San Francisco Bay Regional Water Quality Control Board s2

CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD SAN FRANCISCO BAY REGION 1515 Clay Street, Suite 1400 OAKLAND, CA 94612RESPONSE TO COMMENTS September 6, 2001 PROPOSED AMENDMENT OF PROVISION C 3 NEW DEVELOPMENT AND REDEVELOPMENT PERFORMANCE STANDARDSSANTA CLARA VALLEY URBAN RUNOFF POLLUTION PREVENTION PROGRAM (PROGRAM) NPDES PERMIT NO. CAS00297818This document summarizes the Regional Board staff’s responses to comments on the New Development and Redevelopment Performance Standards made in response to Tentative Orders transmitted for public comments on May 18, 2001. These comments are grouped by topic, so that the public can see the depth and range of comments on the various provisions of the May 18 Tentative Order. Where a comment was made by more than one entity, a list of commenters is given.The comments made during the October 13-November 13, 2000, comment period are addressed in a second document and are grouped by commenter. For brevity, many of the comments are paraphrased. The Regional Board staff response follows each of the comments.May 18 – June 18, 2001 Comments1 Comments on Justification for the New Development Provision Comment: No justification is provided that the new development provision is needed to improve water quality. The proposed language goes beyond existing permit language without justification.Commenters include:  City of Santa Clara 4  Lockheed Martin Space Systems 2  Morrison & Foerster 6, 10, 14  San Jose 1  Santa Clara County 3  SCVURPPP 3 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: We believe the proposed language is justified by, and fulfills the requirements of, the Clean Water Act (CWA) and its implementing regulations. The conditions established by this permit are based on Section 402(p)(3)(B) of the CWA, which mandates that a permit for discharges from municipal separate storm sewer systems (MS4) must: effectively prohibit the discharges of non-storm water to the MS4; and, require controls to reduce pollutants in discharges from MS4 to the maximum extent practicable (MEP) including best management practices (BMP), control techniques, and system, design and engineering methods, and such other provisions determined to be appropriate. MS4s are not exempted from compliance with Water Quality Standards. Section 301(b)(1)(C) of the CWA, requiring that NPDES permits include limitations, including those necessary to meet water quality standards, applies. The intent of the permit conditions is to meet the statutory mandate of the CWA. NPDES permits must protect receiving water quality standards. Federal NPDES regulation 40 CFR 122.44(d)(1) requires municipal storm water permits to include any requirements necessary to “achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.” Finding 7 of the T.O. includes evidence that altered flow regimes resulting from new development and significant redevelopment can negatively impact water quality standards. As such, the Permit includes requirements for the management of flow in order to protect receiving water beneficial uses and water quality objectives, as it is required under the federal NPDES storm water regulations. In addition, the Basin Plan contains standards for urban runoff NPDES permit programs in Chapter 4 at p. 4-14, 4-15 and 4-28, 4-32. This Basin Plan language is comprehensive and addresses the types of permit requirements in the T.O. The requirements in Provision C.3 are also supported by the EPA federal stormwater regulations at 40 CFR 122.26, and fall within the NPDES permitting authority of the Board, and a Basin Plan amendment is not necessary for their inclusion in an NPDES permit. No numeric limitations are proposed at this time. In the implementing regulations at 40 CFR 122.44(k), the USEPA requires a series of increasingly more effective BMPs,1 in the form of a comprehensive new development performance standard, in lieu of numeric limitations.2 As authorized by 40 CFR 122.44(k), the permit will utilize BMPs as the mechanism to implement statutory requirements. Section 402(p)(3)(B)(iii) of the CWA clearly includes structural controls as a component of maximum extent practicable requirement. The Santa Clara Valley Urban Runoff Pollution Prevention Program (Program) has an existing performance standard for new development, which was created in 1996. The language in the Tentative Order is an update of the existing performance standard to ensure that implementation in this vital municipal stormwater permit program area meets MEP. Because the MEP standard is the standard for BMP implementation of the Phase I NPDES permit, the necessary finding is that the changes proposed meet MEP. The State Board and other Regional Boards have addressed the question of what constitutes MEP in other stormwater permits. (See for example the Cities of Bellflower precedential State Board Order (State Board Water Quality Order WQ-2000-011.)) The Tentative Order is based on an evaluation of MEP for the area covered by the Santa Clara permit. In addition, the record contains justification that pollutants wash off of the roofs, road pavement, parking lots, and other paved portions of new development particularly, and that all land use categories studied have been shown to contribute some pollutants. This conclusion is supported by 1 Interpretative Policy Memorandum on Reapplication Requirements of MS4s issued by USEPA (61 Fed. Reg. 41697) 2 Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits (61 Fed. Reg. 43761)2 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 a large body of studies and reports, including those cited in the Staff Report issued with the May 2001 Tentative Order, and:  Bay Area Storm Water Management Agencies Association, October 15, 1996. “San Francisco Bay Area Stormwater Runoff Monitoring Data Analysis, 1988-1995.” Oakland: Woodward-Clyde Consultants (now URS Corporation). Summarizes results of storm water data collection and analysis work in the Bay Area, including work done in Alameda and Santa Clara counties, findings on storm water toxicity, pollutant concentrations related to land use, and related information.  Heaney, J.B., Pitt, R, and Field, R. Innovative Urban Wet-Weather Flow Management Systems, 1999. USEPA Doc. No. EPA/600/R-99/029. Chapter 4 summarizes research on pollutant loadings based on broad category of land use (e.g., industrial, commercial, residential) and specific type of land uses (e.g., roadways, parking lots, roofs, loading docks, etc.).  Tiefenthaler, L.L., Schiff, K.C., and Bay, S.M. “Characteristics of parking lot runoff produced by simulated rainfall,” July 2001. Westminster: Southern California Coastal Water Research Project, discusses results measuring toxicity of parking lot runoff based on parking lot use, maintenance (street sweeping), and duration and intensity of rainfall.  Oltmann, R.N., and Shulters, M.V., Rainfall and Runoff Quantity and Quality Characteristics of Four Urban Land-Use Catchments in Fresno, California, October 1981 To April 1983, 1987. USGS Open-File Report 84-710. Discusses results of sampling for a variety of urban runoff and dry weather urban pollutants in Fresno generally and with respect to land use type.  Ebbert et al., Water Quality in the Puget Sound Basin, Washington and British Columbia, 1996-98, USGS Circular 1216, and Ayers et al., Water Quality in the Long Island-New Jersey Coastal Drainages, New Jersey and New York, 1996-98, USGS Circular 1201, summarize major findings about water quality based on broad land use categories. and,  The National Urban Runoff Program (NURP) Study (USEPA 1983). Also, the structural treatment control measures proposed for new and redevelopment have been demonstrated to remove pollutants, when properly operated and maintained. References on this issue include those cited in the Staff Report issued with the May 2001 Tentative Order, and:  USEPA, Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters, 1993. Section 4 summarizes research on a wide variety of treatment controls.  Schueler, Thomas, A Current Assessment of Urban Best Management Practices: Techniques for reducing non-point source pollution in the coastal zone, 1992. Washington, D.C.: Metropolitan Washington Council of Governments.  Lichten, K.H. Adapting Engineered Vegetated Swales to the San Francisco Bay Area’s Mediterranean Climate: Law, Design, and Pollutant Removal Effectiveness, Master’s Thesis, 1997. UC Berkelely, summarizes research on pollutant removal seen in vegetated swales.3 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 Many individual articles summarize particular work, including positive aspects and shortcomings of individual treatment controls. These include work completed by the local urban runoff programs as well as projects completed nationally. Therefore, the record provides justification that widespread implementation of treatment measures proposed in the T.O. in new development and redevelopment projects will reduce pollutants in stormwater runoff in the area covered by the Santa Clara permit, pollutants that are known to cause or contribute to exceedance of water quality standards and impacts to beneficial uses. The commenters also state that the Tentative Order is inconsistent with the trial court’s holding in a case called City of Los Angeles v. State Water Resources Control Board, Los Angeles Superior Court No. BS 060 957. Trial court decisions do not establish precedent, thus they adjudicate only a particular dispute between two parties. Such decisions cannot be cited as binding precedent by other parties or in connection with other factual disputes. In this instance, the trial court’s decision is being appealed, so its effect is stayed even as to the parties to the dispute that was before the court. The Regional Board was not a party to the case and this particular tentative order was not before the court. Thus, the trial court’s decision has no legal effect on the activities of the San Francisco Bay Regional Water Quality Control Board.1a Comment: The Fact Sheet is insufficient: fails to contain principal facts, basis for permit conditions including references to regulatory provisions; reasons why alternatives do not appear justified, and calculations or other reasons why they are applicable [Morrison & Foerster 7].Response: While we do not concur that the fact sheet is insufficient, we refer the commenter to the responses to comments in this document as further supporting information.2 General Comments on the Tentative Order 2a Comment: It still appears we are approaching this backwards. As presented, we are focusing on large projects and then making exceptions for areas that discharge to creeks that are concrete lined or significantly hardened, and for projects in highly developed watersheds (whatever that means), and allowing waivers for areas above the unconfined drinking water aquifer. Instead, we should be providing incentives for including small developments and even individual remodel projects and taking every opportunity to reduce impervious surface and lessen runoff throughout Santa Clara Valley so that eventually we can give ourselves the opportunity to restore the natural resource and amenity values of our local creeks [CLEAN South Bay 2].Response: While the concept of providing incentives could have appeal, we disagree that the approach in the Tentative Order is backward or ineffective. The T.O. does request enhanced implementation of treatment measures for new and redevelopment, which may require increased effort and expense to implement by both Co-permittee staff and developers. Therefore, the implementation is phased, beginning with larger projects--those that create an acre or more of impervious area--which may more easily assume the additional overhead. As the Co-permittees and the development community become more familiar with the implementation, and their knowledge base increases, implementation of treatment measures for smaller projects would occur. In addition,4 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 the T.O. requires the Co-permittees to review and revise their local site development guidance and performance standards with respect to the potential to reduce urban runoff impacts. This has the potential to reduce impacts on a broader scale of projects. Overall, a goal of the T.O. is to require appropriate storm water controls in new and redevelopment projects where such controls are implementable and cost-effective. 2b Comment: Over-all, the proposed Provision C.3, while making some improvements over previous drafts, does not effectively utilize new and redevelopment as an opportunity to reduce storm water discharges and does not comply with the Clean Water Act or it’s implementing regulations [WaterKeepers 1].Response: We disagree that Provision C.3 does not effectively address new and redevelopment. The T.O. embodies our best professional judgment of the MEP standard for this stormwater program element.2c Comment: Numerous core provisions of the permit amendment are to be developed by the dischargers in the future, subject to the approval of the Executive Officer. Critical provisions which may be so modified or developed by the permittees include the minimal size thresholds for triggering design criteria (3.c.); development of an operations and maintenance program (3.e); development of criteria to exempt individual development projects from the requirements of the amendment (3.g); and source control measures guidance (3.k). We are particularly alarmed by Board staff’s proposal to delegate to the dischargers the development of peak flow impact criteria (3.f), which is one of the two core limiting criteria being proposed in the permit amendment (the other being the BMP design size criterion). By failing to specify which BMPs are appropriate for treating storm water discharges, the Board is also relegating the development of this essential component to be developed in the future by the co-permittees. By allowing the Board to approve the permit amendment without all of these necessary details, both the Board and the public are deprived of the information necessary to evaluate the permit amendment. Not only is this a poor decision making process from a policy perspective, but the delegation and delay violate state and federal laws. We request that Board staff include the necessary provisions in the permit amendment rather than leave them for future development by the dischargers [WaterKeepers 3].Response: We disagree that the Board and public are deprived of information necessary to evaluate the permit amendment. The proposed T.O. specifies the MEP level of implementation, but specifies the detailed means to achieve that goal only where necessary, to allow the Program maximum flexibility to select the most efficient and effective BMPs and local regulatory mechanisms to achieve MEP. We have proposed a standard for Operation and Maintenance programs to meet, while allowing municipalities to develop their own; likewise, municipalities will select from amongst well-established source control measures to develop their own tailored source control guidance and requirements. The development of the Hydrograph Modification Management Plan (Provision C.3.f) is proposed to occur with the Program's assistance. The Board must approve any waiver program developed by Co-permittees. In summary, we find the T.O. does not inappropriately delegate permitting authority.5 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20012d Comment: The primary beneficial use of streams and watercourses is to convey storm water away from land so that it may be put to beneficial use, and further to control flooding to protect life and property. The permit seems to disregard this primary beneficial use, which makes it inconsistent with basic land use policies and community needs [MacKay & Somps 2].Response: While drainage of stormwater runoff in a manner to minimize flooding in developed areas is necessary to protect life and property, and is a function of streams and a design goal for the flood management agency for their jurisdiction, it is not currently a beneficial use designated in the Board's Basin Plan. We disagree that the T.O. disregards this function of streams. The T.O. language seeks to avoid damage to the streams from excessive sediment erosion while this vital function of drainage occurs.2e Comment: Are sediments from erosion of creeks “pollutants,” or just part of a normal process? Even if the permit could prohibit all new development in this already developed area, it seems unlikely that this would make a significant difference in future creek erosion. And even if it did, there would still be an existing problem to be mitigated. Why not mitigate both situations with silt removal programs, or slope stabilization programs, without restricting the economic development of the community? [MacKay & Somps 7]Response: Excessive sediment production from human activities is considered a pollutant, and is not considered "normal," but there is always normal sediment erosion and transport by streams, even in the absence of human activity. Silt removal from waterbodies can be a very environmentally disruptive activity, and is to be avoided in general, just as slope stabilization is required at active construction sites. The implementation of this T.O. is intended and designed to have no significant negative impact on the economic development of Santa Clara County.2f Comment: Sediments in BMPs may be hazardous waste. It would be unfair for shopping centers and public parking lots to become hazardous waste generators [Silicon Valley Manufacturing Group 14].Response: We disagree that this will be any more than a very isolated problem, due primarily to spills. The evidence of application of these treatment measures is that they do not create nuisance conditions, or generate hazardous wastes, due to pollutant accumulation. In the circumstance of a spill, some treatment measures may provide the added feature of capturing concentrated pollutants, for convenient cleanup. Proper operation and maintenance should render properly designed treatment measures safe and non- hazardous.There is generally a clear difference between the definition of hazardous waste (which is based largely on human health effects, chronic and acute) and the type of pollutants that impair or contribute to the impairment of waters of the State, and may accumulate to any degree in stormwater treatment measures. While certain metals, such as copper, mercury, and nickel, and hydrocarbons are common components of urban runoff and thus could be found in sediments collected in treatment BMPs, only in rare circumstances, such as concentrated spills, would we 6 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 expect to find these metals in hazardous concentrations as defined by State and federal regulations, particularly given BMP maintenance requirements. Regardless, it is preferable for hazardous constituents to be contained in the sediment by treatment BMPs, rather than released to creeks, rivers and the Bay where they can accumulate, contribute to impairment, and be technically and economically difficult to clean up.2g Comment: The Program strongly urges the Regional Board to adopt language that recognizes and protects the locally-driven process of determining, adopting, and enforcing: 1) appropriate stormwater quality controls that are legally defensible and publicly supported, 2) land use controls and development standards that are tailored to local environmental conditions and issues, and 3) regional, cost-efficient storm drainage master plans where appropriate [Contra Costa Clean Water Program 8].Response: The T.O. is compatible with these goals, and addresses the equally important goals of adequate and consistent implementation of BMPs to the maximum extent practicable.2h Comment: The Regional Board should maintain an oversight role by establishing processes within permits for review of stormwater programs. The agencies should be provided the opportunity to target specific problems, develop site-specific and regional control strategies taking into account local environmental conditions, and secure the direction and involvement of their decision-making bodies [Contra Costa Clean Water Program 10].Response: We believe that these opportunities do exist within the Municipal Stormwater permit. We are willing to work with Dischargers on specific proposals to improve these opportunities. 