needs
Allocation (RHNA 2013) plan and revise the
provision to incentivize affordable housing
subsidized by private development. Partnerships
with private developers are crucial since public
funding sources are insufficient to meet
affordable housing needs and goals.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative cost $600,000 - $700,000 each, in market-
rate projects. The ABAG Regional Housing
Needs Allocation (Draft RHNA 2021) plan
requires the City to build slightly more low
and moderate units, when considered
together, than very low-income units.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.3.j Green
Infrastructure
Planning and
Implementation
C.3.j.ii (2) New provision for treating non-regulated
projects with GSI. Numeric target of 3
acres/50,000 population with a cap of 10 acres.
1. With the threshold for Regulated Projects
changing from 10,000 to 5,000 square feet
(sf), there will be fewer “voluntary”
projects that will count towards achieving
this target. For example, the City is
currently designing three CIP projects that
would be Regulated Projects under the
proposed permit and could not be used to
meet a 10-acre target.
2. Requiring the city to achieve this target
within the 5-year permit term is infeasible
given how few projects will be able to
count towards meeting this provision and
the timeline with building capital projects.
Oakland would have to build between 20-
32 new, non-regulated, capital projects,
below 5,000 square feet, within 5 years to
meet this metric.
3. Total amount and division between
permittees does not seem logical and no
rationale was provided.
4. Green street retrofit projects are very
costly. As an example, the City of Union
City estimated that their H Street retrofit
project cost approximately $660,000 per
acre treated. At that rate, treating 10 acres
would cost $6.6 million. The Water Board
should conduct a cost benefit analysis to
determine if that level of expenditure is
appropriate for the minimal water quality
benefits that would be achieved.
Delete Provision C.3.b.ii.(5) (Other Road Projects)
so that there are non-regulated projects in the
public ROW where green infrastructure could be
implemented.
MRP 3 should require implementation of GI Plans
and the continuation of the “no missed
opportunities” provision.
Any targets for implementing green
infrastructure in non-Regulated Projects should
be part of a long-term plan that considers green
infrastructure projects implemented in the public
right of way from 2009 through 2030 and 2040.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.3.j. Green
Infrastructure
Planning and
Implementation
C.3.j.v (1)(b) Tracking and mapping tools must include a component that is available to the public and
advertised on each Permittee's website. At
minimum provide: description of design,
location, land use type, and area treated. If tool
tracks additional information not provided to
the public, report that information to the Water
Board.
These reporting requirements are excessive. If
detailed information is needed, it can be provided
upon request. This level of reporting has no water
quality nexus and is an excessive administrative
exercise. This takes permittees’ focus away from
implementing measures to protect and improve
water quality.
Delete this provision to reduce reporting burden
C.4 – Industrial and Commercial Site Controls
C.4.b. Business
Inspection Plan
C.4.b.ii (1) (a) The following are some of the functional aspects of businesses and types of businesses that shall
be included in the Inspection Plan:
(a) Sites with the following functions
Outdoor waste and trash storage,
handling, and disposal areas
Fueling Areas
Adding outdoor trash could be interpreted as
adding every business that has a dumpster. It is not
feasible for municipalities to inspect every business.
The inspection program should be focused on those
businesses whose activities have the likely potential
for non-stormwater discharges.
Adding fueling areas could be interpreted as adding
inspections of all business parks where fueling
concierge service has been added and would
require knowing in advance where and when this
service will be provided. Once again, this could add
significantly to the City’s compliance workload with
little to no benefit to water quality.
Delete the added language or clarify that the
functional aspects of businesses listed in this
provision should be considered when selecting
businesses to be inspected. The permit language
must be revised to clarify that not all businesses
with outdoor dumpsters must be inspected. In
addition, clarify that Permittees are not required
to inspect businesses that hire a concierge fueling
service.
C.4.d.
Inspections
C.4.d.iii.(1)(h) Permittees shall make the list of facilities required to have coverage under the Industrial
General Permit, but that have not filed for
coverage, available upon Water Board request.
The list shall include the date when the facility
was first identified and the date when it was
most recently inspected or evaluated.
Permittees have been providing the list of
businesses that should file for an NOI for more than
a decade in their respective FY annual reports.
Water Board staff have the information they need
to contact these businesses.
Retain MRP 2.0 language for Permittees to report
on business that should have filed for an NOI in
their respective FY annual reports. Remove
requirement to report when the facility was first
identified and when it was most recently
inspected or evaluated.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.4.d
Inspections
C.4.d.iii
(1)(a)-(h)
Requires additional and detailed Annual
Reporting. The Permittee must summarize the
same inspection findings multiple times in
slightly different ways.
Provision increases and includes duplicative
reporting requirements without water quality
nexus.
Retain MRP 2.0 reporting requirements and note
where reports could be requested as needed.
At a minimum, simplify the reporting to remove
redundancies and to allow permittees to track
enforcement actions by inspection, not by the
discrete number of potential and actual
discharges fully resolved.
C.5. - Illicit Discharge Detection and Elimination
C.5.d IDDE
Tracking and
Case Follow-up
C.5.d.ii (2) (b) The water quality spills, dumping, and complaint tracking system shall contain the
following information:
2. Complaint information:
b. Date and time response to
illegal dumping report or
complaint started (may exceed 3
business days if the illegal
dumping does not present an
immediate threat to water
quality)
Do not require permittees to track illegal dumping
not related to an illicit discharge or illicit discharge potential (imminent threat of discharge to RW).
Illegal dumping is handled by different group (e.g.
solid waste) and details of the City’s response to
illegal dumping is reported through the MRP annual
report as part of the C.10 Trash Control section.
Delete language referring to reporting on illegal
dumping.
