City of Culver City, California
Agenda Item Report
Meeting Date: 8/13/12 Item Number: A-4
CITY COUNCIL AGENDA ITEM: Adoption of Los Angeles Permit Group’s Position
and Comments on the Draft Countywide Municipal Separate Storm Sewer System
Permit.
Contact Person/Dept.: Kaden Young/PW-
EPO
Phone Number: (310) 253-6445
Fiscal Impact: Yes [] No [x] General Fund: Yes [] No [x]
Public Hearing: [] Action Item: [x] Attachments: [x]
Commission Action Required: Yes [] No [] Date: _______________
Public Notification: Meetings and Agendas – City Council (08/09/12)
Department Approval:
Charles D. Herbertson (08/07/12)
City Attorney Approval:
Carol Schwab (by H. Baker) (08/08/12)
Chief Financial Officer Approval:
Jeff Muir (08/08/12)
City Manager Approval:
John M. Nachbar (08/09/12)
RECOMMENDATION:
Staff recommends the City Council support the Los Angeles Permit Group’s (LA
Permit Group) position and recommendations on the draft countywide Municipal
Separate Storm Sewer System Permit (MS4 Permit).
BACKGROUND:
The Municipal Separate Storm Sewer System (MS4) is a structural system that is
based on regional floodwater management and uses both natural and altered water
bodies to achieve flood management goals. The extensive system conveys
stormwater and non-stormwater across municipal boundaries where it is
commingled within the MS4 and then discharged to a receiving water body.
In general, a MS4 Permit has a term of 5 years with the possibility of continuing if a
new one is not adopted on time. In 2001, the Los Angeles Regional Water Quality
Control Board (LARWQCB) issued the first MS4 Permit for Los Angeles County that
regulates discharges and established Best Management Practices (BMPs) aimed at
the goal of reducing pollution from both storm water and dry weather urban runoff. A
new permit was adopted in 2006 and remains in effect to this day. This draft MS4
Permit, once approved and adopted by the LARWQCB, will replace the current
permit.
City of Culver City, California
Agenda Item Report
The LA Permit Group is a consortium of municipalities that was formed to ensure
Los Angeles’ stormwater is managed properly, both for flood control and water
quality protection. The LA Permit Group was formed, to accomplish several
important objectives, including:
• Promoting constructive collaboration and problem-solving between the regulated
community (municipalities) and the LARWQCB;
• Assisting in development of a new MS4 Permit that is capable of integrating the
protection of water quality with other watershed objectives in a cost-effective and
science-based manner;
• Focusing limited municipal resources on implementation of water quality
protection activities that are efficient, effective and sustainable.
Over 62 (of the 88) Los Angeles County municipalities have actively participated in
the effort to develop negotiation points and provide comments throughout the MS4
Permit development process since May 2011.
The process for providing comments on the new MS4 consisted of the LARWQCB
staff developing working proposals of key provisions of the new permit and releasing
them to the municipalities one section at a time. This piece-meal process made it
difficult to understand how the key provisions interacted with each other. It was only
after the full draft MS4 Permit was issued in June 2012, that the interaction (or lack
of interaction) of the provisions could be seen. Each working proposal section was
issued with only a few weeks for stakeholders to review and provide comments.
Although comments were provided, it is unclear how LARWQCB staff addressed the
comments. In some cases, changes were made and in other cases, no changes
were made. In both cases, no explanation was provided by the LARWQCB.
Municipalities were given a 45 day public comment period for the draft MS4 Permit
in its entirety (over 500 pages) after its release. The LA Permit Group and some of
its member cities, including Culver City, made a request to the LARWQCB for a time
extension, but the request was denied in the attached letter dated August 1, 2012
(see Attachments 1 and 2).
DISCUSSION:
Receiving Water Limitations (RWL) consist of all applicable numeric or narrative
water quality objectives or criteria, or limitations to implement the applicable water
quality objectives or criteria, for receiving waters as contained the Basin Plan, water
quality control plans or policies adopted by the State Water Resources Control
Board. The MS4 Permit includes three main provisions related to RWL. First, it
states that discharges from the MS4 that cause or contribute to an exceedance of
RWL are prohibited. Second, it states that discharges from the MS4 of stormwater
or non-stormwater, for which a municipality is responsible, shall not cause or
contribute to a condition of nuisance. Third, municipalities shall achieve these two City of Culver City, California
Agenda Item Report
prohibitions “through timely implementation of control measures and other actions to
reduce pollutants in the discharges in accordance with the stormwater management
program and its components and other requirements of the MS4 Permit including
any modifications.”
The most significant concern of the draft MS4 Permit is the language governing
RWL. Recent court decisions have created a new interpretation of the RWL that
creates a liability for the municipalities without a commensurate increase in
protection of water quality. On July 13, 2011, the United States Court of Appeals for
the Ninth Circuit issued an opinion in Natural Resources Defense Council, Inc., et
al., v. County of Los Angeles, Los Angeles County Flood Control District, et al.
(NRDC v. County of LA) that determined that a municipality is liable for MS4 Permit
violations if its discharges cause or contribute to an exceedance of a water quality
standard. This represents a fundamental change in interpretation of policy and
contrasts sharply with the LARWQCB’s own understanding as expressed in a 2002
letter from then-Chair Francine Diamond answering questions about the 2001 MS4
Permit in which she articulated the collective understanding that violation of the
Permit would occur only when a municipality fails to engage in a good faith effort to
implement the iterative process to correct the harm. In light of the Ninth Circuit
Court’s decision and based on the significant monitoring efforts being conducted,
many municipal stormwater Permittees, including Culver City, would likely be
considered to be in non-compliance with their MS4 Permits as soon as it is adopted.
At that point, municipalities would be immediately vulnerable to third-party lawsuits
even though municipalities have little control over the sources of pollutants that
create the vulnerability.
The LA Permit Group argued to the LARWQCB that it is unfair and poor public policy
to put cities in non-compliance on day one of the MS4 Permit without the opportunity
for the cities to develop a plan of action, develop source identification, and
implement a plan to address the concern. The LA Permit Group has requested that
this language be revised on several occasions including written comments,
workshop comments, and meetings with LARWQCB’s staff; however, this issue has
not yet been resolved in the draft MS4 Permit.
Alternative approaches are available to address the LARWQCB’s concerns and
maintain the intent of the language in the approach. The California Association of
Stormwater Quality (CASQA) has developed draft language that should be used in
lieu of the current language. The language provides specificity in compliance and
subjects Permittees who are not engaged in good faith in the iterative process to
enforcement without unnecessary and counterproductive liability for the majority of
Permittees who are diligently attempting to implement stormwater programs.
Staff recommends the City Council join the position of the LA Permit Group to
attempt to persuade LARWQCB to give the municipalities additional time to review
the MS4 Permit and work together to revise the RWL language.
City of Culver City, California
Agenda Item Report
FISCAL ANALYSIS:
According to the Los Angeles County BMPs Decision Support System model, it will
cost municipalities $17-42 billion to comply with current water quality standards. The
cost to handle Ballona Creek for bacteria only is estimated to be $1-2 billion, and
Culver City’s share is estimated to be $40-80 million. Bacteria are only one of a few
pollutants that can be present in Ballona Creek. Currently, Culver City spends
approximately $175,000 a year during the ambient monitoring phase. Once the
BMP implementation phase begins, projections show that the City will spend in
excess of $1 million annually to comply with the requirements contained in the
proposed 2012 MS4 Permit.
ATTACHMENTS:
1. Letter from Sam Unger, denial of time extension
2. Comment Letter from Culver City to LARWQCB on the Draft MS4 Permit
Attachment
3. LA Permit Group’s comments on draft MS4 Permit.
MOTION:
That the City Council:
Adopt the LA Permit Group’s position and comments on the draft MS4 Permit.
MEETING DATE: 08/13/12
AGENDA ITEM: Support for Los Angeles Permit Group's Position and
Comments on the Draft Countywide Municipal
Separate Storm Sewer System Permit.