2i Comment: The Tentative Order is too prescriptive. It is unlawfully prescriptive. For example, the volume and flow-based design standards specify that best management practices (BMPs) “shall be designed” or “shall be sized” in accordance with prescribed criteria. It limits local agencies’ flexibility in addressing water quality issues.Commenters include:  Applied Materials 6  BFI Waste Systems 5  Contra Costa Clean Water Program 1  Lockheed Martin Space Systems 1  Morrison & Foerster 9  Mountain View 5  Santa Clara County Cities Association 3  Tri-County Apartment Association 1Response: The Tentative Order is not unlawfully prescriptive. First, the standards do not prescribe the methods of compliance. Instead they establish criteria for compliance. The State Board addressed this issue in its precedential decision “In the Matter of the Petitions of the Cities of 7 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Bellflower, et al., the City of Arcadia, and Western States Petroleum Association,” State Board Water Quality Order: WQ-2000-011 (hereinafter, the “Bellflower decision”). The State Board held that the “…design standards required by the Los Angeles Regional Board are objective criteria that developers must achieve in designing their BMPs. The design standards are not separate BMPs. The standards tell what magnitude of storm event the BMPs must be designed to treat or infiltrate. They do not specify the BMPs that must be employed.” (Id. at page 12.) The Board also stated that “[t]he addition of measurable standards for designing the BMPs provides additional guidance to developers and establishes a clear target for the development of the BMPs.” (Id. at page 18.) Second, even if the standards were prescriptive, such prescription is not unlawful under section 13360. First, it is not a violation of section 13360 to give a discharger a range of alternative methods of compliance. (Orders No. WQ 87-9, 90-5.). Second, it is not a violation of section 13360 if there is only one practical manner of compliance with an order, whether that fact is explicit (Tahoe-Sierra Preservation Council v. Water Board (1989) 210 Cal. App. 3d 1426.) or implicit in the record (Pacific Water Conditioning Association v. City Council (1977) 73 Cal. App. 3d 546.) Furthermore, the prohibition in section 13360 does not apply to NPDES permits because they are governed by federal law. To the extent that federal law governing NPDES permits allows the prescription of methods of compliance (i.e., Best Management Practices), federal law will control over California Water Code section 13360. (Orders No. WQ 80-19, 82-15.) Flexibility is provided in the Tentative Order. For example, flexibility in BMP design is provided. The type of BMP to be implemented, as well as its design, is left to the discretion of the developer and the Co-permittee. Treatment BMPs are only required to be a specific size, in order to reduce pollutants in stormwater discharges to the maximum extent practicable.3 Comparison to the Los Angeles Standard Urban Stormwater Mitigation Plan (SUSMP) 3a Comment: The Tentative Order goes beyond or is different from the Los Angeles Standard Urban Stormwater Mitigation Plan (SUSMP). It also goes beyond the State Board’s “Bellflower” Decision.Commenters include:  BFI Waste Systems 4  Home Builders Association 4  Morrison & Foerster 13, 14  San Jose 9  Silicon Valley Manufacturing Group 4  Spectra-Physics 4  Sunnyvale 5  US DataPort 4Response: This comment is one of several that compare the T.O. to the SUSMP adopted by the Los Angeles Regional Board and upheld by the State Board. These commenters state that the T.O. differs from SUSMP. Other comments (3b and 3c below) noted that the T.O. is similar to the SUSMP and state that the T.O. should not incorporate any SUSMP provisions.8 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001We agree that the T.O. is both similar to and different from the SUSMP adopted by the Los Angeles Regional Board and affirmed on appeal by the State Board in its “Bellflower” decision. Although the State Board designated the Bellflower decision as precedential, it is important to note that the Regional Board must rely on the record developed in connection with this T.O. The factual record before the Board may in some instances include information that is identical to that which was before the Los Angeles Regional Board. In other instances the facts before this Regional Board may be different. The proposed T.O. is based on the facts in this Board’s record as well its staff’s best professional judgment of how to implement the Clean Water Act’s stormwater mandate in the Santa Clara Valley. The resulting T.O. is therefore different in some ways from the SUSMP. To the extent that the two are similar, it is unsurprising because they are based on similar facts, the same law and the same science. Having addressed the procedural reasons for the similarities and differences between the T.O. and the SUSMP, we will now clarify some of the major differences. The SUSMP adopted by the Los Angeles Board require treatment measures for commercial development creating more than 100,000 square feet of new impervious surface, including roof area, and residential projects of 10 or more units. In contrast, the T.O has a single larger project specification of one acre (43,454 ft2), for commercial, residential, industrial and streets roads and highways. That proposed one-acre specification reflects the fact that projects with one or more acre of land disturbance are required to be covered under Phase II NPDES stormwater permitting by March, 2003, under EPA regulations. One acre of residential impervious surface is roughly equivalent to that associated with 10 residential units under the SUSMP requirements. Data show that streets, roads and highways are significant stormwater pollutant sources (see references cited at comment 13p), and Caltrans is under statewide permit for its roads, highways and associated facilities, with stormwater treatment provisions. These categories at the one-acre impervious area project size are more inclusive than L.A. SUSMP for the commercial projects, including projects of half the size. Another significant difference from the SUSMP is that the T.O. includes projects from 5000 ft2 to one acre of impervious surface in the same categories described above. We believe, based on the record for this action, that this approach is more internally consistent and appropriate than the L.A. SUSMP. These smaller projects would come under the T.O. requirements in 2004. Data and literature cited throughout this document establish that these development project categories all produce pollutants in stormwater runoff. We do not see a substantial basis to exclude any of these development categories as we request the next phase of implementation of the T.O. in 2004. If the Co-permittees know of evidence that certain types of new development do not yield pollutants in runoff, the Program can make an alternate small project category proposal, with supporting evidence that it will attain comparable pollutant removal effectiveness. It is true that this T.O. contains requirements that, while similar to the L.A. SUSMP in general, require more types of new and redevelopment projects to install treatment measures. We believe that the staff report, fact sheet, and the supplemental fact sheet provide supporting information that a very broad range of development categories are found to contribute stormwater runoff pollution, and measures that treat these pollutants are effective, widely used, and can be installed and maintained for a reasonable cost. Moreover, the L.A. Regional Board staff has issued a second draft of a T.O. reissuing the L.A. County Municipal stormwater NPDES permit, and it goes beyond the SUSMPs upheld in the Bellflower Decision. That draft T.O. for permit reissuance has not yet been adopted by the Los Angeles Regional Board.9 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20013b Comment: Requirements in the Tentative Order are not justified by the local environment; Local conditions such as soil type, depth to groundwater, and cost of land, are not considered; The Santa Clara Basin is not the same as Los Angeles. The State Board (in the Bellflower et. al. decision) recognized that the numeric sizing standard (i.e., capture and treat 85 percent of the runoff) could vary depending on local rainfall and soil characteristics. Commenters include:  BFI Waste Systems 4  Consulting Engineers & Land Surveyors of California 1  Contra Costa Clean Water Program 2  Lockheed Martin Space Systems 2  Morrison & Foerster 11, 32  Mountain View 4  Santa Clara County 13  Silicon Valley Manufacturing Group 4  Spectra-Physics 4  US DataPort 4Response: We disagree that the requirements in the Tentative Order are not justified by the local environment. We have looked at local conditions and crafted language to address those conditions, most notably the provision to develop a Hydrograph Modification Management Plan. As noted above, the T.O. differs in significant ways from the SUSMP. Those differences are, in part, based on a recognition of the fact that the Santa Clara Valley is different from Los Angeles. The hydraulic sizing criteria in the T.O are specifically designed to incorporate local rainfall data, thus allowing for local conditions. The T.O. does not specify type of stormwater treatment measures to be designed for new development and significant redevelopment, only that such measures be appropriately sized. Therefore, infiltration-based measures would not be required where soil conditions are not appropriate, or where groundwater may be threatened. We have considered local conditions and have made significant modifications in the T.O. based on comments from stakeholders that specifically addressed local conditions and needs. Further, requirements similar to those in the T.O. have been implemented for up to several decades in other States and municipalities throughout the country, over a broad range of soil types and rainfall patterns, and including places where property values are very high relative to surrounding values. These areas include Puget Sound, Washington; Alexandria, Virginia; Montgomery County, Maryland; Denver, Colorado; Orlando, Florida; Portland, Oregon; and Austin, Texas. We note that pollutant loadings in the Santa Clara Basin are similar to those seen in other parts of California and the U.S., and stem from similar sources. There are other substantial similarities between the Santa Clara Basin and other areas, including similar urban designs using similar materials, use of storm drains, etc. These suggest that while local information must be appropriately incorporated into the T.O., the area is not so different as to require an approach substantially different from that taken in other similarly developed urban areas.3c10 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Comment: The L.A. SUSMP should not be used as the baseline for the T.O. Commenters include: Sunnyvale 3Response: The factual record that is being developed in connection with this Tentative Order may in some instances include information that is identical or similar to that which was before the Los Angeles Regional Board. In other instances, the facts before this Regional Board may be different. The proposed Tentative Order is based on the facts in this Board’s record and thus differs in some ways from the order that was the subject of the State Board’s Bellflower decision. To the extent that the Tentative Order and the Los Angeles Standard Urban Stormwater Mitigation Plan are similar, it is unsurprising because they are based on similar facts, the same law and the same science. 4 Comments on Bay Area-wide Consistency 4a Comment: Issuing the new development provisions in only the Santa Clara Valley Urban Runoff Pollution Prevention Program’s permit would be unfair to South Bay, putting the South Bay at an economic disadvantage in the Bay Area; Need Bay-Area wide approach.Commenters include:  Applied Materials 5  Barry Swenson Builders 1  Chamber of Commerce 8  Philips Semiconductors 5  Santa Clara (City of) 6  Santa Clara County Cities Association 3  Silicon Valley Manufacturing Group 6  Spectra-Physics 7  US DataPort 7Response: We disagree that the Tentative Order puts the South Bay at an economic disadvantage. We anticipate recommending that each of the stormwater programs in the Bay Area be amended or include equivalent provisions during permit reissuance of their municipal stormwater permits in the near term. The other Bay Area stormwater management agencies have acknowledged this through their submittal of comments (i.e., from Alameda, Contra Costa, Fairfield-Suisun). Further, the Regional Board’s Executive Officer stated this intent at the July18, 2001, workshop for the T.O. In addition, see our response to comments in section 9 below regarding costs.4b Comment: Asks that the Regional Board propose a "set of South Bay stormwater quality objectives...that relate to broader SF Bay ecosystem" [Silicon Valley Manufacturing Group 10].Response: We believe this comment relates to Comment 4a above, in which the commenters state that the Tentative Order puts the South Bay at a disadvantage. The Tentative Order does not establish “stormwater quality objectives,” nor does it attempt to impose one set of requirements on the South Bay that will not be repeated equitably throughout the Region.11 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200112 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20015 Comments on the Administrative Procedure Act & California Environmental Quality Act 5a Comment: The T.O. is far more than the normal NPDES permit activity and is actually part of a statewide plan to impose requirements on new development, thus the Tentative Order must go through the CEQA process. If the Regional Board relies on the State Board’s « Bellflower » decision, the Regional Board would be engaged in underground rulemaking in violation of the California Administrative Procedure Act. The Los Angeles SUSMP itself constitutes underground rulemaking. The proposed permit is a regulation.Commenters include:  Morrison & Foerster 10, 12  Sunnyvale 3, 14Response: We disagree with these comments. The T.O. is proposed in order to implement the requirements of a federal statute that requires that the Regional Board address stormwater impacts by imposing standards on new development. The specific provisions of this T.O. are not dictated by any statewide standard or underground regulation.There is no basis for the concern that this action would violate the Administrative Procedure Act’s prohibition on underground regulation. First, the Regional Board’s action is exempt from the Administrative Procedure Act under Government Code section 11352 that provides that approval of a permit by the Board is exempt from rulemaking requirements. (The State Board also addressed this point in the Bellflower decision at pate 12.) Second, even if the Regional Board’s action were not exempt under the Administrative Procedure Act, the Regional Board may apply a State Board decision that is designated as precedential without undertaking rulemaking under the Administrative Procedure Act. (Government Code section 11425.60.) In concluding that the Regional Board may rely on the State Board’s determinations in a precedential decision, it is important to note that the Board must also rely on its own record and professional judgment in reaching its determinations on this permit. (The response to comment 3a above further addresses this.)The T.O. attempts to build on and enhance existing performance standards that require new development and redevelopment to treat stormwater runoff to the maximum extent practicable (MEP). The T.O. proposes measures to meet MEP for Santa Clara that were devised based in part based on the staff’s review of measures for treatment of stormwater runoff from new development and redevelopment that are being implemented in many parts of the country, and in California