C.5.e IDDE
Control of
Mobile Sources
C.5.e.ii (1) (e) Each Permittee shall implement a program to reduce the discharge of pollutants from mobile
businesses.
(1) The program shall include the following:
e) Inspection of mobile businesses
Excluded items a) – d) as the comment does not
refer to those provisions.
Language implies that mobile businesses will be
inspected regularly. Mobile businesses are
inspected on an "as needed" basis when an illicit
discharge complaint is received, or an inspector
identifies an issue in the field.
Revise C.5.3.ii.(1)(e) as follows:
(e) Inspection of mobile businesses when reports
of illicit discharges are received.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.5.f. IDDE MS4
Map
C.5.f.i Permittees shall identify information missing
from the current MS4 maps and develop a plan
and schedule to compile additional storm sewer
system information, including component
locations, size or specifications, materials of
construction, and condition. This information
will be used to update Permittee maps and
databases.
The purpose of these maps is for public education
and responding to illicit discharges. Requirements
for these two purposes should be separated.
Detail of specifications, materials of construction
and condition are not necessary for public
education or determining illicit discharge response.
The task to identify missing information is too large
and not feasible for Oakland on a citywide basis as
that task alone could easily cost several million
dollars. Rather, Oakland suggests updating maps
and databases with storm sewer system
information as needed and according to a plan and
schedule.
Delete requirement of additional detail of
specifications.
Proposed alternative language:
C.5.f.i. Permittees shall develop a plan and
schedule to update storm sewer system
information as needed
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.8 – Water Quality Monitoring
C.8.e. Trash
Monitoring
C.8.e.iii.(2) Provision C.8.e.iii.(2) requires that for each outfall not sampled directly (in the outfall or at
the end of the outfall before it discharges into
the receiving water, or, directly in the receiving
water), Permittees must conduct indirect
sampling at 12 outfall sites, with four monitoring
events upstream and downstream of the outfall
per year per site instead of three.
Outfall monitoring poses many unique challenges,
including difficulty in finding accessible and safe
sites, and obtaining permits to install end-of-pipe
monitoring devices within a short timeline (e.g., 90
days between the effective date of the permit and
the time when monitoring is required to start). It is
likely that upstream/downstream monitoring will
be the only feasible trash monitoring option for
many locations. The estimated cost of collecting
144 samples per year (upstream and downstream),
estimated at over $1 million per year countywide,
is unreasonable. In addition, California and the Bay
Area is undergoing an extreme drought. It is easily
possible that the minimum number of annual wet
weather monitoring events could not be met in a
given year as a result of an insufficient number of
trash runoff-generating rain events.
1. Decrease the number of required samples for
upstream/downstream monitoring to the
same as outfall or instream monitoring, as
this type of monitoring is only allowed if the
first two methods are infeasible.
2. Please clarify what alternate steps
permittees should take s if there are not
enough qualifying storm events to sample in
a given year. Also, please clarify what
alternate steps permittees should take if
there are not enough qualifying outfalls to
sample using shoreline/streambank
sampling.
C.8.e.iv,
C.8.e.v.(1),
C.8.e.iii.(1)
Permittees are required to form and annually
convene a Technical Advisory Group (TAG) to
assist with the development and
implementation of a scientifically-sound trash
monitoring to review and provide input on
ongoing monitoring, site selection, analysis
methods, results, and conclusions. Permittees
are required to submit an initial Trash
Monitoring Plan by September 30, 2022, and to
conduct trash monitoring annually starting
October 1, 2022.
The timeline to convene a TAG, develop a
monitoring plan, incorporate feedback from the
TAG, and set up all logistics for trash monitoring
(including securing any necessary permitting)
within 90 days of the effective date of the permit is
unreasonable. The permit requirement to submit a
Trash Monitoring Plan must be technically feasible
in light of the amount of time required to
reasonably complete plan. It is fundamentally
unfair to require permittees to anticipate permit
terms that may or not be carried forward in the
adopted version of the permit or require
permittees to expend resources in anticipation of a
permit requirement that may not be adopted.
To allow for adequate time for the development
and approval of the Trash Monitoring Plan, revise
the submission date of the initial Trash
Monitoring Plan from September 30, 2022, to
July 1, 2023. Please allow for Trash Monitoring to
being on October 1, 2023.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.8.e. Trash
Monitoring
C.8.e.v.(1).(e) Permittees are required to include a power analysis in their Trash Monitoring Plans to
ensure the number, type, and frequency of
monitoring sites and events are sufficient to
produce statistically valid monitoring results
that will reliably answer the management
questions, using a confidence level of 95 percent
and a power level of 80 percent.
Power analysis should be designed based on
appropriate sampling methods and baseline data to
inform an appropriate design. The number of
samples needed to achieve a high statical power
depends on the variability of the data and the
acceptable error rate (or minimum detectable
change). Trash loadings can be highly site specific
and may not follow a statistical distribution that
would lend itself to a power analysis. There is no
clear path to compliance through adoption of this
requirement.
Remove the requirement to conduct a power
analysis for the Trash Monitoring Plan.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.10 – Trash Load Reduction
C.10.a Trash
Reduction
Requirements
C.10.a.i Schedule - Permittees shall reduce trash
discharges from 2009 levels, described below, to
receiving waters in accordance with the
following schedule:
a. 90 percent by July 1, 2023.
The City will not be able to meet 90% compliance
milestone without the use of existing source
control credits. The City has expended significant
resources in not only passing ordinances but in
creating organizational arrangements to ensure
compliance of product bans from applicable
businesses and pursing enforcement when
necessary. Enforcement of the bans help to prevent
low trash generating areas from morphing into
moderate trash generating, reduce the likelihood of
trash entering receiving waters from wind or litter
pathways, and prevent the plugging of trash
capture devices installed in storm drain inlets.