ATTACHMENTS
Pages
1 Letter from Sam Unger, Denial of Time Extension
1-2
2 Comment Letter from Culver City to Los Angeles Regional Water 3-4
Quality Control Board on the Draft Municipal Separate Storm
Sewer System Permit
3 Comment Letter from LA Permit Group on the Draft MS4 Permit 5-21 Los , Angeles Re g knell Water Qua Control B oard
July 30, 2012
RESPONSE TO REQUESTS • FOR EXTENSION OF REVIEW PROCESS AND
COMMENT PERIOD FOR THE TENTATIVE LOS ANGELES COUNTY MS4 PERMIT
Los Angeles County MS4 Permittees and Interested Persons:
The Regional Board Staff has received Many letters requesting a 180-working day -extension to
develop the permit arid an additional 45-day comment period to review a revised tentative
permit. Beginning in May 2011 the Regional Board has worked diligently to provide an open
arid transparent permit development process, realizing the importance Of having Permittees and
other interested persons closely involved.
The Regional Board has provided myriad opportunities for Perrnittees and other interetted
persons to present issues and concerns to the Board and Board staff through three beard
workshops, five staff-level workshops, and one to two meetings per month Since . November
2011 with the LA Permit Group Negotiating Committee, In addition, Regional Board staff has
met frequently With Several Other entities including the City of Los Angeles, Los Angeles County
Flood Control District, NRDC, LOS Angeles Waterkeeper, and Heal the Bay, throughout the
permit development process to ensure all interested persons had opportunities to vet their
concerns.
Furthermore, Regional Board staff distributed to Perimittees and interested persons five working
proposals of the permit provisions, covering the principal sections of the permit to facilitate the
understanding of the permit on a section by section basis. For each working proposal, Board
staff provided Permittees and interested parties with a three-week Written comment period as
well as the opportunity to discuss the working proposals with the Regional Board at Board
workshops held on April 5, 2012 and May 3, 2012. The draft permit was revised to address
many of the written and oral comments received on the working proposals, The tentative LA
County MS4 Permit, which was released for pubrio comment on June 6, 2012, reflects these
changes. Regional Board staff has made every effort to involve Permittees and interested
persons to address concerns and comments during this 15-month development process,
Regional Board members directed staff to adhere to a permit development schedule that would
ensure that the permit would be considered by the Board at its regularly scheduled September
Board meeting, In order to meet this directive, and in light of the significant number of
opportunities for engagement and comment on the draft permit that have been provided over
the past 151 months, I am not granting requests for an extension of the comment cleadline.
N4ARCA MeN,ANiAN, C,t-IAIR I Ui, Exh.cul -Pdri aFFiZZER
-320 Wi44 1:9.4 LA County MS4 Perrnittees
-2 - July 30, 2012
and Interested Persons
Regional Board staff will continue to be available to meet and confer on any permit provisions
prior to the September board hearing. If you have any questions . call Renee Purdy at
(213) 576-6622 or lvar Ridgeway at (213) 620-2150.
Sincerely,
5,e4".7,44e-e
Samuel Unger
Executive Officer Charles D. Herbertson, RE, LS
Public Works Director and
City Engineer
9770 Culver Boulevard, Culver City, California 90232
PUBLIC WORKS DEPARTMENT
(310) 253-6421
FAX (310) 253-6430
Damian Skinner
Environmental Programs and Ops. Manager
July 23, 2012
Mr. Ival. Ridgeway
Regional Water Quality Control Board, Los Angeles
320 W. 4
th
Street, Suite 200
Los Angeles, CA 90013
(Electronically to LAM542012@waterboards.ca.gov )
Subject: Comment letter — Draft NPDES Permit (Draft Order) for MS4 Dischargers
within the Los Angeles County Flood Control District
Dear Mr. Ridgeway:
The City of Culver City (City) appreciates the opportunity to provide comments on the
subject draft order for the Los Angeles region. The City has actively participated with
other municipalities through the Los Angeles Permit Group (LAPG) to understand and
comment on the complex provisions of the draft permit. Attached to this letter is the
comment letter the 1APG will submit as a whole and which Culver City agrees with and
supports. In addition, we would like to highlight a few issues of critical importance to
the City of Culver City.
The City did not receive adequate time to review the draft permit in its entirety. The
Regional Board released parts of the draft permit and labeled them as staff working
proposals, but those sections changed once the entire permit was released. Because of
the many interrelationships between the different sections of the permit, it is critical to
provide an adequate opportunity to review the permit as a whole. In addition, the City
and the LAPG did not receive a response to many of our comments from Regional Board
staff so we are unaware of the impact of our efforts to engage in a consensus building
process. The City respectfully requests a one-year extension to allow time for a
continuing collaborative and iterative process whereby several drafts can be reviewed
and subjected to comments, comments can be addressed or responded to and we will
Culver City Employees take pride in effectively providing the highest levels of service to enrich the quality of life for the community by building on
our tradition of more than seventy-five years of public service, by our present commitment, and by our dedication to meet the challenges of the
future.
PRINTED ON FaCYCLED PAPER Page 2
have adequate opportunity to obtain input from City policy makers as the final permit
takes shape.
The City recognizes the need to continue to make significant progress toward
attainment of water quality standards. However, we also believe that no regulatory
benefit accrues from the State establishing permit provisions that result in the potential
of immediate non-compliance for Permittees. For these reasons, the City requests
revision of the draft MS4 Permit as described in the letter dated July 23, 2012 from the
LAPG and for the reasons stated above, a one-year extension to the permit adoption
process.
Sincerely,
Charles D. Hrl?ertson
Public WorkkOirector/City Engineer
PRINTED ON RECYCLED PAPER 161.: ai.n. . 11:14.'IPPs
• • 1
July 23, 2012
Mr. Ivar Ridgeway
California Regional Water Quality Control Board, Los Angeles Region
320 West 4th Street, Suite 200
Los Angeles, California 90013
• Electronically to :
LAMS42012@waterboards.ca.ciov
rourdy@waterboards.ca.qov
iridgewayPwaterboards.ca.qov
SUBJECT: Comments on the Draft NPDES Permit (Draft Order), Order No. R4-2012-XXXX; NPDES Permit
NO. CAS004001, for MS4 Dischargers within the Los Angeles County Flood Control District
The LA Permit Group (LAPG) appreciates the opportunity to provide comments on the subject Draft Order for
the Los Angeles region. The Los Angeles Permit Group is a consortium of municipalities that was formed to
ensure Los Angeles' stormwater is managed properly, both for flood control and water quality protection (LA
Permit Group agencies list provided in Exhibit A).
The LA Permit Group was formed, to accomplish several important objectives, including:
• Promoting constructive collaboration and problem-solving between the regulated community
(municipalities) and the Los Angeles Regional Water Quality Control Board (LARWQCB);
• Assisting in development of a new NPDES Permit that is capable of integrating the protection of water
quality with other watershed objectives in a cost-effective and science-based manner;
•
Focusing limited municipal resources on implementation of water quality protection activities that are
efficient, effective and sustainable.
Over 62 Los Angeles County municipalities have actively participated in the effort to develop negotiations
points and provide comments throughout the M54 NPDES Permit development process. Comments and
negotiations points are developed by each of the LA Permit Group's four Technical Sub-Committees
(Development Programs, Reporting & CORE Programs, Monitoring, and TMDLs), which are then approved by
the LA Permit Group. The group's consensus is represented by the Negotiations Committee. This comment
letter and accompanying exhibits reflect a collaborative effort to develop a permit that will lead to water
quality protection in a cost effective manner. We have a number of major and minor concerns with the Draft
Order. Our comments are organized around the following major issues: LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPOES Permit NO. CAS004001
Page 2
• Receiving Water Limitations
• TM DLs
• Monitoring
• MCMs
• Watershed Management Program
• Cost Implications
Our recommendations for each issue are noted in bold in this letter and our detailed comments on the Draft
Order are provided in the Exhibits to this letter (Exhibit B).