by other Regional Boards. Because many municipal stormwater permits throughout the state are in the process of requiring that measure be implemented to address stormwater for new development, the commenter concludes that the Regional Boards are involved in a statewide plan to impose requirements. We disagree with this conclusion. In drafting the T.O. staff has considered local conditions and concerns. The T.O. reflects the Board staff’s best professional judgment of what constitutes MEP. While the various regional board staffs share information on effective approaches and our best professional judgment of what constitutes MEP, this is not underground rulemaking because it is based on the record before the Board.13 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20015b Comment: CEQA applies to permits that are not actions required by the CWA. C.3 represents a substantial departure from the Maximum Extent Practicable standard required by the CWA or the Bellflower interpretation. Therefore, CEQA is required. CEQA review would explore consequences of requirements [Morrison & Foerster 19]. The proposed amendment fails to comply with the California Environmental Quality Act (CEQA). The Water Code does not, as suggested in Finding 26, exempt the regional boards from all of CEQA’s provisions but only exempts the specific requirements to prepare an Environmental Impact Report. By exempting most new development sites from the core requirements of Provision C.3 (i.e. all sites under one acre); failing to prevent increases in the discharge volume of post-development storm water; and failing to connect BMPs to any sort of water quality-based criteria, the amended permit will result in widespread cumulative impacts which must be evaluated and mitigated by the permit. Similarly, Board staff are required to assess feasible alternatives, including more stringent requirements which may be more effective in preventing new storm water discharges. Please explain how the permit amendment complies with these general CEQA requirements [WaterKeepers 2].Response: We disagree that the T.O. requires actions that go beyond the CWA. The T.O. is based upon the requirements of the CWA and pursuant regulation. The State Board considered the issue of whether CEQA review is required in its Bellflower decision and concluded that under Water Code section 13389, a Regional Board is not required to comply with CEQA requirements regarding adoption of environmental documents in approving NPDES permits. (Bellflower, supra, at 15.) Thus, CEQA review is not required.Even if CEQA review is required, the Regional Board has provided review of the environmental impacts of implementation in the staff report for the July, 2001 Board workshop, and additional impact review in the greater record, as all documents prepared by staff address environmental impacts. We also disagree that Provision C.3 exempts most new development sites from its core requirements. Provision C.3 sets priorities and includes the largest development sites with the greatest potential stormwater runoff impacts first, then includes smaller development projects after municipalities have gained the experience needed to require effective stormwater treatment BMPs for these projects.6 Stakeholder Process Comments 6a Comment: There has been inadequate public involvement; didn't involve business community; the public comment period was too short; request that comment period be extended.Commenters include:  Applied Materials 1  Barry Swenson Builders 2  BFI Waste Systems 1  Lockheed Martin Space Systems 13  Philips Semiconductors 1  Santa Clara (City of ) 1  Silicon Valley Manufacturing Group 1, 914 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 Spectra-Physics 1  US DataPort 1Response: We disagree that the opportunity for public comment has been inadequate. We have attempted to include the business, manufacturing and development communities throughout the stakeholder process described below. Regional Board staff will increase outreach efforts to include the business community, and we have extended the process from July until October of this year to facilitate this goal. The public dialogue concerning the new development provisions began in 2000 with the NPDES permit reapplication process. Prior to reissuance of the NPDES permit in February 2001, Regional Board staff realized that stakeholders still had significant concerns about the new development provisions of the draft permit. Stakeholders agreed to go ahead with permit reissuance, but to continue to work on the new development provisions and to reissue the new development provisions on a later date. Regional Board staff and stakeholders met formally in two additional meetings to discuss the provisions prior to the start of the public comment period. Industry and public interest group representatives were present at stakeholder meetings and provided comments that were useful in drafting the language of the T.O. During the stakeholder process that led to development of the T.O., Regional Board staff believed that interested business entities were involved in the process, based on the inclusion of several business groups on the stakeholder mail/email lists. At the close of the public comment period for the revised permit on November 13, 2000, the Regional Board received written comments from the San Jose Silicon Valley Chamber of Commerce; the Home Builders Association of Northern California; the Tri-County Apartment Association; the Santa Clara & San Benito Counties Building & Construction Trades Council; and the National Association of Industrial and Office Properties. Each of these business entities commented on the new development provision. 6b Comment: Stakeholder process has been good, but needs more time. Or: please move back schedule for T.O. consideration by the Board.Commenters include:  Campbell 4  Monte Sereno 1  Santa Clara (City of) 8  Santa Clara County Cities Association 1  SCVWD 6  Spectra-Physics 8  U.S. DataPort 8  VTA 1Response: In response to this comment and similar comments, the schedule for T.O. consideration has been significantly extended. Staff plans to reissue a revised T.O. on August 8, 2001; to hold additional stakeholder meetings and participate in upcoming symposia; to take five weeks of additional public comment on the T.O.; and to schedule the T.O. for consideration at the Board’s October 2001 meeting. 15 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20016c Comment: Outstanding permit issues should be addressed through a stakeholder-based process, such as the Watershed Management Initiative.Commenters include:  Morrison & Foerster 36  San Jose 7  Santa Clara County 13Response: We agree with the concept that the Watershed Management Initiative is a stakeholder- based group involved in researching and identifying a variety of implementation actions that will further water quality goals in the Santa Clara Basin. However, the stakeholder process that has been oriented toward the amendment of the new development provisions over the past 12-18 months has been successful in identifying the concerns of stakeholders and discussing the issues. While we understand that not all the issues can be resolved to the full satisfaction of all the stakeholders, the process has led to significant compromise and, we believe, an improved Tentative Order. Moving this stakeholder process to the more broadly focused Watershed Management Initiative would likely result in significant delays in implementation of the new development provisions. We have continued to meet with the stakeholders even after the release of the revised T.O. so that we can fully discuss and, where appropriate, address any concerns that they may have.7 Comments regarding the Findings Section of the Tentative Order 7a Comment: With respect to Finding #5, include further language regarding the legal authority of the Co-permittees. The first part of Finding #5 notes that dischargers have limited or no direct jurisdiction over the presence of certain pollutants in stormwater runoff. The Co-permittes are then required to implement control measures or require developers to implement control measures to reduce entry of these pollutants. This latter requirement needs to be qualified by the limited or lack of Co-permittee jurisdiction as well [Alameda CCWP 9].Response: The purpose of Finding #5 is to indicate that, while there are sources Co-permittees cannot control (e.g., atmospheric deposition), Co-permittees do have authority to require development projects to implement control measures for the types of pollutants named in Finding #5. Indeed, since 1996 each Co-permittee has stated it has adequate legal authority to require post- construction controls at development projects in its Annual Reports. We believe that Finding #5 is adequately clear as written.7b Comment: Findings #4-8 indicate that “development” contributes the primary impacts to “beneficial uses” of streams and watercourses [MacKay & Somps 1].Response: Comment noted. We do not agree that those Findings imply or state that development is the sole or the primary contributor to impacts to beneficial uses of streams and watercourses. Rather, development is characterized as a significant contributor. Studies of pollutants in urban 16 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 runoff, such as those cited in the Staff Report (pp. 6-7) and in this response to comments (e.g., references cited at response to comment 1), have confirmed this characterization. 7c Comment: The reader is led to believe in Finding #4 that development always means conversion of natural vegetated lands to concrete and asphalt. We suggest that this is misleading and needs to be corrected. Specifically, development sometimes converts intensely farmed or “industrialized” properties to homes and yards to the benefit of overall water quality. What is known about the contribution of mining, agriculture, and remote unsupervised industrial uses to existing storm water pollution? Could new development be beneficial to water quality in some cases? [MacKay & Somps 4]Response: We disagree that Finding 4 is misleading. It may be the case that redevelopment of a heavy industrial or intensively farmed site to a residential land use could lead to a reduction of pollutant runoff, if the industrial site were not adequately managed under current regulation, or if the precursor land was farmed with poor management that led to excessive soil erosion or pesticide and fertilizer runoff. A further improvement would be expected if the new development also addressed pollutants with appropriate treatment measures for the life of the project.7d Comment: We suggest that the strong anti-development language in Finding #4 and 5 be tempered by a description of what part new development plays in the present overall storm water pollution problem [MacKay & Somps 5].Response: We believe the language in the subject findings is not “anti-development,” but rather merely descriptive of established impacts of development that can be addressed by measures like those required in the T.O. New development plays a significant role in overall stormwater pollution. This role must be appropriately addressed, just as all aspects of the Santa Clara Stormwater Program must be implemented.7e Comment: Finding #6 talks about the potential for new development to cause physical modifications to water courses such as bank erosion and channel widening. It seems to us that erosion and widening of channel ways is the process by which water course features were naturally created in the past that these processes will continue in the future with or without new development. Shouldn’t this be recognized in the discussion? [MacKay & Somps 6]Response: We do not believe this discussion is necessary, because Finding 6 is about the increase in bank erosion and widening of channels (for example) that is associated with new development. Streams often develop stable, or dynamically stable, configurations in given reaches for long periods of time. Some streams are naturally in structural flux constantly. The T.O. is intended to address unnatural acceleration of erosion processes, or destabilization through excessive erosive force of otherwise stable channel cross-sections.17 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20017f Comment: Finding #7 says that runoff from urban areas “greatly” accelerates downstream erosion. While this statement would seem to be true, the subject of this document is new development rather than urban development as a whole. Just how much new impervious area is expected as compared to existing impervious area? What percentage of each drainage basin is currently impervious and what is the predicted percentage at “buildout.” This kind of information would assist in this decision making process and assist in judging whether or not the rules proposed really will “greatly reduce” adverse impacts [MacKay & Somps 8].Response: We believe that, by including significant redevelopment as required by the Clean Water Act, the Tentative Order is about “urban development as a whole”. However, over the near term, the comment is accurate, and is the reason why development of a Hydrograph Modification Management Plan (HMMP) is required in the T.O., because there are many specific, local answers to these questions. The present extent of watershed development within the Co-permittee’s jurisdictions varies across the different creeks’ catchments. The extent of development in the future depends on the whole of the planning process, including existing local plans/zoning, citizen involvement, and opportunities for innovative design to reduce impacts. Benefits are expected in some presently partly urbanized catchments, and there remains substantial opportunity to attain significant benefits by avoiding impacts to creeks in presently undeveloped portions of drainage basins, such as headwaters and near-headwaters creeks in hill areas and valleys. Preparation of the HMMP will allow an opportunity to appropriately address these issues as a part of project planning and watershed development. 8 Best Management Practices Comments 8a Comment: Provision C 3 fails to prevent the discharge of new sources of pollutants. The proposed Provision fails to specify which BMPs may be used, which are appropriate for which applications, which pollutants should be controlled, or any actual benchmarks for BMP performance (e.g. percentage reductions for specified pollutants or maximum levels of pollutants in treated effluent). By contrast, federal regulations, now supported by the State of Washington, require that discharges from new develop not exceed water quality standards. The proposed Provision C 3 does not even mention water quality objectives and does not in any way provide assurance that the management programs and BMPs broadly required will not cause or contribute water quality violations. With no requirements for actual performance, City officials, planners, developers and private land owners all have no incentive to make sure that BMPs are actually built and maintained to be effective. This may result in the waste of considerable taxpayer dollars, the imposition of real costs on developers and the expenditure of Staff resources all without any assured benefit. We believe that failure of the proposed Provision 3 C to directly connect required management programs and BMPs to actual improvements in water quality undermines the very purpose of re-visiting the new development and redevelopment provisions of the Santa Clara permit. [WaterKeepers 4]Comment: We are concerned that the proposed Provision does not provide any prescription for choosing BMPs that may achieve standards, are appropriate to address the pollutants expected to be discharged from a particular site, or have any significant impact in improving water quality. We are particularly concerned that many BMPs have resulted in negative pollutant removal efficiencies when scouring occurs during larger storm events. A negative pollutant removal efficiency occurs 18 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 when the BMP actually increases the discharge of a particular pollutant, ostensibly by creating pollutant sinks which release accumulated pollutants in times of heavy run-off. This should be addressed and prohibited by the permit. See the Investigation of Structural Control Measures for New Development prepared for the Sacramento Stormwater Management Program. The permit should further provide guidance in determining which BMPs are appropriate and should specify criteria for determining which pollutants must be reduced or eliminated through BMPs. [WaterKeepers 8]Response to WaterKeepers comments 4 and 8: The T.O. requires BMPs be implemented at new development and redevelopment projects to treat stormwater to the maximum extent practicable (MEP), the standard required by EPA regulation. The T.O. intentionally provides flexibility in determining which stormwater treatment BMP(s) may be used at a new/redevelopment project to meet the MEP standard for this permit. Provision C.3 must be viewed as part of a larger municipal stormwater permit (Order 01-024); other parts of Order 01-024 address water quality standards where applicable, particularly in relation to water bodies that have been listed under Section 303(d) of the Clean Water Act. We believe, and the stakeholder process has illustrated this, that city officials and planners need to dedicate time and resources to fulfill the requirements of the T.O., and thus they have significant incentive to make their programs work, so as to avoid having to take additional measures to maintain waterways that become listed as impaired under Section 303(d). We concur that poorly implemented or maintained BMPs could potentially result in negative impacts, and thus we have included operation and maintenance requirements in the T.O.8b Comment: The permit should specify criteria for determining which pollutants must be reduced or eliminated through BMPs. For example, the San Diego MS4 permit requires that developers conduct an analysis to identify “pollutants of concern” which must then be reduced to maximum extent practicable [WaterKeepers 9].Response: Treatment measures should be tailored, where sufficient information on potential pollutants exists, for most efficient stormwater treatment. However, these treatment measures are intended to operate for the life of the project, and often the use of a particular structure will change during that time, so treatment measures should not become overly specific, so that other pollutants are removed as well. The current T.O. leaves this level of design decision at the local level. The T.O. does require Co-permittees to specify source control BMPs as well as treatment BMPs. In developing internal guidance for requiring source controls at new developments, Co-permittees and developers will need to identify potential “pollutants of concern” from their various types of development.8c Comment: Requiring treatment controls may result in a number of unintended consequences, which have not been addressed as part of the Board’s documents. These include, for example: potential public health problems (vector control issues) and proliferation of detention basins in many areas of Santa Clara Valley where infiltration is not possible.Commenters include:  Milpitas 1819 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 Morrison & Foerster 36  San Jose 13  Santa Clara County 6  SCVURPPP 9  Saratoga 3  Silicon Valley Manufacturers’ Group 7  Tri-City Apartment Association 3Response: To the extent that there are negative consequences to stormwater treatment controls, these issues can be addressed through proper design and maintenance. Vector control issues, particularly mosquitoes and potentially rodents, can arise in areas of standing water and relatively warm temperatures. However, where retention basins (which are permanently wet and thus could have standing water) are selected as the most cost-effective treatment BMP, we expect that they will be designed to minimize vector issues. In addition, effective mosquito control options and designs for vector minimization are available for units where standing water will be present for more that 72 hours. For example, marsh vegetation can attract birds that consume mosquitoes and, where wet ponds will hold water for extended periods, mosquito fish that consume mosquito larvae can be planted. We encourage the Co-permittees to work with their County vector control on these issues during design of treatment. Retention basins can offer a number of aesthetic advantages and are considered property value amenities in many areas (Urban Runoff Quality Management, WEF Manual of Practice No. 23, ASCE Manual and Report on Engineering Practice No. 87, pg. 223. 