Elimination of these credits would discourage the
meaningful and effective implementation of these
ordinances.
Retain existing source control credits
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C.10.a Trash
Reduction
Requirements
C.10.a.i Schedule - Permittees shall reduce trash
discharges from 2009 levels, described below, to
receiving waters in accordance with the
following schedule:
b. 100 percent by July 1, 2025.
The Tentative Order of the Municipal Regional
Permit 3.0 includes removal of several compliance
credits by June 30, 2025, for which the City of
Oakland currently receives 35% reduction credit
including: C.10.b.iv. - Source Control (10%); C.10.f.i. - Creek and Shoreline Cleanup (10%); and C.10.g. -
Direct Trash Discharge Controls (15%).
As a result, by June 30, 2026, the City will need to
make up an additional 35% of trash reduction
credit or be in non-compliance. To achieve
compliance with C.10, the City will need to not only
continue our existing trash reduction efforts (e.g.,
volunteer cleanups, illegal dumping abatement)
and but will also need to install up to 4,000 full
trash capture devices throughout the City in high
and very-high trash generating areas. This could
cost up to $7 million in capital costs with an annual
maintenance cost of up to $1.2 million.
The City has already implemented the most easily
achievable trash capture strategies, therefore,
meeting the additional compliance targets will be
increasingly difficult and expensive. It is challenging to locate large full trash capture devices due to
existing utilities, hydrology and flooding concerns,
maintenance access, and other infrastructure
barriers. Small full trash capture devices are
coupled with an extensive and expensive
maintenance burden and can cause flooding if not
properly maintained. We will also have to ensure
that our trash loading in drainage areas does not
get worse or that could further reduce compliance
credits.
Extend timeline for 100% reduction deadline to
one-year after the effective date of MRP 4.0.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative
Due to timeline for when municipalities adopt
budgets and Caltrans timeline for CIA and FCO
projects with localities, extend the 100% reduction
timeline to FY 2028 (the first year of MRP 4.0).
C.10.a Trash
Reduction
Requirements
C.10.a.ii With the 2024 Annual Report, Permittees shall submit a revised Trash Generation Area Map
that includes trash management areas, as well
as private land drainage areas (See Provision
C.10.a.ii.b) that will be retrofitted with full trash
capture devices, or equivalent, by July 1, 2025.
The updated trash generation map shall include
the locations and associated drainage areas of
full trash capture systems, and other trash
control actions, and shall highlight any revisions
or changes from the previous map(s). Maps may
be used to illustrate progress toward achieving
the trash reduction requirements in Provision
C.10.a.i.
Providing all of the required information on one
map that shows implementation of other control
measures beyond full trash capture will overload
the document. The City of Oakland has numerous
on-land trash control programs including street
sweeping, on-land trash cleanups, Adopt-a-Spot
program, business improvement districts, and
illegal dumping abatement. These control measures
cannot be easily displayed unless the City submits
multiple maps at neighborhoods levels. The City is
already providing a narrative of what enhanced
measures are being implemented at the TMA that
sufficiently illustrates the work being conducted
In addition, while changes in trash load reduction
within a TMA can be calculated, it cannot be
illustrated on a map in any meaningful manner.
As in MRP 2.0, require trash generation rate
maps that include:
TMAs, full trash capture devices, full trash
capture drainage areas, and baseline trash
generation rates.
Submit all required information in either:
narrative form; or a series of maps. Provide
flexibility for municipalities to submit the
required information in formats that are the most
easily interpretable.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.10.a Trash
Generation Area
Management
C.10.a.ii.b By July 1, 2025, Permittees shall ensure that lands draining to storm drain inlets that they do
not own or operate, but that are plumbed to
Permittees’ storm drain systems in Very High,
High, and Moderate trash generation areas are
equipped with full trash capture systems or are
managed with trash discharge control actions
equivalent to or better than full trash capture
systems. The efficacy of the latter shall be
assessed with visual assessments in accordance
with Provision C.10.b.ii. If there is a full trash
capture device downstream of these lands that
is designed, operated, and maintained to control
trash discharges from that land area, no other
trash control is required.
Under MRP 2, Permittees spent a great deal of
effort to map private land drainage areas greater
than 10,000 ft2 that will be retrofitted with full
trash capture devices, or equivalent. The Tentative
Order has removed the size threshold resulting in
Permittees having to expend significantly more
resources to both map and retrofit these lands.
In addition, The City has over 700 private land areas
subject to Provision C.10.a.ii.b. Approximately 50%
of these parcels are in census tracts most impacted
by poverty, low education attainment, and rent-
burden, disparities that are highly correlated with
identity factors such as race, disability, age, and
single-parent status (from Oakland's Equity Map -
OakDOT Geographic Equity Toolbox (arcgis.com).
These tracts are Oakland's highest priority
neighborhoods for reducing disparities and
providing equitable opportunities in all key areas of
well-being, including clean streets and sidewalks.
It is unclear if the City has the authority to require
private property owners to install full trash capture
devices in the absence of any triggering action that
would allow a municipality to require installation of
full trash capture devices as part of conditions of
approval associated with a permit. Furthermore,
regulating these private land areas through an
inspection/assessment/enforcement program will
create a significant burden to the City at a cost of
approximately $200k per year.
Rather than requiring private property owners to
install full trash capture devices or using other
trash control methods whose effectiveness would
require conducting OVTAs, allow Permittees to
have a third option for managing trash on PLDAs.