We also want to note that the Draft Order contains a number of errors and inconsistencies. This is not
surprising given the sheer magnitude of the draft document, which is the basis for our multiple requests for
more time to review the more than 500 pages of Permit. As stated in our letter dated July 2, 2012
(incorporated in this letter as attached — Exhibit C) and in Public Comments at the July 12, 2012 Regional Board
Meeting, the comment deadline of July 23, 2012 is far too short to address all the potential issues and
concerns. On several occasions, the Regional Board staff has used the Staff Working Proposal process and
workshops as a justification for the expeditious manner in which the Draft Order was developed and the
curtailed 45-day public comment period. This justification is misplaced for several reasons:
• Each Staff Working Proposal was issued with only a few weeks for stakeholders to provide
comments on what may be considered the most significant increase in public effort to address
water quality issues in the past 20 years;
• Although we provided comments on the working proposal, it is unclear to us how the Regional
Board staff addressed our comments. In some cases changes were made and other cases no
changes were made. In both cases no explanation was provided. As a result we have attached our
previous comment letters for the record (ExhibitD );
• By rolling out different working proposals at different times it was difficult to understand how the
key provisions interacted with each other. It was only after the full draft Order was issued did we
see the interaction (or lack of interaction) of the provisions;
•
It is the LA Permit Group's goal to cooperatively develop the MS4 Permit to support the Regional
Board's policy goal of a permit that would reduce the need for litigation. This goal is important to
us as we believe that good policy and regulations are those that are developed reasonably, that
Perrnittees are capable of complying with. Even though we have worked hard and in good faith
with Regional Board staff to try to develop a Permit that is protective of water quality in a cost-
effective and science-based manner, the draft Order places the Perrnittees in a very vulnerable
position for not immediately complying with water quality standards (see our discussion below
regarding Receiving Water Limitations);
• It is also important to note that stormwater managers have an obligation to adequately inform
other municipal departments, legal counsel, city management and elected officials on the fiscal
impact of this draft Order. The time to properly evaluate the Permit, assess its financial, legal, and
personnel impacts, and inform our cities cannot be accomplished in the 45 day review period; and
• We have also heard from many cities that their executives and elected officials had registered for
the League of California Cities Conference on September 5-7, 2012, months prior to the Permit
adoption hearing notice. We request that the adoption hearing be rescheduled after September 6-
7, 2012 to allow for elected officials and executive of the Permitted agencies to attend the hearing;
it is imperative that the adoption hearing be scheduled at a time that municipal decision makers
have the opportunity to attend and provide comments at the hearing. LA Permit Group Comments on the Draft Order No. R4-2012-)OCXX; NPDES Permit NO. CAS004001
Page 3
It is essential that municipalities be given an additional 180 days to review the Permit and develop alternatives
for the substantial issues found in this Draft Order. Based on the issues listed above and as communicated in
our July 2 nd letter and at the July 12
th
Regional Board meeting, we request that the our appeal for additional
time be reconsidered. This could be accomplished by an additional review of a tentative Order before an
adoption hearing is held.
Receiving Water Limitations
As previously outlined in our 05/14/12 comment letter on the working proposal, the Receiving Water
Limitations (RWL) language in the Draft Order creates a liability to the municipalities that is unnecessary and
counterproductive. We have the following significant concerns with the RWL language included in the Draft
Order:
•
Recent court decisions have created a new interpretation of the RWL that creates a liability for the
Permittees without a commensurate increase in protection of water quality.
•
The RWL as written is not a federal requirement so it is not necessary to maintain the current
language.
• The RWL as written is contradictory to the Watershed Management Program.
•
Alternative approaches are available to address the concerns and maintain the intent of the
language in the approach; we request that RWQCB utilize this alternative language.
We feel that the RWL as included in not necessary and does not support the improvement of water quality as
discussed in more detail below.
Creation of Unwarranted Liability
The proposed language for the receiving water limitations provision is almost identical to the language that
was litigated in the 2001 Permit. On July 13, 2011, the United States Court of Appeals for the Ninth Circuit
issued an opinion in
Natural Resources Defense Council, Inc., et al., v. County of Los Angeles, Los Angeles
County Flood Control District, et aL l (NRDC v. County of LA) that determined that a municipality is liable for
Permit violations if its discharges cause or contribute to an exceedance of a water quality standard. This
represents a fundamental change in interpretation of policy and contrasts sharply with the Board's own
understanding as expressed in a 2002 letter from then-Chair Diamond answering questions about the 2001
MS4 Permit in which she articulated this collective understanding that a violation of the Permit would occur
only when a municipality fails to engage in good faith effort to implement the iterative process to correct the
harm 2. In light of the 9
th
Circuit's decision and based on the significant monitoring efforts being conducted by
other municipal stormwater entities, municipal stormwater Pernnittees would be considered to be in non-
compliance with their NPDES Permits. Accordingly, municipal stormwater Permittees will be exposed to
considerable vulnerability, even though municipalities have little control over the sources of pollutants that
create the vulnerability. Basically, the draft Order language again exposes the municipalities to enforcement
action (and third party law suits) even when the municipality is engaged in an adaptive management approach
to address the exceedance.
1 No. 10-56017, 2011 U.S. App. LEXIS 14443, at *1 (9th Cir., July 13, 2011).
2
January 30, 2002. Letter from Francine Diamond, Chair, Los Angeles Regional Water Quality Control Board LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 4
The LA Permit Group would like to more fully address Board Member Glickfeld's question raised at the May
3rd workshop about how the RWL language as currently written puts cities in immediate non compliance,
either individually or collectively. As noted above, significant monitoring by other MS4s in the state had
demonstrated that MS4 discharges pose water quality issues and with the proposed outfall monitoring
detailed in the Draft Order we would expect the runoff characteristics to be similar to other MS4 discharges in
the State. As the RWL language is currently written, municipalities cannot cause or exceed water quality
standards in the basin plan as soon as this Permit is adopted. While the Regional Board staff has noted that
enforcement action is unlikely if the Permittees are implementing the iterative process, the reality is that
municipalities are immediately vulnerable to third party lawsuits in addition to enforcement action by the
Regional Board. This is in fact what happened to the City of Stockton. The City of Stockton was sued by a
third party for violations of the cause/contribute prohibition even though the City was implementing a
comprehensive iterative process with specific pollutant load reduction plans. This was a series of pollutants
not covered by a TMDL, but that dealt with water quality exceedances. Cities will have no warning or time to
react to any water quality exceedances, but still be vulnerable to third party lawsuits even when cities are
diligently working to address the pollutants of concern. This will be disastrous public policy, creating a chilling
effect on productive storm water programs. Also in the Santa Monica Bay, cities were sent Notices of Violation
that, in essence, stated that all cities in the watershed were guilty until they proved their innocence when
receiving water violations were found, in some cases miles away. The "cause and contribute" language was
quoted prominently in those NOVs as justification for why the Regional Board could take such action.
It is inherently unfair and poor public policy to put cities in non-compliance on day one of the Permit without
the opportunity for the cities to develop a plan of action, develop source identification, and implement a plan
to address the concern. With the very recent legal interpretation that fundamentally changes how these
Permits have been traditionally implemented, please understand that adjusting the Receiving Water
Limitations language is a critical issue. Again, the receiving water limitation language must be modified to
allow for the integrated approach (iterative/adaptive management) to address numerous TMDLs and non-
TMDL water quality problems within the watershed based program in a systematic way. This is a fair and
constructive approach to meet water quality standards.
Receiving Water Limitation Language as Written is Not Required under Federal Law
We believe Federal Law does not require that the RWL language be written as presented in the Tentative
Permit. Based on the language presented in other Permits throughout the United States, the proposed
language is not the only option. The RWL provision as crafted in the contested 2001 Los Angeles permit is
unique to California. Recent USEPA developed Permits (e.g. Washington D.C.
3) do not contain similar
limitations. Thus, we would submit that the decision to include such a provision and the structure of the
provision is a State policy and therefore an opportunity exists for the Regional and State Boards to reaffirm the
iterative process as the preferred approach for long -term water quality improvement.