1998, Economic Benefits of Runoff Controls, USEPA, EPA 841-S-95-002, 1995, 16 pp.). In recognition of the potential vector control issues, an additional Finding has been added to the Tentative Order. The Finding (no. 12) identifies the potential vector issues related to BMP implementation and the role of collaborative program development between municipalities and vector control agencies in addressing and minimizing vector production. The “proliferation of detention basins” is another of the commenters’ concerns, and we understand this concern to be that detention basins are considered unattractive. Detention basins are one treatment option and thus are only one potential outcome of the requirements. We believe that detention basins can be designed to be attractive (Urban Runoff Quality Management, WEF Manual of Practice No. 23, ASCE Manual and Report on Engineering Practice No. 87, pg. 220. 1998, Economic Benefits of Runoff Controls, USEPA, EPA 841-S-95-002, 1995, 16 pp.). Where detention basins are selected as the treatment BMP, aesthetically-pleasing detention basins will likely enhance property values.8d Comment: Need to aid municipalities in differentiating BMPs. One could apply basic treatment to certain sites and enhanced treatment to others [Stormwater Management].Response: Regional Board staff will assist the Co-permittees in the near term and on an on-going basis as requested.20 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20018e Comment: The Board should evaluate the effectiveness of post-construction controls and continue to develop more efficient technologies. City staff and developers have insufficient data to evaluate technologies now. Also, the Board should consider the life-cycle costs of post-construction controls. Commenters included: Belmont 2, 3Response: Studies of the effectiveness of many types of post-construction controls have been completed, and Regional Board staff will discuss such information at workshops to be conducted for stakeholders in the coming weeks. Because we recognize that City staff and developers do not have extensive experience with stormwater treatment BMPs, the Tentative Order is structured to require such BMPs on larger projects first, so that experience may be gained before the smaller projects are considered. The economic analyses conducted and reviewed by Board staff do consider both construction and operation and maintenance costs. The implementation of permit requirements under federal law, the Clean Water Act, does not require a separate cost benefit analysis. Instead the standard is reasonable costs, or costs not out of proportion to environmental benefit, from the MEP standard. Relative cost comparisons and BMP cost calculations performed indicate that the costs of stormwater treatment BMPs at new and redevelopment sites are expected to be reasonable for the water quality benefits they will bring. See references cited under Comment 20a, and Schueler, T., 1999. “The Economics of Watershed Protection.” Ellicott City, Maryland: The Center for Watershed Protection, which summarizes nationwide studies to support the statement that watershed planning and stormwater management provide positive economic benefits.9 Comments Regarding Costs 9a Comment: The provisions of the Tentative Order will be too expensive to implement. Evaluating stormwater controls will require substantial effort, technical expertise, and time for analysis; local agencies are not equipped nor should they be burdened with this activity. The requirements have the potential to lengthen project approval time; there are costs to municipality to develop procedures; they represent an unfunded mandate.Commenters include:  Chamber of Commerce 3  Contra Costa Clean Water Program 9  Cupertino 3  Lockheed Martin Space Systems 5  Milpitas 1, 2, 3, 4  Morrison & Foerster 22, 27, 30  Mountain View 2  National Association of Industrial & Office Properties 2  Philips Semiconductors 3  San Jose 11, 12  Santa Clara County Cities Assoc. 3  Saratoga 1, 221 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 Silicon Valley Manufacturing Group 7, 8  Sobrato 3  Sunnyvale 7  Tri-County Apartment Association 1Response: We do not agree that the requirements will be too expensive. Our analysis indicates that they will generally be 1-2% of project costs. The comments also note that permittees lack expertise to implement the permit. Again, we disagree. The Co-permittees have an existing performance standard for new development, which includes most of the key components of the T.O., and which they have committed to implementing since at least 1997. Therefore, there should already be a knowledge base and some internal structure for implementation. To address the issue of project approval time, the T.O. requirements are structured to include larger projects for the first few years, so that Co-permittees can gain experience at that level before implementing the requirements at smaller projects. The implementation of Group 2 has been extended a year in this T.O., which should also ease the costs of implementation at the local agency level. The requirements of the Tentative Order are not within the definition of “unfunded mandate” that would require reimbursement of costs under the California Constitution, because they are derived from the federal Clean Water Act, as opposed to State Law. Because the T.O. would implement a federal requirement, rather than a State requirement, the T.O. is not an “unfunded mandate” by the State. The State Water Resources Control Board (SWRCB) has previously determined in several circumstances that regional board orders are exempt from the requirement for reimbursement under the California Constitution. The commenters state that the Tentative Order is inconsistent with the trial court’s holding in a case called City of Los Angeles v. State Water Resources Control Board, Los Angeles Superior Court No. BS 060 957. Trial court decisions do not establish precedent, thus they adjudicate only a particular dispute between two parties. Such decisions cannot be cited as binding precedent by other parties or in connection with other factual disputes. In this instance, the trial court’s decision is being appealed, so its effect is stayed even as to the parties to the dispute that was before the court. The Regional Board was not a party to the case and this particular tentative order was not before the court. Thus, the trial court’s decision has no legal effect on the activities of the San Francisco Bay Regional Water Quality Control Board.9b Comment: The cost of permit compliance may drive up the presently unaffordable cost of housing.Commenters included: Saratoga 4 Response: We understand the stakeholders’ concerns regarding the potential effect of the proposed requirements on the already high cost of housing in the South Bay area, but disagree that the T.O will have a major impact on housing costs. In implementing the municipal stormwater requirements, costs must be reasonable, that is, not out of proportion to environmental benefit, from the MEP standard. Relative cost comparisons and BMP cost calculations performed by Regional Board staff and by a private consulting civil engineer indicate that the costs of stormwater treatment BMPs at new and redevelopment sites are expected to be reasonable for the water quality benefits they will bring, with costs in the 1-2% of total project cost range.22 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 20019c Comment: All these costs are incurred after the budget is set for the next year, meaning municipalities will need to struggle to fund these requirements. Commenters included: Morrison & Foerster 28Response: The implementation schedule in the Tentative Order attempts to provide the Co- permittees with adequate planning and budgeting time in order to avoid such problems. The extension of the stakeholder involvement process and associated delay in implementation of the T.O.’s requirements may also benefit the Co-permittees by allowing them additional planning time.10 Comments on Land Area Required for BMPs Comment: Loss of land to BMPs will reduce project size or render projects financially infeasible [Philips Semiconductors 4]. In an urban setting the least land use intensive treatment options would be the most desirable, including inlet filters or underground clarifiers. The permit should address and encourage these types of devices [MacKay & Somps 12]. Note that water treatment ponds operate differently from detention ponds and cannot normally serve the same purpose. And so treatment areas and detention areas, if required, will both require land within a proposed project, further impacting its economic viability [MacKay & Somps 13]. Local regulatory landscape requirements for industrial and commercial projects are intended to provide scenic buffer areas and may not be compatible with treatment requirements. And so it cannot be assumed that treatment and/or detention facilities can be accommodated within already required landscape areas [MacKay & Somps 14].Response: For treatment of stormwater for removal of pollutants, landscape based treatment measures (which some believe to “use too much land”) are just one of many options. The Tentative Order does not specify which type of treatment BMP must be implemented. Treatment measures can also be placed in below-pavement vaults that can be walked over or driven over, using little or no land. Even the landscape-based measures (e.g., vegetated swales and biofilters, bioretention facilities, detention basins, etc.) can be integrated into existing required landscape areas of a project, achieving a dual use. For those projects that are determined to require control of changes in the peak rate and volume of runoff, the amount of land required may be more of an issue. It may be that large development parcels with large amounts of impervious surface creation would require a larger commitment of land for some combination of infiltration-type BMPs and or detention volume, compared to today’s standards. However, these projects often are already required to create sizeable basins for flood control purposes, which are often sized for detention of much larger volumes than are necessary for the purposes of these requirements. It may be feasible to use these flood control detention basins for the purpose of peak flow management also, and this has been done in some projects, including Bailey Ranch in Hayward and subdivision projects in Davis. It is expected that developers will find ways to reduce both runoff and land requirements for BMPs through such means as disconnecting impervious surfaces, storing and reusing roof runoff, utilizing innovative parking lot design to minimize impervious surface while maintaining the total number of parking spaces, building green roofs, and using other means, many of which are described in BASMAA’s Start at the Source Manual. 23 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200111 Smart Growth / Effects on Housing Comments 11a Comment: Costs to/effects on housing/infill must be considered. The Tentative Order does not consider smart growth or "unintended consequences" on housing. The permit should address practical treatment policies to reduce pollutants, not try to inhibit development. The permit should consider State requirements to remove governmental constraints from residential development. The T.O. conflicts w/existing state law.Commenters include:  BFI Waste Services 2, 7  Chamber of Commerce 3, 6  Cupertino 1  Home Builders Association 2  Lockheed Martin Space Systems 5  MacKay & Somps 3  Milpitas 2  Monte Sereno 3  Morrison & Foerster 29, 30, 31  National Association of Industrial & Office Properties 2  San Jose 5, 11  Silicon Valley Manufacturing Group 7, 8  Sobrato Development Companies 3, 6  Spectra-Physics 4, 6  Tri-County Apartment Association 2  US DataPort 4, 6Response: Based on analyses conducted or reviewed by Board staff, the T.O. is expected to have a neutral effect on housing production, infill, affordable housing, transit-based housing and other aspects of smart growth. The overall cost estimates of 1-2% for treatment measures should not seriously impact a decision to build a project. The waiver provision will provide relief for dense project situations, where treatment cannot even be placed below grade. The more expensive management of peak runoff flows will rarely be called for in these situations, with a highly developed watershed, where the creeks were already damaged decades ago. We note that appropriate design of new and redevelopment projects to minimize environmental impacts, including impacts from stormwater runoff, is a component of smart growth. By better defining the acceptable criteria for this design, the T.O. should assist cities in their efforts to implement this aspect of their smart growth plans.11b Comment: The T.O. violates Porter-Cologne requirement to consider economics and the need for developing housing when developing Water Quality Objectives.Commenters include:  Monte Sereno 3  Morrison & Foerster 824 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 Silicon Valley Manufacturing Group 8Response: Economics relative to the MEP standard are considered, and costs of implementation are found to be in a reasonable range. Likewise, impacts on housing production are expected to be neutral, at the 1-2% of total project cost level. We note that for some projects, implementation of these requirements by using narrower streets, vegetated surface drainage systems, etc., may reduce overall project costs as compared to constructing the project using traditional wide streets and underground piped storm drain systems (See references cited under Comment 8e, above, and Comment 20a, below). The Tentative Order does not develop Water Quality Objectives.11c Comment: Provisions of the T.O. have the potential to lengthen project approval times. There is concern this will result in delayed completion dates.Commenters include:  Morrison & Foerster 30  Philips Semiconductors 3Response: We recognize that Co-permittees and developers may have concerns about potential delays in the project approval process. The provision for third party certification of compliance is provided to help alleviate this concern, and the experience gained by some of the Co-permittees implementing the existing performance standard should also provide a starting pool of expertise. The year until implementation will be a chance to gain training and create and deliver outreach to the development community. We have attempted and will continue to offer all available information, literature, examples, and other means to transfer expertise to the necessary individuals. We are encouraged by the Santa Clara Valley Urban Runoff Pollution Prevention Program’s planned efforts to facilitate transfer of expertise from municipalities with experience in this area to the Co-permittees.11d Comment: BASMAA’s Start at the Source Manual, a document the Regional Board and Bay Area stormwater programs support, promotes new development designs that minimize Directly Connected Impervious Areas (DCIA) as the first line of defense in reducing runoff and resulting pollutant loads. The subject tentative order provides no incentives for reducing DCIA nor does it even mention DCIA anywhere in the document [Contra Costa Clean Water Program 7]. We disagree with the decision not to incorporate the concept of directly connected impervious area (“DCIA”) throughout the proposed C.3 provision’s requirements and particularly in the definitions of the types of projects to be covered by its requirements [Morrison & Foerster 2].Response: The Tentative Order does encourage minimization of DCIA. Where impervious areas