This third option could be an enhanced
commercial and industrial inspection
program the requirements of which could be
developed in the first year of MRP 3.0
Also, keep the 10,000 square foot minimum area
from MRP 2. Permittees have gone through and
extensive GIS analysis to determine the
properties that are covered by this
provision. Removing this threshold would create
a significant additional effort with minimal
benefit.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.10.b
Demonstration
of Trash
Reduction
Outcomes
C.10.b.v Permittee jurisdiction-wide actions to reduce
trash at the source, particularly persistent trash
items other than those addressed under
previous Permits (foam food ware and single-
use plastic bags) may be valued toward trash
load reduction compliance by up to ten percent
load reduction total for all such actions. To claim
a load percentage reduction value, Permittees
must provide substantive and credible evidence
that new source control actions are being
implemented jurisdiction-wide and reduce trash
by the claimed value. A Permittee may support
its claimed source reduction value with
reference studies from other jurisdictions
provided that it also provides credible evidence
that the chosen source control action would
achieve comparable trash reduction if
implemented in the Permittee’s jurisdiction.
A jurisdiction-wide source control load reduction
value cannot be claimed after June 30, 2025.
However, Permittees may demonstrate and
claim full trash capture equivalence of a source
control in specific trash generation areas or in
combination with other controls in an area if the
control or combination of controls are
documented, assessed, and verified in
accordance with Provision C.10.b.iii.
Existing credit for source control should be retained.
Permittees have expended significant resources not
only passing ordinances but then creating
organizational arrangements to ensure compliance
of product bans from applicable businesses and
pursuing enforcement when necessary. Enforcement
of the bans help to prevent low trash generating
areas from morphing into moderate trash generating
areas, reduce the likelihood of trash entering
receiving waters from wind or litter, and prevent the
plugging of trash capture devices installed in storm
drain inlets.
Removing the credit after June 30, 2025,
disincentivizes developing and passing any new
source control measures and does not acknowledge
the on-going significant effort required to enforce
the existing bans.
In addition, for some Permittees, it may be
impracticable to use other trash control measures to
otherwise recoup 10% and implement measures to
meet the additional 10% reductions.
Maintain 10% reduction as maximum credit
throughout MRP 3 for existing and new source
controls. Eliminate the source control phase
out by the June 30, 2025, date.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.10.b.vi Partial Trash Reduction – Curb Inlet Screens – Studies conducted by the Permittees during the
previous permit term (Order No. R2-2015-0049,
as amended) assessed the benefit of other
control measures, such as curb inlet screens in
combination with street sweeping, in reducing
the amount of trash discharged through MS4s.
However, additional information is needed to
determine the effectiveness of curb inlet screens
in reducing trash within a given trash
management area. Permittees may demonstrate
through further assessment and study, as
described below, that the installation and
appropriate maintenance of curb inlet screens,
accompanied by street sweeping at an
appropriate frequency, within Moderate trash
generation areas can effectively reduce the
trash generation rate to Low under the following
conditions
The study adequately demonstrated that curb inlet
screens installed in moderate areas would result in
a low trash generation rate. The level of additional
work is not necessary. The LA Water Board gave
credit for curb inlet screens for multiple
municipalities and there should be statewide
consistency on this issue.
Remove requirement for augmenting the curb
inlet screen study and afford full trash capture
equivalence for areas with moderate trash
generation outfitted with inlet screens as low
trash generating.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.10.f. Optional
Trash Load
Reduction
Offset
Opportunities –
Creek and
Shoreline
Cleanup
C.10.f.i
A Permittee may offset part of its Provision
C.10.a trash load percent reduction
requirement by conducting cleanup of creek
and shoreline areas. The creek and shoreline
cleanup efforts should be conducted at a
minimum frequency of twice per year, and
sufficient to demonstrate sustained
improvement of the creek or shoreline area.
The maximum offset that may be claimed is
ten percent. Offsets for creek and shoreline
cleanups will no longer be applicable after
June 30, 2025.
Offsets for Creek and Shoreline Cleanups should
continue through the 100% reduction target date.
Oakland's award-winning Adopt a Spot program
supports individuals, neighborhood groups, civic
organizations, and businesses in ongoing cleaning
and greening of parks, creeks, shorelines, storm
drains, streets, trails, and other public spaces. In
fiscal year 2020/2021 over 512 thousand gallons of
trash were removed by volunteers. The City has
invested significant resources to build and support
the large network of volunteers that clean up trash
and foster environmental stewardship among
Oakland’s youth and residents. Without receiving
ongoing trash reduction credit for these efforts, it
will be difficult to justify expending the same
amount of resources towards volunteer efforts.
MRP 3.0 should not remove the trash control
credits for Creek and Shoreline Cleanups.
Remove the expiration date of July 1, 2025, for
creek and shoreline cleanups. Extend to the
revised 100% reduction target date.
C.10.f Optional
Trash Load
Reduction
Offset
Opportunities -
Direct Trash
Discharge
Controls
C.10.f.ii Permittees with an existing DDCP approved
during the Previous Permit shall submit an
updated DDCP for approval no later than
September 1, 2022, in order to continue
claiming trash load percent reduction offsets.
Permittees with approved DDCP under MRP 2 have
been updating the Regional Water Board on
implementation of their DDCP in progress reports
submitted as part of their MRP Annual Reports.
These progress reports include status updates on
implementation measures, accounting of trash
reduction offsets, and new planned actions. It is a
duplication of effort for Permittees with approved
DDCP under MRP 2 to resubmit their DDCP for
reapproval when this information is readily
available in each MRP Annual Report.
Permittees with an existing DDCP approved
during the Previous Permit shall submit an
updated DDCP for approval no later than
September 1, 2022, do not need to resubmit their
DDCP in order to continue claiming trash load
percent reduction offsets.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.10.f Optional
Trash Load
Reduction
Offset
Opportunities -
Direct Trash
Discharge
Controls C.10.f.ii.b.i
The DDCP shall prioritize providing housing and
services to people experiencing unsheltered
homelessness who are living near receiving
waters.