Receiving Water Limitation Language as Written is Contradictory to the Watershed Management Program
Beyond the legal/liability aspect of the RWLs we would submit that in a practical sense the RWL, as currently
written, does not support the Permit's goal of protecting water quality and works against the Watershed
Management Program proposal. On the one hand, the municipalities will develop watershed management
2 NPDES Permit No. DC0000221, October 7, 2011, issued by USEPA Region 3. LA Permit Group Comments on the Draft Order No. R4-2012-)000C; NPDES Permit NO. CAS004001
Pages
programs that are based on the highest priority water quality issues within the watershed. Consistent with
the Draft Order provision for the Watershed Management Program, we would expect the focus to be on
TMDLs and the pollutants associated with those TMDLs. However, under the current RWL working proposal,
the municipality will need to direct their resources to any and all pollutants that may cause or contribute to
exceedances of water quality standards. Based on a review of other municipal outfall monitoring results in the
State, there will be occasional exceedances of other non-TMDL pollutants (e.g. aluminum, iron, etc.). These
exceedances may only occur once every 10 storms, but according to the current RWL proposal the
municipalities must address these exceedances with the same priority as the TMDL pollutants. The LA Permit
Group views this as unreasonable and ineffective use of limited municipal resources.
We have requested that this language be revised on several occasions including written comments,
workshop comments, and meetings with staff; however this issue has not yet been resolved in the Tentative
Permit. An explanation is requested as to why this language remains as presented in the Draft Order is
requested. Alternative Approaches are Available to Address Concerns.
The RWL language is a critical issue for municipalities statewide and has been highlighted to the State Water
Resources Control Board for consideration. Currently the State Board is considering a range of alternatives to
create a basis for compliance that provides sufficient rigor in the iterative process to ensure diligent progress
in complying with water quality standards but at the same time allows the municipality to operate in good
faith with the iterative process without fear of unwarranted third party action. It is imperative that the
Regional Board works with the State Board on this very important issue.
The California Association of Stormwater Quality (CASQA) has developed draft language that we feel should be
used in lieu of the current language. The language provides specificity in compliance and subjects Permittees
who are not engaged in good faith in the iterative process to enforcement without unnecessary and
counterproductive liability for the majority of Permittees who are diligently implementing stormwater
programs. We feel that the CASQA language maintains the intent of the current RWL while addressing the
concerns outlined above.
Recommendation: Develop Receiving Water Limitation language consistent with the California Association
of Stormwater Quality language that was submitted in a comment letter on Caltrans Permit (Exhibit E) and
on the Statewide Phase ll Permit which defines action thresholds, an iterative/adaptive management
process, and avoids unnecessary liability.
Total Maximum Daily Loads
As outlined in our May 12, 2012 comment letter on the TMDL working proposal, the incorporation of TMDL
WLAs into the Tentative Permit is of critical importance to the LASP. WLAs should be incorporated using a
BMP-based approach that includes an iterative approach to attain the WLAs and provides flexibility to the
Permittees to address the complexities of addressing multiple TMDLs within a watershed. The best
mechanism to achieve water quality standards is by implementing BMPs, evaluating their effectiveness and
implementing additional BMPs as necessary to meet TMDL WLAs. Without this process, and due to the
requirement in the Draft OrderDraft Order to meet numeric values, our ability to effectively implement BMPs
is hampered by the legal issues associated with Permit compliance. LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 6
The Draft OrderDraft Order proposes to incorporate more TMDLs than any other Permit in California issued to
date. As a result, the manner in which the TMDLs are incorporated into the Permit is a critical issue to the LA
Permit Group and will likely set a significant precedent for future M54 Permits.
The rate of development of
TMDLs in the Los Angeles Region was unparalleled in California, and likely the
nation. A settlement agreement necessitated the much accelerated time schedule for these TMDLs. The
TMDLs were developed based on the information available at the time, not the best information to identify or
solve the problem. As a result, the sophistication of the TMDLs vary widely, meaning that not all TMDLs are
created equal regarding knowledge of the pollutant sources, confidence in the technical analysis, availability of
control measures sufficient to address the pollutant targets, etc. Additionally, the majority of the TMDLs were
developed with the understanding that monitoring, special studies, and other information would be gathered
during the early years of the TMDL implementation to refine the TMDLs. As such, many MS4 dischargers were
told during TMDL adoption that any concerns they may have over inaccuracies in the TMDL analysis would be
addressed through a TMDL reopener. The recent experience with the Santa Monica Bay Beaches Bacterial
TMDL reopener demonstrates just how difficult, if not impossible, obtaining serious reconsideration of
established TMDLs, irrespective of the weight of evidence presented. The proposed method of incorporating
TMDL waste load allocations (WLAs) as outlined in the Draft OrderDraft Order does not effectively allow for
addressing this phased method of implementing TMDLs; nor does it recognize the time, effort and
complexities involved in addressing MS4 discharges; and places municipalities into non-compliance risk.
We recognize and appreciate that TMDLs must be incorporated in such a way as to require action to improve
water quality. However, the Permit should recognize the articulated goal of many of the TMDLs to be
adaptive management documents, using the iterative approach to achieve the goals, and consider the
challenges of trying to address the non-point nature of stormwater. As such, it is imperative to have flexibility
in selecting an approach to address the TMDLs and the time frame by which to implement the approach. We
would like to thank Board staff for providing the opportunity to submit an implementation schedule and BMPs
in context of a Watershed Management Plan to attain EPA TMDL WLAs. The same flexibility is also necessary
to address Regional Board adopted TMDLs.
The LA Permit Group would submit that the Regional Board staff is making two policy decisions that have
massive financial impacts to the region (studies show in the range of billions of dollars) with regards to
incorporating TMDLs into a stormwater NPDES Permit:
• The inclusion of numeric effluent limitations for final TMDL WlAs.
•
The use of time schedule orders to address Regional Board adopted TMDLs for which the
compliance points have passed.
Numeric Effluent Limitations for Final TMDL WLAs
The LA Permit Group opposes the incorporation of final WLAs solely as numeric effluent limitations in the
proposed Permit language. Although staff has discretion to include numeric limits where feasible, it is not
required and the use of numeric limits results in contradictions and compliance inconsistencies with the rest
of the Permit requirements. Court decisions (See
Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166-1167
(9th Cir. 1999) 4
), State Board orders (Order WQ 2009-0008, In the Matter of the Petition of County of Los
4
See also California Regional Water Quality Control Board San Diego Region - Fact Sheet/Technical Report For Order No. R9-2010-0016 / NPDES
NO. CA50108766. LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NP DES Permit NO. CA5004001
Page 7
Angeles and Los Angeles County Flood Control District, at p. 10) 5 have affirmed that WLAs can be incorporated
as non-numeric effluent limitations.
Under 40 CFR Section 122.44 (k), the Regional Board may impose BMPs for control of storm water discharges
in lieu of numeric effluent limitations when numeric limits are infeasible. It states that best management
practices may be used to control or abate the discharge of pollutants when numeric effluent limitations are
infeasible. In 2006, the State Board convened Blue Ribbon Panel made recommendations to the State Water
Resources Control Board concluding that it was not feasible to incorporate numeric limits into Permits to
regulate storm water, and at best, there could be some action level to focus on problematic drainage sheds 6 .
Very little has changed in the technology and the feasibility of controlling storm water pollutants since 2006.
What has changed is that a legally compelled, long list of TMDLs has been adopted in the LA Region in a very
short time period. The draft stormwater Permit for CalTrans also states "Storm water discharges from MS45
are highly variable in frequency, intensity, and duration, and it is difficult to characterize the amount of
pollutants in the discharges. In accordance with 40 Code of Federal Regulations section 122.44(k)(2), the
inclusion of BMPs in lieu of numeric effluent limitations is appropriate in storm water Permits. This Order
requires implementation of BMPs to control and abate the discharge of pollutants in storm water to the MEP.