are not connected to each other, infiltration and filtration through vegetation of stormwater runoff can occur, and the coefficient of permeability of the site will decrease (in proportion to the amount of area left impermeable). This reduces the amount of runoff from a site and can reduce the total amount of runoff generated from storms. As a result, stormwater treatment BMPs may then be smaller in size. In addition, the Tentative Order directly encourages the minimization of impervious surfaces in Provision 3.C.j, Site Design Measures Guidance and Standards Development.25 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001While simple in concept, the practical definition of sufficient “disconnection” of impervious areas for effective pollutant reduction is complicated. It is necessarily site- and project-specific and therefore difficult to specify generally for the entire permit area. It is much more effective to determine whether disconnected impervious areas allow treatment of stormwater runoff based on site-specific development plans, reviewed at the local level, than it would be to create one definition for effective DCIA in the Tentative Order.12 Comments on the Wording of the Tentative Order 12a Comment: The tentative order lacks specificity and, accordingly, is difficult to understand and follow. For instance, provision C.3.c.i (Group 1 Projects) defines the term “significant redevelopment projects” in relation to square footage (one acre or more). However, the same term is then used in provision C.3.c.ii (Group 2 Projects), which applies only to smaller projects. This style of loose phraseology is found throughout the tentative order and makes it extremely difficult to follow what is being required.Commenters include:  Morrison & Foerster 23  Palo Alto 1  Santa Clara County 1  SCVURPPP 1Response: We have attempted to clarify the language given in this and other examples and similar uses of phrases in the Tentative Order. In addition, the Regional Board staff is holding workshops in the South Bay in August and September with program participants and members of the public before the Tentative Order is brought back to the Board. These workshops will provide an opportunity to identify those sections that should be further clarified.12b Comment: Commenter is apprehensive over the “full impact of proposed regulations;” Board staff are unable to fully explain many of the proposed requirements.Commenters include: Cupertino 2Response: We have attempted to clarify the language in the Tentative Order in response to this and similar comments. In addition, Regional Board staff will hold workshops in the South Bay in August and September to provide explanations, examples, and other information needed by stakeholders to fully understand the proposed requirements. The commenter will have opportunities to identify areas of the Tentative Order still in need of clarification over the next several weeks.12c Comment: Modify provision C.3.b.ii to read as follows: “…ensure that post-development post- project runoff does not exceed pre-development pre-project levels for such pollutant(s),…”. This clarification makes it clear that redevelopment projects are not expected to reduce pollutant loads to levels that existed prior to the original development of the site.26 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Commenters include:  Palo Alto 2  Sunnyvale 9Response: While we have made the suggested change in the Tentative Order, we believe that an appropriate goal for all projects is to reduce pollutants to the pre-development condition, in an effort to achieve the regulatory requirement of reduction of pollutants in runoff from the site through implementation of BMPs to the MEP. The existing pollutant loads coming from redevelopment sites can result in water quality exceedances and degradation to beneficial uses of waters.12d Comment: Provision C.3.c creates confusion as to the required schedule for implementing modified project approval processes by the Dischargers. The tentative order requires that modified approval processes be implemented by July 15, 2002, in accordance with the Implementation Schedule (provision C.3.o). This is consistent with provision C.3.c.i which states that “Group 1 Projects consist of all projects for which a development application has not been deemed completed as of the effective date of Provision C.3.b…”. However, provision C.3.c also contains the confusing statement that “Group 1 Projects are subject to all the requirements of this Provision upon implementation.” Please amend this sentence to clearly state or refer to the July 15, 2002 required implementation date [Palo Alto 3].Response: Clarifying language has been added to Provision C.3.c in response to this comment. 13 Project Categories Comments 13a Comment: The definition of Group 2 Projects should be modified to clarify that it applies to projects “for which a development application has not been deemed complete as of the effective date of Provision C.3.b.”Commenters include: Palo Alto 5Response: In response to this comment, the Group 2 definition has been clarified, and language regarding “in-the-pipeline” projects (i.e., the point in the project approval process a project must be past in order for requirements not to apply) has been added. However, Regional Board staff will continue to discuss that language with stakeholders to develop the most workable and equitable language possible.13b Comment: We are concerned that interior remodels will be regulated; want to avoid a disincentive for interior remodels.Commenters include:  Campbell 3  Monte Sereno 227 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: In response to this and similar comments, the definition of “significant redevelopment” has been clarified to indicate that strictly interior remodels do not trigger the requirements of the T.O.13c Comment: Some cities’ projects are relatively small. Therefore, smaller projects would be regulated by the T.O. [Campbell 2].Response: We concur that some Co-permittees’ new development projects are small in relation to the Group 1 and 2 Project categories. In response to this and similar comments, we have modified the Tentative Order and deleted the requirement that Co-permittees determine the size that would encompass 80% of their new development projects. Instead, the same project size categories will be in place in each jurisdiction.13d Comment: Clarify the meaning of Group 1 relative to redevelopment, and especially regarding the net creation of impervious surface. Also, define significant in section C.3.c.i.Commenters include: Milpitas 6, 7Response: In response to this and similar comments, the definition of “significant redevelopment” has been clarified in the Tentative Order. The term “significant,” as it is used in the T.O., is taken from the Clean Water Act, which requires that municipalities control stormwater runoff impacts from “significant redevelopment” projects.13e Comment: Clarify that there is a threshold project size below which C.3 does not apply.Commenters include:  ACCWP 8  Santa Clara County 8  SCVURPPP 12Response: The suggested clarification has been made in Provision C.3.c.13f Comment: Add language to Group 2 similar to that in Group 1 “for which a development application has not been deemed complete;” Change “(i.e., not in group 1) new and” to read “(i.e., not in group 1) new development and”Response: The Group 2 definition has been clarified, and language regarding “in-the-pipeline” projects (i.e., the point in the project approval process a project must be past in order for requirements not to apply) has been added. However, Regional Board staff will continue to discuss that language with stakeholders to develop the most workable and equitable language possible.28 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200113g Comment: I seriously question the cost-effectiveness and overall benefit of lowering the threshold to 5000 square feet. This is far more restrictive than L.A. SUSMP, without justification for the more restrictive requirement. I recommend that the one-acre compliance threshold be utilized for the five-year permit term, allowing for more careful evaluation of the potential need for further reduction of the minimum project size to protect water quality. If the lower project size threshold is not eliminated, the existing language should at least be clarified. The Alternative Project Sizing Proposal language (provision C.3.c.iii) is confusing. I suggest that the second paragraph be modified to read as follows: “Using this information, each Discharger may propose, for approval by the Executive Officer, an alternative minimum project square footage criteria for conformance with Provision C.3 beginning July 15, 2003. The proposed alternative square footage criteria should be selected to encompass approximately 80% of the new impervious area created in a typical year. In the event that a Discharger makes no such proposal, 5000 square feet shall become the minimum square footage criteria for conformance with Provision C.3 beginning July 15, 2003.” [Palo Alto 6]For its Phase II stormwater regulations, EPA looked at all sizes for construction & concluded one acre is optimum. If less than one acre is retained in the T.O., we recommend you use hillside single family residence and parking lots of 5000 sq.ft. categories only [Alameda Countywide Clean Water Program 1, 2].Response: Because of Co-permittees’ concerns regarding implementation of BMPs at smaller, Group 2 projects, the implementation date for Group 2 projects has been extended to three years after adoption of the Tentative Order, October 2004. We believe the Group 1 and Group 2 Project categories address significant projects in a phased and consistent approach designed to assist municipalities in managing their resources and assuming this workload. While the L.A. SUSMP categories may be appropriate under the permit adoption process which occurred in the Los Angeles region, the stormwater runoff pollutant monitoring data for the South Bay indicate that urban runoff from all types of development contribute pollutants to creeks and the San Francisco Bay. Such data may be found in, among other sources, the Bay Area Storm Water Management Agencies Association, October 15, 1996 report, “San Francisco Bay Area Stormwater Runoff Monitoring Data Analysis, 1988-1995.” Oakland: Woodward-Clyde Consultants (now URS Corporation). This report summarizes results of stormwater data collection and analysis work in the Bay Area, including work done in Alameda and Santa Clara counties, findings on storm water toxicity, pollutant concentrations related to land use, and related information. In addition, Heaney, J.B., Pitt, R, and Field, R. Innovative Urban Wet-Weather Flow Management Systems, 1999. USEPA Doc. No. EPA/600/R-99/029. Chapter 4 summarizes research on pollutant loadings based on broad categories of land use (e.g., industrial, commercial, residential) and specific type of land uses (e.g., roadways, parking lots, roofs, loading docks, etc.), and finds pollutants in stormwater runoff from this broad array of urban impervious surfaces. The Alternative Project Sizing Proposal has been modified to allow Co-permittees to develop their own Group 2 Project definition, within the guidelines of Provision C.3.c.iii. The provision requires that the alternate proposal be supported with evidence that it will be "comparable in effectiveness".13h Comment: We request that all elements of Provision C.3, including Numeric Sizing Criteria (C.3.d.), Operation and Maintenance requirements (C.3.e) and the Limitation on Increase of Peak 29 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Storm Water Runoff Discharge Rates (C.3.f) be applied to any development project where 5,000 square feet or more of new impervious surface is created or added. Again, the Provision is less stringent than L.A. SUSMP and thus fails to comply with an ostensible benchmark for determining the MEP effort required. Why is it not practicable for dischargers in the South Bay to meet these MEP benchmarks? [WaterKeepers 10]Response: It is staff's judgment that the T.O. represents MEP for the Santa Clara Basin based on the information in this permit adoption record. Moreover, the L.A. SUSMP does not require numeric sizing of all developments of 5,000 square feet or more; rather, it has a variety of sizes and types of development that are subject to numeric sizing requirements for stormwater runoff treatment BMPs. The State Board affirmed in the Bellflower decision that the types of requirements in the L.A. SUSMP represent the maximum extent practicable (MEP) for stormwater controls at new development and redevelopment projects in Los Angeles, with the supporting record for that permit adoption process. The State Board’s decision included a statement that municipal stormwater permit requirements for new development should be tailored to local conditions. The Tentative Order addresses the MEP standard with respect to the Santa Clara Basin. The phased approach in the T.O. is in some respects more comprehensive than the L.A. SUSMP. For instance, once acre (43,454 ft2) of impervious surface is the size standard for Group 1, compared with 100,000 ft2 for commercial projects in the L.A. SUSMP.13i Comment: Imposition of one trigger threshold, and then another, creates a moving target that will complicate compliance.Commenters include:  BFI 3  Santa Clara (City of) 3  Silicon Valley Manufacturers’ Group 3  Spectra-Physics 3  US DataPort 3Response: In response to this and related comments, the schedule for implementing requirements for Group 2 Projects has been extended.13j Comment: Incorporate the L.A. SUSMP size categories instead of the Group 1/Group 2 method contained in the Tentative Order [SCVURPPP 6]. Group 1/Group 2 categories largely represent movement in the wrong direction from the Los Angeles SUSMP’s definitions because they will require the municipalities to address too many insignificant projects from both a water quality and cost/benefit perspective [Morrison & Foerster 3]. Response: We believe the Group 1 and Group 2 Project categories address significant projects in a phased and consistent approach designed to assist municipalities in managing their resources and assuming this workload. While the L.A. SUSMP categories may be appropriate under the permit adoption process which occurred in the Los Angeles region, the stormwater runoff pollutant monitoring data for the South Bay indicate that urban runoff from all types of development contribute pollutants to creeks and the San Francisco Bay. Such data may be found in, among other30 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 sources, the Bay Area Storm Water Management Agencies Association, October 15, 1996 report, “San Francisco Bay Area Stormwater Runoff Monitoring Data Analysis, 1988-1995.” Oakland: Woodward-Clyde Consultants (now URS Corporation). This report summarizes results of storm water data collection and analysis work in the Bay Area, including work done in Alameda and Santa Clara counties, findings on stormwater toxicity, pollutant concentrations related to land use, and related information. In addition, Heaney, J.B., Pitt, R, and Field, R. Innovative Urban Wet- Weather Flow Management Systems, 1999. USEPA Doc. No. EPA/600/R-99/029. Chapter 4 summarizes research on pollutant loadings based on broad categories of land use (e.g., industrial, commercial, residential) and specific type of land uses (e.g., roadways, parking lots, roofs, loading docks, etc.), and finds pollutants in stormwater runoff from this broad array of urban impervious surfaces. Thus we find that all types and sizes of development that result in impermeable surfaces also result in increased negative impacts to receiving waters in the Santa Clara Basin and their beneficial uses, and we believe the phased Group 1 / Group 2 approach is appropriate to address these impacts.13k Comment: Group 2 may be comprised of ministerial projects that are not now reviewed [Sunnyvale 13].Response: In response to this and similar comments, the Alternate Size Proposal has been rewritten to allow Co-permittees to propose for Regional Board approval an alternative Group 2 definition. In addition, the implementation date for Group 2 projects has been extended.13l Comment: WaterKeepers objects to the exemption granted at C.3.c.i for development projects which reduce impervious surfaces by 20% of more. While we agree that dischargers should create incentives for developers to reduce impervious surfaces, providing them with an exemption from the new development standards is self-defeating. WaterKeepers proposed a mandatory reduction in impervious surfaces for all redevelopment, as has been adopted in Maryland (see our preliminary comments). However, we object to using such a reduction as an exemption from the Provision’s requirements. [WaterKeepers 12]Response: In response to this comment, the exemption has been removed from the Tentative Order.13m Comment: Project categories are too prescriptive [Morrison & Foerster 9].Response: We believe that the project categories are flexible, and not overly prescriptive. The categories are phased, to allow the Co-permittees time to develop their current new development program further. Additional flexibility has been added to the Group 2 size category, in that the Program can propose an alternate approach that is comparable in effectiveness.13n Comment: The following strike-out revisions were suggested. Commercial, industrial, or residential developments that create one acre (43,560 square feet) or more of impervious surface, including roof area, streets and sidewalks. This category includes any 31 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 development of any type on public or private land, which falls under the planning and building authority of the Dischargers, where one acre or more of additional continuous impervious surface, collectively over the entire project site, will be created.Significant redevelopment projects. This category is defined as the creation or addition or structural replacement or significant reconstruction of at least one acre (43,560 square feet) of continuous impervious surfaces on an already developed site, or