Housing and social services provided to people
experiencing unsheltered homelessness is
prioritized by many factors including health and
those in targeted populations. In addition, the City
of Oakland considers multiple factors when
considering interventions at homeless
encampments such as safety (e.g., proximity to
moving vehicles, criminal activity), health (e.g.,
excessive garbage, human waste, vectors), location
(e.g., proximity to receiving waters, damage to
public infrastructure), and size. Proximity to
receiving waters can only be one of many factors
used when prioritizing housing and services for
people experiencing unsheltered homelessness.
The DDCP shall make efforts to prioritize
providing housing and services to people
experiencing unsheltered homelessness who are
living near receiving waters.
C.10.f Optional
Trash Load
Reduction
Offset
Opportunities -
Direct Trash
Discharge
Controls
C.10.f.ii.b.ii
The DDCP shall prioritize addressing illegal
dumping that occurs near receiving waters.
The City implements a performance standard of
addressing 85% of illegal dumping abatement
requests within three business days. In fiscal year
2020-2021, the City addressed 89% of the over
59,000 service requests within three business days.
The City considers multiple factors when
prioritizing where to address illegal dumping
including size and traffic safety and should not be
expected to prioritize based solely on proximity to
receiving waters.
The DDCP shall make efforts to prioritize
addressing illegal dumping that occurs near
receiving waters.
C.10.g.
Reporting
C.10.g.xii.1 For Permittees whose DDCPs address significant discharges from unsheltered homeless
populations, the following information for the
current year, and for each prior year of the
Permit term: The estimated number of people
experiencing unsheltered homelessness in their
jurisdiction; the estimated number of people
experiencing unsheltered homelessness living
within 500 feet of receiving waters…
The City relies on the Alameda County Homeless
Census and Survey Comprehensive Reports to
provide an estimate of the number of people
experiencing unsheltered homelessness. These
reports do not geolocate census surveys; therefore,
there is no way for the City of Oakland to estimate
the number of people experiencing unsheltered
homelessness living within 500 feet of receiving
waters.
For Permittees whose DDCPs address significant
discharges from unsheltered homeless
populations, the following information for the
current year, and for each prior year of the
Permit term: The estimated number of people
experiencing unsheltered homelessness in their
jurisdiction; the estimated number of people
experiencing unsheltered homelessness living
within 500 feet of receiving waters…
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary City of Oakland Issue(s) with TO Text Proposed Alternative C.11 – Mercury Controls
C.11.d. Mercury
Collection and
Recycling
Implemented
throughout the
Region -
Reporting
C.11.d.iii In each of the 2023 through 2026 Annual
Reports, Permittees shall report on efforts to
promote recycling of mercury-containing
products and efforts to increase effectiveness of
these recycling efforts. Permittees shall also
report on the mass of mercury contained in
recycled material throughout the region using
the methodology contained in load reduction
accounting system described in the Fact Sheet.
The data collected by the mercury recycling
program is insufficient to estimate the mass of
mercury contained in recycled material. In Alameda
County, the data collected is the volume of large
containers filled.
Delete the italicized text. Require reporting only
on the efforts or promote recycling and the total
volume or weight of material collected.
Property
Identification
and Abatement
–
Implementation
Level
C.11/C.12.b.ii Permittees shall investigate the following acreage of likely PCBs source properties.
Alameda County: 2620 acres
Allow credit for areas investigated in FY 2020/21
and FY 2021/22, as this area is not being credited
under MRP 2.
Permittees shall investigate the following acreage
of likely PCBs source properties beginning in FY
2020/21 through the end of the permit term.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative C.12 – Polychlorinated Biphenyls (PCBs) Controls
C.12.b. Program
for Source
Property
Identification and
Abatement –
Reporting
C.11/C.12.b.iii Permittees are required to report
progress on the acreage of land areas
investigated, including progress toward
investigation of 100% of the old
industrial land use in each of the 2022
through 2026 Annual Reports.
Permittees should also report annually
on the ongoing enhanced O&M activities
associated with all past contaminated
property referrals.
It will be infeasible for permittees to achieve this
requirement within 3 months of the adoption of
the permit.
The reporting for this provision should begin after the first year of monitoring has occurred. Please replace
2022 with 2023, as follows, “In each of the 2022 2023
through 2026 Annual Reports.”
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C.12.c. Program
for Treatment
Control Measures
in Old Industrial
Areas- Task
Description
C.11/C.12.c.i Provision C.12.c.i states that Alameda
Permittees have 9,374 acres of Old
Industrial land use draining to an MS4
that have not been redeveloped or
treated with green stormwater
infrastructure (GSI) or other treatment
controls. The provision as written
requires Permittees to submit plans and
schedules for implementing treatment
controls for stormwater addressing 937
acres of land classified as old industrial
within Alameda County (or to reduce
PCBs loads by 170 g/year).
ACCWP has performed a detailed desktop
analysis of stormwater treatment opportunities
in old industrial areas that shows the permits
contention that there are 9,374 acres of Old
Industrial land use draining to an MS4 that have
not been redeveloped or treated with green
stormwater infrastructure (GSI) or other
treatment controls is inaccurate.
As shown in the table below, there are 12,760
acres of old industrial area within Alameda
County, comprised of parcels and right-of-way
(ROW). Of this area, 7,892 acres are either
already treated, discharge directly to the Bay,
have been shown to have low concentrations of
PCBs, are separately regulated, or are areas that
are not controllable by Permittees (e.g.,
railroads). This information was sent to Water
Board staff, but the accurate data was not
included in the Tentative Order.