To assist in determining if the BMPs are effectively achieving MEP standards, this Order requires effluent and
receiving water monitoring. The monitoring data will be used to determine the effectiveness of the applied
BMPs and to make appropriate adjustments or revisions to BMPs that are not effective!' The LAPG requests
similar consideration as the Draft Order is a much more variable and complicated MS4 than CalTrans.
Additionally, during the May 3, 2012 MS4 Permit workshop, Regional Board staff seemed to indicate that the
basis for incorporating the final WLAs as numeric effluent limitations is EPA's 2010 memorandum pertaining to
the incorporation of TMDL WLAs in NPDES Permits'. This memorandum (which is currently being
reconsidered by U.S. EPA) states that "EPA recommends that, where feasible, the NPDES permitting authority
exercise its discretion to include numeric effluent limitations as necessary to meet water quality standards"
(emphasis added). This statement highlights the basic principle that the Regional Board has discretion in how
WLAs are incorporated into a M54 Permit. Regional Board staff commented during the workshop that staff
have evaluated data and have determined numeric effluent limitations are now feasible. However, no
information refuting the Blue Ribbon Panel report recommendations has been provided that demonstrates
how the appropriateness of using strict numeric limits was determined and why these limits are considered
feasible now even though historically both EPA and the State have made findings that developing numeric
limits was likely to be infeasible.
Given the discretion available to Regional Board staff and the variability among the TMDLs with respect to
understanding of the pollutant sources, confidence in the technical analysis, and availability of control
measures sufficient to address the pollutant targets, it is critical to use non-numeric water quality based
5 "[l]t is our intent that federally mandated TMDLs be given substantive effect. Doing so can improve the efficacy of California's NPDES storm water
permits. This is not to say that a wasteload allocation will result in numeric effluent limitations for municipal storm water dischargers. Whether
future municipal storm water permit requirement appropriately implements a storm water wasteload allocation will need to be decided on the
regional water quality control board's findings supporting either the numeric or non-numeric effluent limitations contained in the permit." (Order
WQ 2009-0008, In the Matter of the Petition of County of Los Angeles and Los Angeles County Flood Control District, at p. 10 (emphasis added).)
6 Storm Water Panel Recommendations to the California State Water Resources Control Board "The Feasibility of Numeric Effluent Limits
Applicable to Discharges of Storm Water Associated with Municipal, Industrial and Construction Activities. June 19, 2006.
7 U.S. EPA, Revisions to the November 22, 2002 Memorandum "Establishing Total Maximum Daily Load (TMDL) Wastelood Allocations (WLAs) for
Storm Water Sources and NPDES Permit Requirements Based on Those WIAs, Memorandum from U.S. EPA Director, Office of Wastewater
Management James Al Hanlon and U.S. EPA Director, Office of Wetlands, Oceans, and Watershed Denise Keehner (Nov. 10, 2010). LA Permit Group Comments on the Draft Order No. 114-2012-X)00(; NPDES Permit NO. CAS004001
Page 8
effluent limitations for final WLAs in this Permit. The proposed Watershed Management Program will
require quantitative analysis to select actions that will be taken to achieve TMDL WLAs. For the entire length
of the TMDL compliance schedule, Permittees will be required to demonstrate compliance with interim WLAs
by implementing actions that they have estimated to the best of their knowledge will result in achieving the
WLAs and water quality standards. However, unless final WLAs are also expressed in this Permit as action-
based water quality based effluent limitations, and if instead strict numeric limits are required for final WLAs,
then, at the specified final compliance date, no matter how much the Permittee has done, no matter how
much money has been spent, no matter how close to complying with the numeric values, no matter what
other sources outside the Permittees' control have been identified and quantified, and no matter what other
information has been developed and submitted to the Regional Board, the Permittee will be considered out of
compliance with the Permit requirements. Furthermore, because of the structure established in this Permit,
the Regional Board staff will have to consider all Permittees in this situation as being out of compliance with
the Permit provisions if the strict numeric limits have not been met, regardless of the actions taken previously.
This approach is inconsistent with the goals of good public policy, fair enforcement, fiscal responsibility and
holding Permittees responsible only for discharges over which they have individual control.
TNICILs Where Compliance Date Has Already Occurred
The LA Permit Group is also concerned with the major policy decision related to the use of Time Schedule
Orders for Regional Board adopted TMDLs for which the compliance date has already occurred prior to the
approval of the NPDES Permit. There is a fundamental problem with the TMDL process whereby new
information is not being incorporated into TMDLs. The ideal phased TMDL implementation process whereby
dischargers can collect information, submit it to the Regional Board, and obtain revisions to the TMDL
requirements to address data gaps and uncertainties has not occurred. As evidenced by the number of
overdue Permits, the workload commitments of Regional Board staff are significant and TMDL reopeners
seldom occur. Because the majority of the TMDLs have not been incorporated into Permit requirements until
now, MS4 Permittees have been put in the position of trying to comply with TMDL requirements without
knowing how compliance with those TMDLs would be determined and without knowing when or if promised
considerations of modifications to the TMDL would occur. So Permittees would be expected to be in
immediate compliance with new Permit provisions irrespective of most precedent, guidance regarding
incorporation of TMDLs into MS4 Permits, and irrespective of what actions Permittees have taken to try and
meet the TMDL requirements. This is neither fair nor consistent as requesting a ISO would place a Permittee
in immediate non-compliance with the Permit and expose the Permittee to risk of third party lawsuits.
The LA Permit Group strongly believes that the adaptive management approach envisioned during TMDL
development, whereby TMDL reopeners are used to consider new monitoring data and other technical
information to modify the TMDLs, including TMDL schedules as appropriate, is the most straightforward way
to address past due TMDLs. The Regional Board should use the reopener as an opportunity to adjust the
implementation timelines to reflect the practical and financial reality faced by municipalities. Final WLAs
should be delayed until serious reconsideration of the data that established the TMDLs so that the TMDLs can
reflect information gathered during the implementation period. This will allow critically important data to be
utilized to selectively modify time schedules in the TMDLs. Final compliance with TMDL Permit conditions
should not occur prior to these additional TMDL reconsiderations. Additionally, the Permit should reflect any
modifications to the TMDL schedules made through the reopener process, either through a delay in the
issuance of the Permit until the modified TMDLs become effective, or by using its discretion to establish a
specific compliance process for these TMDLs in the Permit. Providing for compliance with these TMDLs
/2_ LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 9
through implementation of BMPs defined in the watershed management plans as we have requested for all
other TMDLs is a feasible, fair and consistent way to achieve this goal.
Recommendation:
• Provide a provision which requires that a TMDL be reconsidered in light of information that was not
available when the TMDL was developed before the final WLAs become effective. Whenever the
reconsideration has been completed, the Permit should be reopened to make changes to any
wasteload allocation, time schedules, and other pertinent information.
• Translate WLAs into WQBELs, expressed as BMPs.
•
State that the implementation of the BMPs using an iterative process will place the Permittee into
compliance with the MS4 Permit.
• Provide for four compliance options for both interim and final WLAs:
o Implement Actions/BMPs consistent with Watershed Management Program
o Compliance at the outfall (end of pipe)
o Compliance in the receiving water (river, creek, ocean)
o No direct discharges
•
Allow for the adaptive management approach to be utilized for TMDL compliance, consistent with
the timelines identified in the Watershed Management Programs.
Monitoring
The proposed monitoring program requirements have significantly increase compared to our current required
efforts. Although we understand the need for monitoring to support the Permit, we believe there are number
of issues within the M RP that need to more fully vetted and discussed. These issues include:
•
Receiving water monitoring should be consistent with SWAMP protocols including the
requirement that ambient monitoring be conducted two days following a storm event. Currently
the receiving water monitoring is proposed to be conducted during storm events. Such an
approach will not support the need to assess the receiving water quality consistent with the
SWAMP approach that is used as the basis for 303(d) listing.
•
The focus and scope of non-stormwater monitoring is not commensurate with the environmental
issues associated with dry weather flows. We believe the non-stormwater monitoring should be
to help identify illicit discharges and not for assessing the multitude of objectives noted in the MRP,
II.E.a — c. Furthermore we would submit that the MS4s should focus its non -stornnwater
monitoring on discharges "into" our MS4 and not on discharges "through" or from our MS4s that
may cause or contribute to exceedances of water quality standards. This is consistent with CWA
section 402(p)(B).