significant redevelopment that encompasses one acre of impervious surface, including roof area. Significant redevelopment includes: the expansion of a building footprint and/or floor area, or addition to an existing structure; significant reconstruction of an existing structure; or replacement of a structure. Significant redevelopment also includes replacement of impervious surface that is not part of a routine maintenance activity. [Home Builders Association 5]Response: We disagree that the suggested changes are appropriate. The first proposed change would limit the definition Group 1 projects to an acre of continuous impervious surface. We believe the T.O. encourages design that reduces the continuity of pavement, or directly connected impervious area (DCIA), as stated in the response to 11d above. However, limiting the Group 1 Project definition as suggested would limit the implementation of new development treatment measures far below the MEP standard, without ensuring that disconnection of impervious surfaces is adequate to allow treat stormwater runoff and reduce changes in peak flow. The second proposed change may redefine the significant redevelopment category as new development, by limiting the definition to only addition or creation of impervious surface in redevelopment. The phrase "significant reconstruction" is retained in the comment, but we have not retained it in the current proposed T.O. We will continue to include "replacement" of impervious surface in the definition of significant redevelopment in order to address the pollutants present in urban stormwater runoff. The second suggested change also includes the limitation to continuous impervious surface. We disagree with this request because the federal regulations at 40 CFR 122.26(d)(s)(iv)(A)(2), which require “a description of planning procedures … to develop, implement and enforce controls to reduce the discharge of pollutants from Municipal Separate Storm Sewer Systems that receive discharges from areas of new development and significant redevelopment,” specifically describe "significant redevelopment" with new development as the activity to address through application of appropriate BMPs.13o Comment: Need a water quality nexus. Finding that controls could reduce storm water runoff and improve water quality can be insufficient to avoid a 5th Amendment takings claim; requirements are not targeted to correct a specific problem, but impose conditions on all development regardless of where it is located and whether it is associated with a CWA 303(d)-listed impaired water body; Water quality nexus is required because C.3 constitutes a form of exaction, with regard to the waiver provision [Morrison and Foerster 16, 17, 37].Response: Mr. Falk, of Morrison and Foerster, has suggested in previous comments to the Regional Board that the proposed permit requirements are unconstitutional because he believes they would “take” private property without compensation. In his current comments, he stops short of calling them unconstitutional—but then goes on to cite a number of cases that address the legal test 32 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 to determine whether there has been an unconstitutional “taking”. The cases Mr. Falk cites do not apply to the measures in the Tentative Order. They concern the constitutional standards that apply to a government agency’s requirement that a land owner dedicate property as a condition of approval of a land use permit. (See City of Monterey v. Del Monte Dunes at Monterey, LTD., (1998) 119 S. Ct. 1624, 1635.) Although the tentative order relates to a permit, the permit does not require that the Program dedicate property of any sort. Furthermore, it does not require that the Co-permitees require that developers dedicate any type of property. Despite the fact that the neither the Board nor the Co-permittees need to demonstrate a “nexus” under applicable case law, the record includes substantial information to support the relationship between the requirements of the proposed permit and the statutorily driven objective of avoiding water quality impacts due to new development and significant redevelopment projects.13p Comment: Exempt streets & roads [ACCWP 4].Response: Streets, roads, and highways are included due to their potential to be a significant contributor of pollutants in urban runoff. A Federal Highway Administration “Pollutant Loading and Impacts from Highway Stormwater Runoff, Volume 3; Analytical Investigation and Research Report” (1990) finds that concentrations of total suspended solids, nitrate + nitrite nitrogen, and zinc exceed USEPA benchmark values for concentrations of these pollutants in urban runoff. USGS Open File Report 98-409, “A Review of Semivolatile and Volatile Organic Compounds in Highway Runoff and Urban Stormwater” reviews data on concentrations and sources of VOCs and SVOCs in highway and urban runoff. “San Francisco Bay Area Stormwater Runoff Monitoring Data Analysis, 1988-1995,” BASMAA, in its review of land use-based data, found transportation land uses to contribute similar concentrations of pollutants as other land uses. Streets, roads, and highways also comprise extensive impervious surfaces, which alter flow regimes and increase potential for downstream erosion.13q Comment: If Group 2 projects are considered to have “lesser potential impacts,” why must they comply in 2003? What is the appropriate size project to implement these provisions? What studies have been done? [MacKay & Somps 9] The impact of these provisions to land use is presently unclear. It is requested that typical site design examples be provided for analysis [MacKay & Somps 11].Response: Stormwater monitoring data collected in South Bay and other studies (see references cited in the Staff Report for the July 2001 item and response to comment 1, above) indicate that broad categories of land use and development contribute pollutants to stormwater runoff. While from a water quality standpoint we would recommend applying the provisions of the T.O. to all new development, from a practical standpoint we believe the Group 1 and Group 2 Project categories address significant projects in a phased approach designed to assist municipalities manage their resources and workload. Impacts to land use and site design examples are available in published literature (Urban Runoff Quality Management, WEF Manual of Practice No. 23, ASCE Manual and Report on Engineering 33 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Practice No. 87. 1998. Start at the Source, Design Manual for Stormwater Quality Protection, Bay Area Stormwater Management Agencies Association. 1999.). Regional Board staff will present typical site design examples in an upcoming workshop.13r Comment: Unlike the Provision’s scheme for eventually capturing 80% of all new development, no such phased approach is contemplated for redevelopment, locking in the one acre threshold for the life of the permit. The LA SUSMP defines redevelopment as “the creation or addition of at least 5,000 square feet of impervious surfaces or the creation or addition of fifty percent or more of impervious surfaces or the making of improvements to fifty percent or more of the existing structure….” As proposed, the redevelopment provision is inconsistent with the LA SUSMP and State Board Order No. WQ 2000-11 which affirmed that policy as the standard for MEP [WaterKeepers 11].Response: The T.O. as revised states that the definition of significant redevelopment follow the phased Group 1 and Group 2 Project approach, so three years after adoption significant redevelopment projects would be lowered to the Group 2 size threshold of 5000 ft2, or be otherwise described as part of the alternate Group 2 definition, which is to be comparably effective, that the Program would propose. The current T.O. definition of significant redevelopment has been clarified, and though is in some ways more similar to that in the L.A. SUSMP, better definition was the goal. (See also response to 3a.)13s Comments:  The narrative description of “significant redevelopment projects” contained in provision C.3.c.i is too vague and convoluted to facilitate consistent interpretation by City staff and permit applicants. The square footage criteria should be tied to the creation or replacement of impervious surfaces. I see no justifiable relationship between the objective of restricting runoff from new development and the addition of new floor area that does not expand an existing building footprint or otherwise create additional impervious area. For example, the buildout of floor area within the interior of an existing building or the reconstruction of existing interior floor areas do not impact water quality. Absent adequate justification, this type of regulation lacks the legal nexus required for imposition upon an applicant for a development permit. I suggest that the definition of “significant redevelopment project” be simplified as follows: “the creation or replacement of a specified amount of impervious surfaces on an already developed site”. The applicable amount of impervious area should be specified separately in the definitions for Group 1 and Group 2 projects [Palo Alto 4, Morrison & Foerster 13, 18].  Redevelopment difficult to understand; minor home remodels will trigger [Monte Sereno 2].  The definition of “significant redevelopment” is unclear [SCVURPPP 7].  Description of redevelopment is confusing; please clarify and relate to creation of additional impervious area—a water quality-related factor [ACCWP 3].  The definition of “significant redevelopment” is being interpreted too broadly by Regional Board staff. We request that the provision be modified to include a definition similar to that in the L.A. SUSMP [SCVURPPP 8].34 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 The definition of “significant redevelopment” projects, which was changed in the week before the Tentative Order was issued is particularly problematic, especially to the extent that it seeks to address any projects that do not add any net impervious surface area beyond existing conditions [Morrison & Foerster 4].Response: In response to these comments, the definition of “significant redevelopment” has been clarified. The modified language includes only redevelopment that disturbs land, thus the remodel of interior floor areas is excluded from the definition of significant redevelopment. The proposed definition is not tied solely to creation of additional impervious area, because certain types of redevelopment (e.g., those that disturb impervious surfaces to create a new project) constitute an appropriate opportunity to apply stormwater treatment BMPs to reduce stormwater impacts from the developed site. Additionally, routine or maintenance level work, such as re-roofing and repaving are excluded, because the intent is application to truly a significant level of reconstruction on a previously developed site. We find that all types and sizes of development that result in impermeable surfaces also result in increased negative impacts to receiving waters in the Santa Clara Basin and to their beneficial uses. We believe that, over time, consistent application of stormwater treatment BMPs to significant redevelopment projects, as defined in the revised T.O., is the appropriate approach to address these impacts.14 Numeric Sizing Criteria Comments 14a Comment: The Numeric Sizing Criteria are unclear, need examples.Commenters include:  Home Builders Association 3  Milpitas 9Response: Numeric Sizing sample calculations are given in Attachment C to the July 10, 2001, Staff Report prepared for the Workshop on Tentative Order Amending the New and Redevelopment Performance Standard in Provision C 3 of the Santa Clara Valley Urban Runoff Pollution Prevention Program NPDES Permit. In addition, Regional Board staff will provide examples at an upcoming workshop for stakeholders.14b Comment: Provision C.3.d.i, the Volume Hydraulic Design Basis requirement, could be simplified if the Regional Board conducted the rainfall analysis and specified the volume to be captured, or allowed the individual programs to estimate volumes for their area based on local raingages that took into account climatic and topographic effects. Recommendation: Regional Board should conduct rainfall analysis using local raingages and specify 80th percentile volume as a third option, and allow local agencies to conduct a similar analysis on additional local raingages within their jurisdiction to take into account local climatic and orographic effects [Contra Costa Clean Water Program 12].Response: The approach specified in the T.O. allows local agencies to conduct an analysis using local rainfall data and to use that analysis to appropriately size treatment controls. The Co- permittees are allowed to implement the volume hydraulic design criteria in the manner that that is most efficient and straightforward at the local level, using local rainfall data.35 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200115 Hydrograph Modification Comments 15a Comment: The provision that peak storm water runoff rates may not be increased "where the increased peak storm water discharge rate will result in increased potential for downstream erosion or other adverse impacts on stream beneficial uses" is not sufficiently clear. While we appreciate Board staff’s efforts to clarify this provision, the proposed language remains insufficiently clear to facilitate compliance, delays compliance unnecessarily and is inconsistent with MEP efforts demonstrated by other muncipalities. WaterKeepers urges Staff to prohibit increases in peak stormwater runoff from new development or re-development from pre-construction levels. We note that other regulatory efforts have already made or are now considering such a prohibition [WaterKeepers 14].Response: Because there are common circumstances in which changes to runoff will not cause impacts, we have sought to appropriately condition this requirement, in the interim, pending the more thorough approach that is anticipated from the development of the HMMP.Staff believes the proposed language will result in mitigation of hydrograph modification impacts substantially improved as compared to implementing the language, presented in other municipalities, that controls peak flows only. This is because appropriate evaluation of and mitigation for hydrograph modification impacts is necessarily site- or catchment-specific. While a consensus exists that these impacts occur as the result of urbanization, including new and redevelopment projects, there is not consensus on a single solution that may be applied broadly to disparate catchments. Thus, the proposed language grants a reasonable amount of time for an evaluation framework to be prepared, for catchments to be evaluated, and mitigation standards to be developed and implemented from the literature and site-specific work.Other municipalities and regions have instituted a peak flow limitation. However, this limitation has generally been shown not to be fully effective at addressing impacts. This is because the standard method of limiting peak flows is detention. Detention has typically been implemented such that at the same time that it controls peaks flows, it increases the durations of erosive flows. For this reason, a provision that looks solely at peak flows is unlikely to fully mitigate expected impacts, and can even exacerbate them. An effective solution must consider projects’ impacts on the duration of erosive flows, as the present language does.15b Comment: In general, we believe this section provides minimal, if any, water quality benefit while greatly impacting land use and cost to new development. This section should be eliminated. [MacKay & Somps 15, 18]Response: Commenter’s statement does not reflect the consensus in the literature, and seen in Bay Area creeks, that flow alterations due to watershed changes including urbanization can significantly impact stream beneficial uses. The guidance provided in this section, including allowance for alternative designs such as in-advance downstream creek restoration to minimize on-site costs, is 36 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 intended to minimize costs and maximize flexibility while still ensuring potential impacts are appropriately addressed.15c Comment: The requirements to control both flow and duration suffer from serious technical flaws. Clarify definition of duration or remove requirement; clarify relation between peak rates & duration. Can't limit peak and duration; may not be feasible.Commenters include:  Consulting Engineers & Land Surveyors of CA 4  Homebuilders’ Association 3, 4  MacKay & Somps 16  Milpitas 12  Monte Sereno 4  Santa Clara County 4  SCVURPPP 5  Sunnyvale 12Response: In response to these and similar comments, the interim standard language in the revised T.O. has been clarified. It is not clear that limiting both peak flows and the duration of erosive flows strictly to predevelopment levels is necessary to address identified impacts in the Bay Area. For this reason, the T.O. language does not have such a strict requirement. Rather, the language allows significant flexibility, limiting changes to peaks and durations only where they will result in significant impacts to beneficial uses, and allowing for alternate solutions, such as downstream stream restoration in advance of projects to address changes in flows. This is to be accomplished through the HMMP, proposed by the Program. As noted above, the interim standard language in the revised T.O. has been clarified in this regard.15d Comment: Remove interim standard; it creates a "moving target;" interim standard is more stringent than final standard, which allows exemptions; puts cart before horse, interim projects may not be justified & may reduce the need for HMMP. The inclusion of an “Interim Standard” requiring immediate implementation of prescriptive regulatory action at the local government level in advance of allowing the municipalities to evaluate the impacts to be managed and define the ways in which those can effectively be addressed puts the cart well before the horse and, as detailed in the enclosed, can entail significant unintended consequences.Commenters