Description Area
(acres)
Old Industrial Area (Parcels and ROW) 12,760
Treated Old Industrial Area 2,577
Old Industrial Referred Source
Property Area 72
Direct Discharge Properties 251
Old Industrial Area Monitored and
Found to be Low PCBs 2,400
Non Jurisdictional (LLNL, Coast Guard
Island, Alameda NAS, and Caltrans
ROW)
1,823
Old Industrial Apparent Railroad Parcel 769
Remaining Old Industrial Area 4,869
Revise the remaining old industrial area value for
Alameda County in Provision C.12.c.i to 4,869 acres.
Revise the permit to incorporate a reasonable level of
effort for MRP 3.0, given the cost of compliance, the
limited staff resources available (both Permittee and
RWB staff), and the ongoing economic impacts due to
COVID. A reasonable level of effort would be to direct
permittees to address the currently identified moderate areas (124 acres). Additional moderate areas would be
addressed as they are identified through the C.12.b
monitoring process.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative
C.12.c. Program
for Treatment
Control Measures
in Old Industrial
Areas- Task
Description
C.12.c. Program
for Treatment
Control Measures
in Old Industrial
Areas—
Implementation
Level
C.11/C.12.c.i The Tentative Order states that in
choosing locations for treatment
controls, Permittees should focus on
catchments containing known or
suspected source areas or evidence of
moderate to high PCBs soil
concentrations (generally soil/sediment
concentrations greater than 0.3 mg
mercury/kg or 0.2 mg PCBs/kg).
Please see the ACCWP’s table of comments for
additional comments on this provision that are
supported by the City.
1. The provision would require treatment of
runoff from areas with moderate
concentrations of PCBs (between 0.2
mg/kg and 1.0 mg/kg, while Federal and
State regulatory screening levels for PCBs
in soils range from 0.23 mg/kg for
residential uses to 0.58 mg/kg for
commercial and industrial land uses
(based on the DTSC-modified screening
levels).
2. There is much variability in the
distribution of PCBs within old industrial
areas. Existing data shows low
concentrations of PCBs in much of old
industrial areas.
3. Ongoing monitoring conducted per
Provision C.12.b would identify additional
areas with moderate to high levels of
PCBs. Sediment data from old industrial
areas in the MRP area show that
approximately 15% of samples are in the
moderate range. If these data are
representative of the remaining old
industrial area, then of the 2,620 acres to
be investigated, approximately 393 acres
may be found to be moderate through
the ongoing monitoring.
Do not require cleanup levels of PCBs that the state is allowing to remain on cleanup sites.
Treatment control measures should not be required to
be implemented on areas that do not have elevated
levels of PCBs, as the objective is to reduce loads of
PCBs.
Revise this provision to provide time for private
development to reduce PCB loads. The Permittees’ GSI
Plans predicted that approximately 280 acres of old
industrial area may be retrofit or redeveloped within
the MRP 3.0 permit term. In addition, approximately
1,000 acres may be addressed through full trash
capture devices constructed within the Permittees’
ROW, which would treat about 286 acres.
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative
4. The cost of implementing distributed LID-
type treatment controls on 937 acres
(assuming $175,000/acre) would be
$163,975,000. Oakland would need to
treat 356 acres over the permit term, and
this would cost approximately
$62,300,000. The cost for treatment is an
unreasonable economic burden to place
on Permittees for a low reduction in PCBs
loads.
5. The provision does not reflect that PCBs
in Old Industrial areas largely reside on
private properties. Of the 12,760 old
industrial acres, approximately 81% are
private parcels. Of the 4,869 acres of
remaining old industrial area,
approximately 70% is private and 32% is
under the control of the Permittees.
C.12.c. Program
for Treatment
Control Measures
in Old Industrial
Areas –
Implementation
Level
C.11/C.12.c.ii Treatment control systems must be
designed and sized consistent with
Provision C.2.d (Numeric Sizing Criteria
for Stormwater Treatment Systems).
Although this should be true for C.3.b projects,
retrofit projects (i.e., projects that are
implemented to address MRP or TMDL
requirements without a new development or
redevelopment trigger), should be allowed to size
facilities as needed in constrained situations or
projects may not go forward in these areas.
Eliminate this sizing requirement for projects that are not subject to Provision C.3.b.
C.12.c. Program
for Treatment
Control Measures
in Old Industrial
Areas - Reporting
C.11/C.12.c.iii(1) In the 2022 Annual Report, Permittees shall submit plans and schedules for
implementing treatment control and
diversion measures. This reporting shall
include maps of the areas to be treated,
the acreage of catchments to be treated,
This submittal date is only three months after the
effective date of the permit, which does not give
adequate time for developing the plan and
schedule.
Revise the permit to require an annual submittal a
treatment plan for the acres of old industrial area
shown to have elevated levels of PCBs by the
monitoring conducting in the previous Water Year with
the March 31st Monitoring Report. The first plan would
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative and a description of design and sizing
features all treatment devices and
stormwater diversion facilities
implemented for each treated
catchment.
be submitted by March 31, 2023, for all areas found to
be moderate through the date of permit adoption.
C.12.e. Program
for Controlling
PCBs from
Electrical Utilities
C.12.e.iii.(6) Within 12-months of the Water Board
transmitting to the Permittees
information from the non-municipally
owned electrical utilities, Permittees
shall submit a report discussing the
following, to the extent possible given
any data limitations: (a) locations of the
PCBs-containing OFEE still in service, (b)
previous locations of PCBs-containing
OFEE, and (d) opportunities to improve
non-municipally owned electrical
utilities’
standard operating procedures for spill
response, reporting, cleanup, and
sampling and analysis.
RWB staff stated that they felt this requirement
was not necessary. The permittees agree.
Remove this requirement.