• Regarding regional studies (MRP XI.A — B), the LAPG would submit that these studies should be
conducted by the Regional or State Board. But if the Permit does require special studies, the
Permit needs to establish the mechanism/option for Permittees to participate in the studies
without having to conduct the studies on an individual basis. Furthermore, the Regional Board
should be the agency to lead and coordinate these studies. The MRP appears to read that each
and every Pernnittee must conduct the regional studies.
• Toxicity monitoring should be limited to the receiving water only and not at the outfalls. It's
important to establish whether is a toxicity issue in the receiving water before conducting this LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 10
expensive monitoring at the outfalls. Furthermore, recent Department of Pesticide Regulations 8
has severely limited the use of pyrethroid based pesticides, thus calling into question the need for
expensive toxicity monitoring, especially at outfalls. And finally, should a study be deemed
necessary, the Regional Board should lead this study.
• Insufficient time is allotted to prepare Coordinated Integrated Monitoring Plans (CIMP). Since the
monitoring for TMDLs should continue per the TMDL schedules, the Permittees should be allowed
sufficient time to prepare the CIMPs. To prepare a CIMP the Permittees will need more than a
•Letter of Intent to proceed. We recommend that the Draft OrderDraft Order be modified to allow
12 months to submit a Memorandum of Agreement to participate in a CIMP and 24 months to
submit the complete CIMP.
The time required to award the monitoring contract is 3 months, at
least 6 months are needed to obtain Los Angeles County Flood Control Encroachment Permits, thus
at least 9 months is needed before commencing monitoring.
Minimum Control Measures
In order to further water quality improvements, the Permit needs to set clear goals, while allowing flexibility
with the programs and BMPs implemented. This is accomplished through integrated watershed planning and
monitoring. This strategy has been requested by the LA Permit Group as it will allow Permittees to look at the
larger picture and develop programs and BMPs based on addressing multiple pollutants. In doing so, limited
local resources can be concentrated on the highest priorities. The LA Permit Group has on numerous
occasions expressed our support of a watershed based approach to stormwater management. It would
appear from a read of Provision Vl.C.1.a (page 45) that the Board also supports this approach. We believe the
opportunity for a municipality to customize the MCMs to reflect the jurisdiction's water quality conditions is
absolutely critical if municipalities are to develop and implement stormwater programs that will result in
environmental improvement.
We, however, suggest that the Permit ultimately establish criteria that will be
used to support any customization of MCMs.
The criteria should be comprehensive but flexible. We suggest
some flexibility in the criteria because the management of pollutants in stornnwater is a challenging task and
that the science and technology to help guide customizing MCMs are still developing. Furthermore, the
municipal stormwater performance standard to reduce pollutants to the maximum extent practicable is not
well defined and will depend on a number of factors g. This constraint, as well as USEPA position l° that the
iterative process is the basis for good stormwater management, supports the need to provide flexibility in
defining the criteria for customizing MCMs. Also, for clarification, the terms of adaptive management
approach and the iterative approach need to be defined as equivalent and that they can be used
interchangeably.
Timeline for Implementation
The Draft Order does not provide adequate and reasonable timelines for the start-up and implementation of
the Minimum Control Measure requirements. For example, the Draft Order in provision VI.D.1.b.1 requires the
majority of MCMs to begin within 30 days, unless otherwise noted in the order. There are a number of
new/enhanced provisions and it is fair to say that there will be a transition period between the time the
Permit becomes effective and the time that the municipalities will have to modify their current stormwater
management programs to be in compliance with the new Permit provisions. At the same time, consideration
should be given to the time required to develop watershed based "customized" programs. The LA Permit
8 httP://WWW.CdPr.CagOVidOCS/legbillStrUlerkgS/11 -004/teXt final.pdf.
9 See E. Jennings 2/11/93 memorandum to Archie Mathews, State Water Resources Control Board.
i°
See Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits, 61 FR 43761 (Aug. 26,
1996). LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 11
Group requests that the Regional Board provide a revised timeline for implementation and phasing-in of the
Minimum Control Measure requirements. We request that the Permit allow a 12 month time schedule to
transition from our current efforts to the new and enhanced MCMs requirements.
Shifting of State Responsibility to the MS4
The Draft OrderDraft Order shifts much of the State responsibilities regarding the State's General s for
Construction and Industrial Activities to the municipalities. These new responsibilities have significant
financial responsibilities on the permittees (ex. plan reviews, inspections time, reporting, enforcement, etc.).
This is especially true for the Statewide General Construction Activities Permit (GCASP) and Provision VI.D.7. A
few examples of where the Draft Order either shifts the responsibility or actually exceeds the requirements of
the GCASP are listed below:
• Maintaining a database that overlaps with the States' own SMARTS database. Asking Permittees to
collect the same data adds unnecessary time and expense with no benefit to water quality;
• Requiring the quantification of soil loss is redundant with the GCASP and adds additional M54 costs.
• Inspections will be increased by more than 200% and are redundant since the State should be
responsible for implementation of its own permit particularly in light of the fact that the State collects
a permit fee for implementation.
Those elements that shift State responsibility should be eliminated and the MCMs should be coordinated
with other state and federal requirements, with particular attention to GCASP and General Industrial
Activities Permit requirements.
MCMs Should Reflect Effective Current Efforts
The LA Permit Group understands that the new Permit must reflect current understanding of stormwater
management and water quality issues. Where the current stormwater management effort is assessed to be
inadequate, then additional efforts are warranted. However, when current efforts are assessed to be
adequate for protecting water quality, then the MCMs should reflect current efforts. One significant area
where the LA Permit Group believes that the current effort is protective of water quality is in the new
development program. The City and County of Los Angeles as well as the City of Santa Monica have
developed and adopted Low Impact Development ordinances and significant work, technical analysis, and
public input have gone into the development of these ordinances. Each of these ordinances required tailoring
of standards to address the unique characteristics of their city (ex. size, land uses, soils, groundwater,
watershed(s), hydrology, etc.). The Permit should reference the type of program and flexibility needed to
accommodate the unique and vastly varying characteristics throughout the County. Instead of providing
detailed information in the text of the Permit, the LID provisions should outline general requirements of the
program, and the details should be contained in a technical guidance manual. This point was reiterated by
several speakers at the April 5, 2012 workshop, including BIA. Ultimately, it may be more constructive if the
Regional Board created a template for the Permittees to use.
New Development MCM
Notwithstanding our comments above, the LA Permit Group has a number of concerns with the New
Development provision of the MCMs. While the LA Permit Group has concerns and need for clarification with
the other MCMs we find the New Development MCM the most challenging and unsupportable. The provision
is difficult to follow and the BMP selection hierarchy is confusing and at times in conflict. We have provided
specific comments on this provision but it suffice to say that the LA Permit Group believes this provision
should be redrafted. We have significant concerns with the following parts of the New Development MCM:
i5 LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 12
• Storm design criteria
• Alternative compliance option offsite mitigation
• Treatment control performance benchmarks
• BMP tracking and inspection
• BMP specificity and guidance
• Hydromodification
Storm Design Criteria
The Draft Order in Provision D.6.c.i (page 70) requires the developer to retain the stormwater quality design
volume as calculated by either the 0.75 inch storm or the 85 th percentile 24 hour storm whichever is greater.
We take exception to the requirement to select the largest calculated volume. In all Permits to date in
California these two design criteria were judged to be equivalent. We recommend that the Draft Order be
modified to specify that the two criteria are equivalent. In fact, the current stormwater 2001 Permit for Los
Angeles County includes four design criteria to choose from for the stormwater volume. The additional effort
to assess every project to choose between two equivalent design criteria makes little sense and adds cost to
any project. We recommend that the developer be allowed to choose between the two criteria without the
need to calculate the largest.