include:  ACCWP 5  Applied Materials 3  BFI Waste Systems 3  Contra Costa Clean Water Program 13  Consulting Engineers & Land Surveyors of California 2  Milpitas 13  Monte Sereno 437 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 Morrison & Foerster 6  Santa Clara (City of) 3  Santa Clara County 7  SCVWD 9  Silicon Valley Manufacturers’ Group 3  Spectra-Physics 3  US Dataport 3Response: The interim standard in the T.O. has been revised, and retains the requirement that impacts be appropriately evaluated and addressed, while allowing significantly greater flexibility in how those impacts may be addressed. An interim standard is necessary to ensure that in the intervening time before a final standard is adopted, impacts from projects with a clear potential to impact waters are appropriately addressed. Such projects include, but are not limited to, new projects in the hills and projects in largely undeveloped watersheds.15e Comment: Need more time to study & understand volume and flow requirements [Home Builders Association 4]Response: We disagree that additional time is needed, beyond what the Tentative Order provides. The process as set out in the T.O. includes an interim standard that is stated very simply. The HMMP is developed over a two-year period. The provision provides approximately one year for study and evaluation of existing literature and an additional year for development and implementation of an HMMP framework and quantitative numerical standard(s). Thus, adequate time for study is built into the provision.15f Comments:  The program area is almost completely built out. It is doubtful that the small incremental increase in flows due to possible development could have any measurable effect on erosion of streams within the program area. In fact, retarding flows from a site can increase peak flows somewhere in a system designed to accommodate a particular development scenario. [MacKay & Somps 17]  The benefits of this provision are unclear: An incremental increase in creek flows will have minimal effect on overall creek bed erosion. Predicting erosion is a complicated matter and depends on soil types, vegetation, turbulence, etc. A primary factor contributing to creek bed erosion is the velocity of the water, and the load of materials in that water, which, in turn, depends significantly on the slope of the creek, not an increase in flow. All earthen creeks will naturally erode over time. The silts will eventually travel to the bay. This process is not caused by development, although development may accelerate it. However, development may also decrease overall sediment loads by stabilizing (terracing, landscaping, paving, etc.) upland areas that might otherwise erode (year in and year out due to farming or cattle operations for instance) into creeks. [MacKay & Somps 18]  Peak flow matching is required by the T.O. and some studies show it may aggravate erosion hazards. [Morrison & Foerster 34]38 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: The provision is written so that should a catchment be so urbanized that additional projects would not impact its creeks, then the requirement for management of hydrograph change may not apply. Commenter’s statement that hydrograph modification changes do not have the potential to impact creeks in Santa Clara County is not supported by the literature. Much of the area covered by the permit is developed. However, individual catchments remain that may still be significantly altered by development. These include small creeks in the hills and much larger creeks, such as Coyote Creek, where significant commercial/industrial and/or residential projects are proposed. The types of stream alterations include increased sediment transport; increases in the number of stream bankfull flow events; more frequent flooding; stream bed scouring and habitat degradation; stream channel widening and shoreline erosion, including threats to infrastructure; and aesthetic degradation. The potential does exist that detaining flows in one location can increase flood flows in another location. This concept is sometimes known as the detention problem. This is a catchment-specific issue which can be addressed, and which is appropriately addressed by the local flood control agency. Staff notes that the flood control agency in this case generally supports the proposed language. Urbanization can significantly impair beneficial uses by altering the natural cycle of sediment transport in a stream. For example, as the commenter describes, urbanization can reduce natural sediment inflows into a stream while increasing the energy of water flowing in the stream. This can result in stream bed incision, bank failure, loss of riparian vegetation, threats to built structures, flooding, and similar impacts. The proposed measure is intended to avoid or mitigate these impacts. Staff concurs with commenter’s statement that peak flow matching can aggravate erosion problems in a stream. It is for this reason that the provision addresses both peak flow increases and increases in the durations of erosive flows and includes the opportunity to complete downstream restoration activities, an approach that is expected to minimize hydrograph modification impacts to creeks. 15g The inclusion of requirements for limiting peak stormwater runoff discharge rates and durations is an aspect of the proposed provisions that is highly problematic, goes well beyond SUSUMP, and was significantly modified in a detrimental manner just prior to issuance of the Tentative Order [Morrison & Foerster 5]. Response: The interim hydrograph change limitation has been revised in the T.O. to be more general and flexible in the period before the Program proposes a more comprehensive hydrograph modification management plan (HMMP). See Comment/Response 15i and 3a. 15h Comment: Limit C.3.f. to potential for erosion & not impacts to other beneficial uses.Commenters include:  ACCWP 6  Santa Clara County 9  SCVURPPP 1339 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: Hydromodification is part of the existing environment, and the proposed TO is intended to address the impacts of hydromodification caused by development in the Santa Clara Valley. Impacts caused directly by hydromodification can go beyond erosion, and can include, but are not necessarily limited to, siltation and changes in groundwater levels that can impact riparian habitat and bed and bank stability (see, for example, Booth and Reinelt, “Consequences of Urbanization on Aquatic Systems—Measured Effects, Degradation Thresholds, and Corrective Strategies,” Watershed 1993 Conference Proceedings, pp. 545-550; Simmons and Reynolds, “Effects of Urbanization on Base Flow of Selected South-Shore Streams, Long Island, New York,” October 1982. Water Resources Bulletin 18(5), pp. 797-805; May et al., “Effects of Urbanization on Small Streams in the Puget Sound Lowland Ecoregion,” June 1997. Watershed Protection Techniques 2(4), pp. 483-494, and Ayers et al., Water Quality in the Long Island-New Jersey Coastal Drainages, New York and New Jersey, 1996-98, USGS Circular 1201.). We expect these impacts to be evaluated and discussed as a part of the literature review and more generally in the whole of the HMMP. Staff believes the bulk of the impacts to be addressed will fall into the related categories of erosion and siltation. However, limiting potential impacts to be considered in advance of the literature review increases the potential for failing to address significant hydromodification impacts, even if opportunities to address other impacts are straightforward. In summary, it is not appropriate at this time to limit the scope of impacts considered, because this can be done as a part of developing the HMMP.15i Comment: There are complex relationships between the peak runoff from a particular development site and the peak flow in a receiving stream, dependent on the size and shape of the stream’s tributary watershed and the location of the development site within that watershed. It will be extremely difficult to determine exactly how on-site detention at a specific location will impact the peak flow or the duration of erosive flows in a receiving stream. I believe that the requirement to simply limit peak runoff rates leaving a development site is a practical concept that will accomplish the majority of the Regional Board’s underlying objectives for stream protection. For these reasons, I strongly urge that provision C.3.f be revised to eliminate the need to control the duration of peak flows. [Palo Alto 8]Response: The complexity of mitigating flow changes caused by development in a particular catchment varies depending on the size of the catchment, project size, environmental characteristics of the catchment, and degree of previous urbanization. For some projects, such as hillside subdivisions in headwaters or near-headwaters streams, evaluation should be straightforward. For others, such as commercial/industrial projects in the bay plain, the analyses may be more involved, and may include use of existing established rainfall/runoff models, county flow models, and surveys of catchment conditions. Establishing purely a peak flow limitation would be simpler than the proposed approach, and the interim limitation has been changed to this language. However, experience with this approach in other areas, including Maryland, western Washington state, and Canada, suggests that it is not a comprehensive approach to the problem, and can even exacerbate the problems it is intended to solve. Consideration of duration of erosive flows, above a potential damage causing threshold, is necessary to appropriately address project impacts.40 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200115j Comment: Requiring every new project to independently mitigate flows to predevelopment levels is impractical, … have marginal benefit, and would at best only delay the inevitable. [MacKay & Somps 19]Response: The proposed language, including the revised interim language, does not require that each new project independently mitigate flows to predevelopment levels. Further, as discussed above, it does not necessarily require that flows be maintained at predevelopment levels. It is likely that there will be flexibility for projects, based on catchment conditions, and that the requirement will not apply to the many projects that will be proposed that are in substantially urbanized catchments where creeks have already been significantly hardened.As discussed above, the requirement is expected to create significant benefits by addressing an area of significant impacts that has long been recognized, but not addressed. Further, it should help avoid substantial future costs, for example in steep hillside areas, required to protect newly built improvements from creek erosion.15k Comment: If sediments are considered pollutants that should not be allowed in the bay, then the hydrograph modification provisions do not accomplish this goal. A regional approach to silt removal would be far more effective and reasonable. [MacKay & Somps 20]Response: Sediment transport will always occur in a natural stream system, and is not in and of itself a pollutant. Excessive erosion of stream bed and banks, leading to excessive loads of silt and sediment do impact beneficial uses, and are pollutants. Therefore, the T.O. is not intended to prevent sediment discharge, but to reduce the instances of excessive erosion of stream systems, and the concurrent generation of excessive silt and sediment. The hydrograph modification section may positively impact the discharge of pollutants to the Bay. However, its focus is the substantial impacts to streams that can result from urbanization of their catchments, including changes to the natural discharge and movement of sediment and other earthen materials in and into streams. Implementing a regional silt removal approach could exacerbate many of these impacts.15l Comment: While qualitative impacts might be able to be described, even these kinds of analysis are often times beyond the ability of a single development to undertake. For instance, releasing clean water to mitigate downstream siltation from a site can increase erosion due to the “hungry water” concept. Also, one portion of a downstream system may be experiencing erosion while another siltation. A situation where mitigating one problem may exacerbate the other. Given the developed state of the permit area, the benefit of the HMMP is questionable. However, if the HMMP can be shown to be a significant tool in reducing storm water pollution, it is suggested that the HMMP be prepared on a basin wide basis rather than be a burden of a specific project. [MacKay & Somps 22]41 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: Preparation of HMMPs on a catchment-specific basis could be an efficient way to address identified impacts and provide a framework for mitigation, following development and approval of the HMMP. Indeed, this type of work was completed by Alameda County for Tassajara Creek prior to urbanization of that Creek’s catchment. However, just as the final details of flood management (e.g., modelling of changes in peak flows, calculation of required detention, etc.) are completed on a project-specific basis for many projects, it could be desirable or necessary to work similarly to develop the final details of catchment-specific HMMPs. These are issues that would be worked out over the approximately 2 years allowed for development of the HMMP.15m Comment: Expand exemptions to developments discharging to flood control channels designed to accommodate runoff from fully developed watershed [Alameda Countywide Clean Water Program 7].Response: Comment noted. This is an issue that should be discussed during development of the HMMP. At present, while many creeks have been modified to accommodate flood flows, it is not clear that these designs addressed the impacts this section is intended to mitigate. Therefore, it is not appropriate at this time to include a specific blanket exemption for these creeks.15n Comment: The T.O. lacks the specificity needed to ensure new/redevelopment aren't unduly exempted from peak flow limits [SCVWD 3, 11].Response: Comment noted. This is an issue that should be discussed during development of the HMMP. At present, staff believes the language provides appropriate flexibility to ensure efficient and effective implementation of measures to mitigate identified impacts.15o Comment: It will be essential that the Hydrograph Modification Management Plan be developed in a collaborative and inclusive process through the Santa Clara Basin Watershed Management Initiative - a process that invites public participation and technical review. [CLEAN South Bay 3]Response: The HMMP is substantially a technical document, and thus technical review is a key aspect of its preparation. The Santa Clara Watershed Management Initiative (WMI) could be the forum where the HMMP is developed, or it could be a forum used for public review of the HMMP at appropriate stages of its development. Because of the potential variation in impacts and mitigation across the many catchments within the Co-permittees’ permit area, Regional Board staff does not believe it is appropriate to specify the WMI as the forum where the HMMP is to be developed.15p Comment: It is not clear how a project could provide or create an HMMP. Is there to be more than one? One for each creek? Reach? City? [MacKay & Somps 21]42 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: Comment noted. The details of HMMP development and implementation would be addressed during the coming 2-year process set aside for that purpose. In general, after the development and approval of the HMMP, catchment specific HMMPs could also be developed and implemented as described in this section’s language.15q Comment: HMMP would duplicate WMI & TMDL studies [Consulting Engineers & Land Surveyors of CA 3].Response: The HMMP may serve as a helpful tool to assist the TMDL and WMI studies. It is intended to address a broad category of identified impacts that goes beyond the catchment-specific and pollutant-specific TMDL process. It includes a crucial planning component that should help avoid creating impaired water bodies, thus reducing the need for TMDLs to address impaired water bodies. The HMMP may have components that parallel products that the WMI may eventually produce, but as part of an NPDES permit, has a clear permit-based implementation requirement, including a schedule that is more specific than the WMI process and objectives.15r Comments:  Put schedule and other issues in the HMMP after further study [Consulting Engineers & Land Surveyors of CA 5]  HMMP should be the "guiding document" for stormwater control, including waivers, etc. [SCVWD 13].  