C.12.g. Manage
PCB-Containing
Materials and
Wastes During
Building
Demolition
Activities – Task
Description
C.12.g.ii.(1) Permittees shall implement their
established protocol to ensure that
buildings are tested for PCBs-containing
material prior to issuing a demolition
permit.
The permit does not allow exemption in case of
emergency demolition. For example, the Oakland
Municipal Code (O.M.C) Section 15.34.060 states:
“Notwithstanding any other provision of this
Chapter, no building or demolition permit shall be
issued by the City for any affected project prior to
approval of the WRRP by the WRR Review Official.
Approval shall not be required if an emergency
demolition is required to protect public health or
safety pursuant to Section 15.36.080.”
Revise the Tentative Order to allow for buildings that
are demolished in an emergency situation to forgo
testing.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
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Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative
O.M.C Section 15.36.080 – Exceptions states, “A
demolition permit may be obtained without first
obtaining a building permit where …
A. The structure to be demolished is declared
an unsafe structure or a public nuisance by
the Building Official or the City Council.”
An example of such a structure is one that has
been severely damaged by fire.
C.12.g. Manage
PCB-Containing
Materials and
Wastes During
Building
Demolition
Activities –
Implementation
Level
C.12.g.ii.(3) Permittees shall inspect demolition sites pursuant to Provision C.6 to ensure that
effective construction pollutant controls
are used to prevent discharge into the
MS4.
This requirement should only apply to applicable
buildings with elevated levels of PCBs.
Permittees shall inspect applicable structure demolition sites that have reported elevated levels of PCBs
pursuant to Provision C.6 to ensure that effective
construction pollutant controls are used to prevent
discharge into the MS4.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
11/15/2021 28 of 33
Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative C.12.g. Manage
PCB-Containing
Materials and
Wastes During
Building
Demolition
Activities –
Implementation
Level
C.12.g.ii.(4) Permittees shall enhance their
construction site control program to
minimize migration of PCBs from
demolition activities into the MS4.
Enhancements may include inspecting
demolition sites monthly during
demolition activities in the dry season
(May – September) and requiring the
demolition contractors to sweep the
project sites and the streets around the
property with street sweepers that will
effectively remove sediment and dust.
Implementation of enhancements shall
begin no later than May 2023.
This requirement should only apply to applicable
buildings with elevated levels of PCBs.
Permittees shall enhance their construction site control program to minimize migration of PCBs from demolition
activities into the MS4 at applicable structure
demolition sites that have reported elevated levels of
PCBs.
C.12.i. Fate and
Transport Study of
PCBs: Urban
Runoff Impact on
San Francisco Bay
Margins -
Reporting
C.12.i.iii The Permittees shall submit in the 2023
Annual Report a workplan describing the
specific manner in which these
information needs will be accomplished
and describing the studies to be
performed with a preliminary schedule.
The Permittees shall report on status of
the studies in their 2023 Annual Report.
As this work is conducted through the RMP, this is
not necessary.
Reduce Reporting Burden: Remove requirement for
workplan and status update in 2023.
C.15 – Exempted and Conditionally Exempted Discharges
Emergency
Discharges of
Firefighting Water
and Foam.
Attachment A:
Fact Sheet –
All of C.15.b.iii and
Attachment A: Fact
Sheet, Section VI.A.,
Page A-96
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
The Oakland Fire Department (OFD) disagrees
with the Water Board’s assertion that emergency
firefighting activities contribute a significant
source of pollutants to waterways.
OFD maintains that these activities should remain
exempt from the state’s stormwater regulations.
Exempt firefighting activities from the state’s
stormwater regulations. Review language and revise to
recognize the differences between population-based
permittees and non-population-based permittees role
in implementation.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
11/15/2021 29 of 33
Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative Permit Provisions,
Discharge
Prohibition
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).).
Federal Stormwater Regulation 40 CFR § 122.26
only requires regulation of discharges from
firefighting where such discharges are significant
pollutant sources to waterways.
Before constraining emergency firefighting
activities with prescriptive permit language, and
to reduce regulatory confusion, an evidence-
based approach should be used to define
“significant source of pollutants.”
C.15.b. Emergency
Discharges of
Firefighting Water
and Foam
C.15.b.iii.(4)(i) - (ii) Requires storm drains to be plugged for temporary storage to allow
dechlorination prior to discharging
emergency firefighting water to storm
drains, provided that immediate
emergency response operations and/or
public health and safety are not
impacted.
This provision will cause discharge flows to flood
streets and could flood adjacent properties and
flow into downstream inlets. This is because a
typical fire will have multiple lines flowing at 150-
1,000 gallons per minute for a range of 10
minutes to hours. These flow rates produce tens
of thousands of gallons of water within a few
minutes. Trying to contain this water would
interfere with emergency response operations
and would strain task-saturated firefighting
personnel.
Delete this requirement to prevent this unintended
consequence.
C.15.b. Emergency
Discharges of
Firefighting Water
and Foam
C.15.b.iii.(4)(iii) Requires proper disposal of water and foam according to jurisdictional
requirements.
This will lead to regulatory confusion with federal
regulations that exempt water from emergency
firefighting activities. Oakland Municipal Code
(OMC) 13.16.030 follows these federal
regulations.
These prescriptive BMPs should be removed, and fire
agencies should continue implementing current
voluntary water quality protection BMPs until
September 30, 2024, when Provision C.15.b.iii.(2)
requires new BMPs developed by a regionwide
Firefighting Discharges Working Group (Working
Group), to go into effect.
C.15.b. Emergency
Discharges of
C.15.biii (5) Reporting requirements for Emergency
Discharges of Firefighting Water and
Foam
The tracking and reporting requirements in this
provision are excessive, contain errors, and some
are infeasible such as the requirement to track
Reporting requirements should instead be developed
by the Working Group.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
11/15/2021 30 of 33
Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative Firefighting Water
and Foam
and report the quantity and rate of water and
foam concentrate discharged to storm
drains/waterways and the point of discharge.