Alternative Compliance Option - Offsite Mitigation
The Draft Order goes into great detail discussing an alternative compliance option to full on- site retention of
the design storm volume. The alternative option takes the form of an offsite mitigation project. As currently
structured it is highly unlikely that anyone will opt for this alternative compliance option. Probably the biggest
hurdle for developers to overcome if they are to pursue offsite mitigation is the requirements that they must
treat the project site runoff to the levels identified in Table 11. This combined with the requirement that the
offsite mitigation project must be equivalent in pollutant load reduction as the original project site equates to
the developer removing essentially twice as much pollutant loads as he would had accomplished on the
project site had the site been able to retain the load onsite originally. This is inherently unfair. We would
recommend that the developer be required to remove only the pollutant loads that would have been
removed at the project site at the mitigation site and if the mitigation site cannot meet that load reduction
then the developer can implement treatment controls at the project site for the remaining differential.
Such an approach is fair and will be more readily accepted by the development community than the current
proposal.
Treatment Control Performance Benchmarks
The concept of establishing benchmarks for post construction BMPs was initially developed in the 2009
Ventura MS4 Permit. However, there is a significant different between the Permits. The Ventura County's
NPDES MS4 Permit requires the project developer to determine the pollutant of concern(s) for the
development project and use this pollutant as the basis for selecting a top performing BMP. In the case of the
Draft Order, there is no determination of the pollutant of concern for the development project. Instead post
construction BMPs must meet all the benchmarks established in Table 11. Unfortunately, no one traditional
post construction BMP (non-infiltration BMPs) is capable of meeting all the benchmarks and thus the
developer will not be able to select a BMP. We recommend that provision VI.D.6.c.iv.(1)(a) (page 74) be
modified so that the selection of post construction BMPs is consistent with the Ventura Permit and is based
Co LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 13
on the development site's pollutant of concern(s) and the corresponding top performing BMP(s) that can
meet the Table 11 benchmarks.
BMP Tracking and Inspection
In the Draft Order provision VI.D.6.d the Permittees are being required to track and inspect post construction
BMPs including LID measures. The provision does allow that such effort can be addressed by the project
developer but even with this consideration the provision is onerous for city staff as this would still require
significant staff time (ex. plan reviews, data entry, letter preparation and enforcement, etc.). This is especially
true for LID measures which if planned and designed correctly will include a large number of measures
(planter boxes, infiltration trenches, swales, etc.) on every site. Furthermore most of the LID measures will be
infiltration type measures which are difficult to inspect and should be only inspected in wet weather when one
can ascertain that the LID measures are operating correctly. This inspection concept when taken to the
extreme will mean that municipalities will be inspecting LID measures all over the community and only during
rain events. This is just flat unreasonable and cost prohibitive for the municipality. Furthermore, the cost for
implementation (e.g. inspection, monitoring, enforcement, etc.) are not shown to be commensurate with any
corresponding improvement in water quality. We recommend that the tracking and inspection of post
construction BMPs be limited to only the conventional BMPs (e.g. detention basins, wetlands, etc.);
alternatively require the MS4 to spot check a limited number of LID measures to ascertain how well they
are operating.
BMP Specificity
The Draft Order in Attachment H provides detail specifications for biofiltration and bioretention BMPs. The LA
Permit Group believes that such specificity, although well intended, is counterproductive. Such specificity is
equivalent to a wastewater NPDES Permit specifying the grain size in the multimedia filtration unit. It is more
appropriate to establish the performance standard for the BMP and to allow the MS4 to develop design
specifications to meet the standard. We recommend that Attachment H be removed and a provision be
established that establishes a collaborative approach to promote a technical guidance manual that would
include the design specifications for bioretention/biofiltration.
Hydrornodification
The LAPG would submit that it is premature to change the hydromodification criteria, specifically the interim
criteria. In our current 2001 order, Pemittees were required to develop numerical criteria for peak flow
control, based on the results of the Peak Discharge Impact Study. We believe it more constructive to keep
with the previously developed hydromodification criteria and not revised it for the interim until the final
criteria can be developed by the State. A change now and then one later on just adds confusion to the
development process and creates additional work for a limited or non-existent water quality improvement.
The effort under the 2001 Permit should be sufficient until such time the final criteria are developed.
Public Agency MCM
The Draft Order identifies a number of requirements for public agency MCMs. Our detailed comments are
attached, but there are two issues we want to highlight here. First is provision VI.D.8.h.vii (page 102) which
specifies additional trash BMPs regardless of whether the area is subject to a trash TMDL. We take exception
to this approach, as the MCM requires prioritization, cleaning and inspection of catch basins as well as street
sweeping and other management control measures to address trash at public events. And then even if the
17 LA Permit Group Comments on the Draft Order No. R4-2012-)000(; NPDES Permit NO. CAS004001
Page 14
Municipality is controlling trash through these control measures, the Municipality must still install trash
excluders (see page 102 regarding "additional trash management practices"). This makes little sense and the
LA Permit Group would submit that if the initial control measures are successful, then the "additional trash
management practices" are unnecessary (as evident by the lack of a TMDL).
The second issue pertains to provision VI.D.8.d (page 94) regarding retrofitting opportunities. Provision
VI.D.8.d.i requires that the MS4 develop an inventory of retrofit opportunities within the public right of way
but then in provision VI.D.8.d.ii, the Draft Order requires the Permittees screen existing area of development.
Furthermore in provision VI.D.8.d.iii the M54 must prioritize all existing areas of development. Reading these
provisions in whole would seem to indicate that the MS4 must identify all potential retrofit sites (private or
publically owned) and to prioritize the sites. This is a contentious issue and should be addressed carefully.
Stormwater regulations (40 CFR 122.26.(d)(2)(iv)(4) requires consideration of retrofitting opportunities, but
the consideration is limited to flood management projects (i.e. public right of way) and does not require
consideration of private areas. We recommend that for this Permit term that the retrofit provision (i.e.
inventory, screening, and prioritization) be limited to public right of ways lands only.
ID/IC MCM
The Draft Order identifies a number of provisions that are fundamental to an Illicit Connection/Illegal
Discharge program. These provisions include
• III. Discharge Prohibition,
• VI.A.2 Standard Provisions — Legal Authority,
• VI.D. 9 IC/1D Elimination Program,
• Attachments E, Monitoring and Reporting and
• Attachment G Non-stormwater Action Levels.
When combined, the ID/IC program will require a significant effort and not always effective. We have
provided specific comments on these provisions in the Exhibit to this letter but we would like to highlight two
of the more significant issues. First, is the magnitude of the dry weather monitoring being required. The
TMDLs monitoring programs have already identified, to a large extent, a comprehensive non-stormwater
monitoring program. As such, the TMDL monitoring program should be the basis for the "non-stormwater
outfall based monitoring program" and both should be identified in an Integrated Watershed
Monitoring Program.
The second issue pertains to the non-stormwater action levels established in Attachment G. One of the goals
of establishing non-stormwater action levels is to assist Permittees in identifying illicit connections and/or
discharges at outfalls. Exceedances of action levels can help Permittees prioritize and focus resources on
areas that are having a real impact on water quality. Unfortunately, as currently drafted, the non-stormwater
action levels do not accomplish this goal. The action levels established in the Draft Order are derived from
Basin Plan, CTR, or COP water quality objectives. The non-stormwater action levels do not facilitate the
consideration of actual impacts (e.g., excess algal growth), have no nexus to receiving water conditions, and
do not address NAL issues unrelated to illicit discharges (e.g., groundwater). The action levels and the
associated monitoring specified in the Monitoring and Reporting Program would require Permittees to
investigate and address issues on an outfall-by-outfall basis, even if the receiving water is in compliance with
all water quality standards. This will not assist Permittees in prioritizing resources on outfalls that are clearly
having an impact on water quality. We recommend that the Permit allow the Watershed Management
Programs to guide the customization of the NALs based on the highest water quality priorities in each
S' LA Permit Group Comments on the Draft Order No. R4-2012-)00DC; NPDES Permit NO. CAS004001
Page 15
watershed and to establish them at a level that would provide better assurance that illicit discharges can
actually be found and not have every outfall become a high priority outfall. If NALs are not established
through the Watershed Management Programs, or Permittees should be required to use the default NALs and
approach identified in Attachment G.