C.17 – Discharges Associated with Unsheltered Homeless Populations C.17 Discharges
Associated with
Unsheltered
Homeless
Populations
C.17.a.i.(2).(b) Identify regional and/or countywide
efforts and implementation actions to
address discharges associated with
homelessness (including how those
efforts and actions have been affected
by unsheltered homeless population
growth). Include recommendations for
engaging in these efforts and
incorporating discharge-reduction
strategies that also help meet the
unsheltered population’s clean water
needs; and
Meeting the unsheltered population’s clean water
needs is beyond the purview of a stormwater
program.
Remove this text from the provision.
C.17 Discharges
Associated with
Unsheltered
Homeless
Populations
C.17.a.i.(2).(c) Identify actions taken during the COVID- 19 pandemic to reduce the spread of the
virus in homeless populations, such as
temporarily housing homeless people in
hotels, that may have had a water
quality benefit. Permittees shall consider
the practicability of such actions for
longer-term implementation.
This adds to the overall reporting burden and
does not add to the effectiveness of a permittee’s
homeless encampment management program.
Delete this reporting requirement that is beyond the
purview of the MRP.
C.17 Discharges
Associated with
Unsheltered
Homeless
Populations
C.17.a.ii (1) Map identifying unsheltered including
encampments and other areas where
unsheltered homeless congregate
relative to storm drain inlets, streams,
rivers, flood control, and other surface
water bodies. Joint map may be
Identifying specific locations where persons are
living should not be required as it is a significant
administrative burden and with the mobility of
homeless individuals, it is not possible to track in
any way that could guarantee a particular level of
accuracy.
Delete this requirement and only require submittal of
bi-annual point in time surveys.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
11/15/2021 31 of 33
Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative submitted for where Permittees are
working together to address discharges
from unsheltered in FY 2023
The every-other year point-in-time surveys report
on populations by Census tract that are produced
by cities provide the best available data. Those
reports should meet this requirement while at the
same time protecting the privacy of the unhoused
population.
C.20 – Cost Reporting
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.(iv).
Flexibility is needed as part of the framework.
Cost reporting is a complicated process. Flexibility
would allow more meaningful submissions.
See the Alameda Countywide Clean Water Program
comments on this provision in their MRP 3.0 Tentative
Order comments table. The City support the ACCWP
comments on Provision C.20.
C.21 – Asset Management
C.21 Asset
Management
C.21 Each Permittee shall develop and
implement an Asset Management Plan
in order to ensure the satisfactory
condition of all hard assets 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,
Provision C.21 requires Permittees to develop and
implement an asset management system to
assure functioning of hard assets. Throughout the
MRP 3 negotiation process Permittees
understood that the asset management
requirements would solely include those
Permittee-owned stormwater treatment systems
constructed to meet C.3 regulated projects, C.3
green infrastructure (and related C.11/C.12 green
infrastructure provisions), and C.10 full trash
capture devices.
Reduce the reporting burden by limiting assessment
management requirements to C.3 regulated projects,
C.3 green infrastructure (and related C.11/C.12 green
infrastructure provisions), and C.10 full trash capture devices
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
11/15/2021 32 of 33
Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative Unincorporated Contra Costa County,
and the Contra Costa County Flood
Control and Water Conservation District
Requirements
C.21 Asset
Management
C.21.b.i.(3)(b).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.
The performance should be based on the design
specification and not the stormwater volume and
pollutant load reduction
Reduce the reporting burden by deleting “minimum
performance level(s), including an assessment of
stormwater volume and pollutant load reduction,
necessary to comply with the provisions, including
applicable water quality based effluent limitations and receiving water limitations”
Replace with “performance level of asset functioning as designed”
Asset
Management
C.21.b.v and
C.21.c.iii
Climate Change
Adaptation Report
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 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.
In sum, Tentative Order includes a substantial set
of new requirements, including C.21 along with
C.17, C.2, and significant additions to existing
programs, C.3, C 11, C.12, C.15. Adding a Climate
Change Adaptation Report is a significant and
unnecessary burden during this permit term. To
adequately meet this requirement would require
an expenditure of effort that could easily cost
millions of dollars.
Reduce the reporting and potential extensive cost
burden to permittees by deleting the requirement to
develop and submit a Climate Change Adaption Report.
Permittees are already expending significant resources
to mitigate the impacts of climate change and would be
significantly burdened by the Water Board inserting a
duplicative requirement in their NPDES permit.
C.22 – Annual Reports
C.22 Annual
Reports
C.22.a The Permittees shall submit Annual
Reports electronically in all cases by
September 30 of each year. Each Annual
Report shall report on the previous fiscal
year beginning July 1 and ending June
30. The annual reporting requirements
Annual Reports are already submitted to SMARTS
and certified by the Duly Authorized
Representative. The additional report submittal
due on October 15 of each year is unnecessary.
To reduce the reporting burden, delete the additional
report submittal requirement.
City of Oakland’s Comments on the Tentative Order of the Municipal Regional Stormwater NPDES Permit No. CAS612008 November 16, 2021
11/15/2021 33 of 33
Section Heading Provision(s) MRP 3.0 Tentative Order (TO) Text or Summary
City of Oakland Issue(s) with TO Text Proposed Alternative are set forth in Provisions C.1 – C.21. An
electronic copy, including a verified
electronic signature (e.g., Adobe e-
signature or DocuSign) or accompanied
by a wet signature page submitted in
hard copy, of each Annual Report shall
be submitted by October 15 of each
year.