Watershed Management Programs
Overall, the IA Permit Group supports the Regional Board's proposed approach to address high priority water
quality issues through the development and implementation of a Watershed Management Program.
However, one of our biggest concerns continues not be addressed, is the Draft Order proposed timeline for
developing the watershed management program(s). The Draft Order allows the municipalities only one year
to develop a comprehensive watershed management program. This is insufficient time to organize the
watershed cities and other agencies, develop cooperative agreements, initiate the studies, calibrate and run
the models based on relevant data, draft the plans, and obtain necessary approvals from political bodies. As a
comparison, the City of Torrance required two years to prepare a comprehensive water quality plan that
addressed a suite of TMDLs, similar to what is being considered in the watershed management program. We
believe that it will require at least 24 months to develop a draft plan that is comprehensive, analytically
supported, and implementable. Alternatively we would suggest a phased approach where some initial
efforts (e.g. MOUs, retrofit inventory) could be completed and submitted within 12 months but allow 24
month timeline for the more complicated or resource intensive efforts.
We also offer the following comments regarding the Watershed Management Program (our line item by line
item review and comments are attached):
• The Draft Order seems to be silent on the critical issue of sources of pollutants outside the
authority of MS4 Permittees (e. g. aerial deposition, upstream contributions, discharges allowed by
another NPDES permit, etc.). We request that Permittees be allowed to demonstrate that some
sources are outside the Permittee's control and not responsible for managing or abating those
sources.
• The Permit needs to clearly state that watershed management programs and the reasonable
assurance analysis can be used for TMDL compliance purposes.
• The Permit should clarify that the adaptive management process is equivalent to the iterative
process described in the Receiving Water Limitation provision and provide the legal justification
for the adaptive management process.
• More careful consideration should be given to the frequency and extent of the reporting and
adaptive management assessments. The current Draft Order results in a significant annual effort
and the LA Permit Group members question the value of such an effort. Current reporting appears
to overwhelm Regional Board staff resources and has provided limited feedback to the
municipalities. We believe that the reporting can be streamlined and that the jurisdictional and
watershed reporting should be combined. Furthermore, we recommend that the adaptive
management process be applied every two years instead of the every year frequency noted in
the Draft Order.
• It is unclear how the current implementation of our stormwater program and TMDL compliance
will be handled during the interim period before development of the watershed management
program. For those entities that choose this path, the LA Permit Group requests that current,
significant efforts in our existing programs and implementation plans be allowed to continue
while we evaluate new MCMs as part of the watershed management program. LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CASD04001
Page 16
• Consideration of the technical and financial feasibility of complying with water quality standards
should be included in the watershed management program.
• The timing of revising the Watershed Management Programs is in conflict and confusing. There
should only be one revision to the Watershed Management Program, and only when adaptive
management/iterative process demonstrates that the modification is warranted.
• The adaptive management/iterative approach and timing should be consistent between
individual Permittees ("jurisdictional watershed management program") and the watershed
management program.
Cost/Economic Implications
Regarding fiscal resources, the LA Permit Group would like to reemphasize the limited parameters in which
municipalities operate. The Draft Order (page 40) requires municipalities to exercise its authority to secure
fiscal resources necessary to meet all of the requirements of the Permit. We have reservations as to whether
this provision is legal given that it appears to violate the State Constitution, Article XVI, Section 18. That being
said, Permittees have a limited amount of funds that are under local control. Any additional funds needed to
raise money for stormwater programs would need to come from increased/new stormwater fees and grants.
New fees for stormwater are regulated under the State's Prop 218 regulations, and require a public vote.
Therefore, raising new fees is an item that is not under direct control of the municipalities — the Permit
language should reflect this. Furthermore, in addition to clean water, local resources are also directed to a
number of health, safety and quality of life factors. Thus, all these factors need to be developed in balance
with each other. This requires a strategic process and that will take time to get right. We request that the
Regional Board develop the Permit conditions based on a reasonable timeframe in balance with the existing
economy and other health, safety, regulatory and quality of life factors that local agencies are responsible for.
The LA Permit Group also wants to address the issue of whether or not these Permit requirements constitute
an unfunded mandate. The Fact Sheet makes a unilateral statement that the Regional Board has determined
that the Permit requirements do not exceed Federal requirements and therefore are not unfunded mandates.
No back up information is provided to substantiate this claim. Our request is for the Regional Board to
substantiate this statement for each section of the Permit. We also want to point out that the court decisions
on unfunded mandates claims are still on appeal, and it is premature to conclude on the merits of the appeal.
As previously discussed at workshops, and in comment letters, and requested by many Board Members, the
economic implications of the many proposed Permit requirements are of critical importance. it is also worth
noting that the cost for complying with both the stormwater regulations and TMDL requirements should be
carefully considered. This point is highlighted in the March 20, 2012 memo" from OMB to heads of executive
departments and agencies (including USEPA) which clarified Presidential Executive Order 13563. This Order
requires the agencies to take into account among other things, and to the extent practicable, the costs of
cumulative regulations. This is particularly relevant for this Draft Order where we have the convergence of
TMDLs and stormwater regulations. Although we have not had sufficient time to assess the cost for the new
stormwater requirements, the County of Los Angeles has completed an analysis (using the Los Angeles County
BMP Decision Support System model) to assess the effort required to implement low impact development
retrofits throughout Los Angeles County to address all TMDLs and 303(d) listings. This model roughly
estimated that, to meet these water quality standards, the area would have to spend between $17 billion and
11 Cass R. Sunstein, Executive Office of the President, OMB memorandum for the Heads of Executive Departments and Agencies
regarding Cumulative Effects of Regulations, March 20, 2012.
2.0 LA Permit Group Comments on the Draft Order No. R4-2012-XXXX; NPDES Permit NO. CAS004001
Page 17
$42 billion. Los Angeles River Watershed Bacteria TMDL could cost up to $5.4 billion for full, inclusive,
implementation costs for that watershed alone for only one pollutant. Even if the Water Quality Funding
Initiative passes (and it is far from guaranteed to pass), it would take a full 20 years dedicating the entire fund
to the Los Angeles River Bacteria TMDL to pay for these requirements. It would require over 60 years paying
for the larger estimate. In the fact sheet, Regional Board staff stated that the TMDL costs were considered
during the TMDL adoption process. However, given Executive Order 13563, we would submit that the Board
should consider all costs associated with the management of stormwater. With these types of economic
implications, it is critical that this Regional Board and their staff more carefully evaluate comments and
provide additional, extended comment periods for these requirements.
In closing, we thank you for the opportunity to comment on the Draft Order and we look forward to meeting
with you to discuss our comments and to explore alternative approaches. However, we must reiterate the
need for more time to review and analyze this Draft Order. In spite of the Regional Board staff statement 12
that there has been a myriad of opportunities to present our concerns and comments, we believe otherwise.
The LAPG would submit that we have not had an opportunity to voice our concerns to the Regional Board
members themselves as we have been limited (in some cases prevented) in responding to questions posed by
the Board members during different workshops. Consequently, we respectively request that that the Board
provide another complete second draft Tentative Order with an additional review period to allow
Permittees to have at least a total of 180 days to discuss and review the full document. We believe it
important to review the entire draft Permit to better understand the relationship among the various
provisions; this is especially true for the monitoring provision and its relationship to the watershed
management program. We also believe that the Regional Board staff will be hard pressed to consider and
respond to all the comments that will be submitted on the Draft Order. Thus, it is advantageous to all parties
that more time is provided to craft a permit that is implementable and protective of water quality. We
request the issues presented in our letter are resolved in a revised Permit draft. . Please feel free to contact
me at (626) 932-5577 if you have any questions regarding our comments.
Enc. Exhibits X-NX
cc: LA Permit Group
12 S. Ungers 7/13/12 letter to H. Maloney and the LA Permit Group.
2.1