Do not impose the interim standard limitation on increase of peak stormwater runoff discharge rates, rather have the permit stakeholders group (including the Regional Board) agree on how to technically conduct a Hydrograph modification Management Plan on a regional basis and how to define and evaluate the regional impacts on the Santa Clara Basin. [SCVURPPP 11]  Regional Board should eliminate the Interim Standard and convene a group of experienced geomorphologists to properly address this issue as the current requirements are too vague and may actually make things worse. The geomorphologists should include a combination of practitioners and researchers. Also, it may be necessary to consider other options (e.g, in-stream energy dissipation) to help address this issue. The various stormwater programs have been funding researchers from SFEI and elsewhere to address the effects of urbanization and other land use changes on stream geomorphology, and it seems practical and prudent to leverage that research in support of this issue, rather than having each stormwater discharge program developing an HMMP. [Contra Costa Clean Water Program 13]Response: The HMMP includes a schedule allowing time for further study, including about a year for preparation of a literature review and beginning work, and an additional year for design and implementation of a final protocol and standard. Thus, appropriate time has been allowed in the existing language for the required further study. The interim standard has been revised and clarified, as discussed above (see Comment/Response 15d). Leveraging existing research will be an important aspect of HMMP development, and we would encourage this. Indeed, this is a primary goal of the literature review required as a part of the HMMP development process. In general, the HMMP language is intended to allow such collaborative work. Also, while the HMMP must include information as specified in the T.O., and 43 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 while the T.O. also suggests a framework for information it could include, it is not limited to including only that information. Thus, as the commenter suggests, it could be prepared more broadly as an overall guidance/regulatory document for both hydrograph modification management and implementation of other storm water controls.15s Comment: Specify that the HMMP address concentration of runoff flows from development sites. The T.O. doesn't address the concentration of runoff from development at points of discharge to creeks [SCVWD 3, 10].Response: We have addressed these potential impacts by adding guidance language in the HMMP development section to include point source discharge areas (e.g., storm drain outfalls) as an additional issue to address. ______15t Comment: Erosion cannot be directly regulated under the federal Clean Water Act. [Morrison & Foerster 33] Response: Excessive erosion impacts, which cause damage to stream geomorphic stability, and damage to aquatic habitat and other stream-related beneficial uses can be regulated under the federal Clean Water Act. Moreover, excessive sediment pollution, due to excessive erosion of a streams bed and banks, can be regulated as a pollutant. If the cause or source of this pollutant is a major change in the runoff characteristics of stormwater from new development, or significant redevelopment, it is appropriate and within the stormwater permitting regulatory scope that it be included in this T.O. NPDES permits must protect receiving water quality standards. Federal NPDES regulation 40 CFR 122.44(d)(1) requires municipal storm water permits to include any requirements necessary to “achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.” Finding 7 of the T.O. includes evidence that altered flow regimes resulting from new development and significant redevelopment can negatively impact water quality standards. As such, the Permit includes requirements for the management of flow in order to protect receiving water beneficial uses and water quality objectives, as it is required under the federal NPDES storm water regulations.16 Operation & Maintenance Comments 16a Comment: Provision 3.e (Operation and Maintenance) should be expanded. Clarify that the co- permittees, ultimately, are responsible for ensuring that all BMPs constructed pursuant to Provision C.3 are maintained properly; must keep a detailed list; and must maintain BMPs as often as necessary (rather than once/yr) [WaterKeepers 13].Response: In partial response to this comment, Provision C.3.e has been modified, requiring maintenance of a list of sites with treatment measures, and inspection of a sub-set of total sites on an annual basis, with appropriate follow-up when problems, or lack of maintenance is discovered.44 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200116b Comment: The requirements for private entity O&M are not enforceable in a meaningful way. Changes to CC&R's that affect a single parcel are typically beyond the legal control of a project applicant unless the project is a new subdivision. Similarly, requirements that attempt to impose deed restrictions on real property are very difficult to enforce, both legally and practically [Palo Alto 7]. It is unfair to require developers to be responsible to ensure that resales include educational material [Home Builders Association 6]. Response: In response to these comments, Provision C.3.e has been modified to allow Co- permittees to use a variety of methods to verify that O&M occurs. The requirement for developers to be responsible for educational materials has been deleted.16c Comment: The Operation & Maintenance provision is too prescriptive [Morrison & Foerster 9].Response: While Provision C.3.e has been modified to allow Co-permittees to use a variety of methods to verify that O&M occurs, we direct the commenter to our responses to Comments 2i and 13m, which address the legality of the Tentative Order and the fact that the T.O. is not too prescriptive.16d The Tentative Order does not take into account the ongoing maintenance issue and specifically the concern that many small on-site BMPs, which are intended to be maintained by private interests, may result in poor maintenance and actually make water quality worse [Contra Costa Clean Water Program 5]. If swales are included as treatment, requiring O&M would be a disincentive [Milpitas 11].Response: We concur that poor maintenance of treatment BMPs can result in negative impacts to water quality. Provision C.3.e allows Co-permittees to select the most appropriate method to ensure that O&M occurs, and Co-permittees may use different methods for different types of treatment BMPs. Swales are one type of treatment BMP, and thus require periodic maintenance. However, swales have the advantage of requiring relatively little O&M compared to other treatment BMPs.16e Comment: Control of land use is unconstitutional. Commenters are concerned about deed restrictions and cities’ authority to implement them.Commenters include:  Belmont 4  Milpitas 10  Palo Alto 7  Santa Clara County 12  Sunnyvale 11Response: The Tentative Order does not attempt to control the use of land, the rightful province of the Co-permittees. The purpose of the T.O. is to enhance existing performance standards that require new development to treat stormwater runoff to the maximum extent practicable. The 45 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 commenters’ concern about deed restrictions relates to the Operation & Maintenance (O&M) requirements of Provision C.3.e. In response to these and similar comments, Provision C.3.e has been modified to allow the Co-permittees a variety of methods by which to verify that O&M occurs.17 Exemption / Waiver Comments 17a Comment: The exemption provision is too restrictive. Under the proposed provision, many developers of smaller sites will be forced to install structural treatment devices (catch basin inserts, separator devices, etc.) due to a realistic shortage of available land for more preferable landscape treatments (vegetated swales, detention basins, etc.). It would be more beneficial for the Dischargers to collect a fee from these developers to be used for regional storm water quality enhancement projects rather than require the installation of “treatment boxes in the ground.” The Dischargers should be given the flexibility to use their discretion to collect a fee in lieu of requiring structural control devices in cases where the benefit of such devices is marginal. The Board could require the Dischargers to develop a strategic plan wherein they identify the proposed regional storm water quality enhancement projects and develop the criteria and a fee schedule for collecting developer fees. Progress on implementation of the regional projects could be reported in the Dischargers’ annual reports to the Regional Board. [Palo Alto 9]Response: In response to this and similar comments, the waiver provision has been modified to allow somewhat broader exemption options, particularly where “regional” stormwater treatment options are available. The Program is encouraged to prepare and implement, after Board approval, a locally tailored waiver mechanism, that must incorporate a suitable definition of the basis for impracticability.17b Comment: Available data for BMPs as provided in EPA’s Nationwide BMP database or Center for Watershed Protection BMP database indicate that if pre-development condition is open space (e.g., grasslands, trees), even with treatment, loads of a number of constituents will be higher than predevelopment condition. If pre-development condition is agriculture or grazing, then loads for some stormwater constituents (e.g., nutrients, TSS, pesticides) will be lower in the post development case. Recommendation: Since on-site treatment alone cannot achieve this goal, an option for offsite mitigation in areas that drain the same 303(d) listed waterbody, or regional solutions should be allowed. Could the requirement in Provision 3.C.b.ii be rephrased to “on-site and regional controls will be implemented to the MEP with the goal that post development loads will not exceed predevelopment loads?” [Contra Costa Clean Water Program 11]Response: A number of commenters request that an option for “regional solutions” be given in the T.O. In response to these comments, we have attempted to modify the exemptions provision (C.3.g) to allow an exemption option, the details of which Co-permittees could submit for Regional Board approval, in some cases where a regional stormwater treatment mechanism can be utilized. Regarding Provision 3.C.b.ii, this provision has been significantly modified since this comment was made, and the comment is no longer applicable.46 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200117c Comment: The T.O. does not contain a requirement that the waiver/exemption fee be proportional to the benefit conferred, which violates state Proposition 218 [Morrison & Foerster 15]. Use of the mitigation fee provision could violate state Proposition 218, which limits local governments’ authority to impose property-related assessments. [Morrison & Foerster 38]Response: The waiver provision (C.3.g) has been significantly modified since this comment was made, and partially in response to this comment. Provision C.3.g now allows the Dischargers to develop a waiver program, if they choose to, whereas previous language set forth a waiver process for Dischargers to implement. There is an interim waiver program set forth in the T.O. that would provide some flexibility, if the adoption and implementation of the Program's waiver is delayed. In all cases, the waiver would require that equivalent treatment occur at another location. In this way, the cost of exemption may be tied to benefit received. Because the Dischargers have experience in applying Proposition 218 requirements, they are in the best position to create a waiver program that will comply with Proposition 218 and any other applicable mandates. That being said, it does not appear that Proposition 218 applies to the waiver provision. Proposition 218 enacted Article XIII D of the California Constitution. Section 3 establishes special requirements for certain taxes assessments, fees and charges (hereafter “fees”). Those requirements only apply to fees that are assessed upon “any parcel of property” or upon “any person as an incident of property ownership”. The proposed waiver program does not make either type of assessment. The program would not impose fees on parcels of property. With respect to the second type of assessment, the California Supreme Court has held that that provision in Article XIII D “only restricts fees imposed directly on property owners in their capacity as such.” (Apartment Association of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal. 4th 830, 838.) The optional waiver program would not impose fees on upon property owners because of their status as property owners. Instead, it would apply to property developers who may not even be property owners. To the extent to that property owners may choose to participate in the program, they would not be subject to the fees because they own property but instead because they elect to develop the property in a manner that triggers the stormwater requirements and choose to pay the fee instead of complying with otherwise mandatory development standards. Thus, Proposition 218 would be inapplicable. Furthermore, as noted above, because the permit does not require any local government to implement the waiver program, a Discharger may elect not to implement such a program if it believes that there is any legal risk to having such a program.17d Comment: Suggests the following strikeout revisions: Exemption or Waiver Based on Impracticability and Compensatory Mitigation: A Discharger may, through adoption of an ordinance or code incorporating the treatment requirements of this Provision, or by other formal administrative means, provide for a waiver from the requirement for treatment BMPs if impracticability for a specific project can be established. A waiver of impracticability shall be granted only when all treatment BMPs have been considered and rejected as infeasible not practicable to the maximum extent. Grounds for impracticability may include: (i) extreme limitations of space for treatment on a redevelopment project, and/or lack of below surface options, (ii) unfavorable or unstable soil conditions to attempt infiltration, and (iii) risk of ground 47 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 water contamination because a known unconfined aquifer lies beneath the land surface or an existing or potential underground source of drinking water is less than ten (10) feet from the soil surface. Grounds (ii) and (iii) apply only to infiltration-based treatment measures, which are a subset of the range of treatment measure options, so do not in and of themselves establish impracticality.If a Discharger grants a waiver for impracticability, the Discharger must require the project proponent to transfer the savings in cost to a stormwater mitigation project to be used to promote regional or alternative solutions for stormwater pollution in the watershed of the development and operated by a public agency or a non-profit entity. The Discharger shall determine the amount of savings by any method that considers the costs of constructing and maintaining treatment BMPs in similar projects.. determine if mitigation in the form of in-lieu compensation may be established and collected from the project proponent. [Home Builders Association 7]Response: The first suggested change is to strike the term “infeasible”, and replace with "not practicable to the maximum extent". We prefer to use the term impracticable, as more straightforward. We have addressed this issue and the second suggested change by revising the T.O. to state that the Program may propose a waiver program for Regional Board approval; thus the Co-permittees may develop an equitable waiver system for implementation, and address any issue of relevance of in-lieu compensation. The basis set forth for the waiver is equivalent pollutant loading or quantity of runoff.17e Comment: Regional solutions are better than on-site solutions. Fewer and larger regional facilities where maintenance is the responsibility of public agencies with proven experience are likely to be more cost effective and result in improved overall water quality (see also comment #20).Commenters include:  BFI 7  Chamber of Commerce 7  Contra Costa Clean Water Program 6  Lockheed-Martin Space Systems 5  Sobrato Development Companies 7  Spectra-Physics 5  Tri-County Apartment Association 3  U.S. Dataport 5Response: In response to comments regarding regional solutions, and based on concerns about the impacts of projects in dense urban settings, the waiver provision (C.3.g) has been expanded to allow a “regional approach” to stormwater treatment. The Co-permittees must propose the details of their waiver provisions for approval by the Regional Board.48 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200117f Comments:  Expand the potential grounds for an exemption based on impracticability [SCVURPPP 14, Santa Clara County 10]  Include regional treatment and off-site mitigation [Contra Costa Clean Water Program 14].  Recognize that where soils have low hydraulic conductivity, on-site and regional solutions may be necessary [Contra Costa Clean Water Program 15].  For many years, municipalities have master planned utility systems and devised implementation plans for these systems that provide for efficient and logical service to the community. This is resulted in centralized sewage treatment facilities, water tanks and the like that serve large areas rather than having each project design an independent system. Why should a storm water quality system be any different? [MacKay & Somps 10]  Requiring treatment controls that are sized to meet the numeric sizing criteria on development sites may result in a lack of flexibility to consider regional solutions. [SCVURPPP 10]Response: In response to these and similar comments, the Tentative Order has been modified to provide Co-permittees the opportunity to craft a waiver provision, for approval by the Regional Board, that will allow regional solutions.17g Comment: The Tentative Order falls short of requiring tangible mitigation projects for exempted developments; be sure the money won't be used for studies or outreach, be sure space priorities (function & aesthetics) don't result in waivers [SCVWD 5, 12].Response: It is our intent that exempted development projects provide for stormwater runoff treatment control (not studies or outreach) at another tangible project(s), and we suggest language in the revised Tentative Order to make this more clear. We will continue to work with stakeholders to develop permit language that will carry out that intent. We concur with the comment that waivers should not be based on “space priorities,” but rather on impracticability.17h Comment: Submittals should need Executive Officer approval, not Board [ACCWP 10].Response: We understand the commenter’s concern about potential time delays associated with full Board hearings, but we cannot usurp the public process associated by law with permit actions. The types of submittals associated with the waiver provision (C.3.g) are significant permit actions that require Board approval.17i Comment: The waiver should give more information, as required by the Bellflower decision [WaterKeepers 19]. C.3.g, page 10: Please provide further guidance about the administration or management and oversight of the stormwater mitigation project fund. (Please see the State Board Bellflower et. al order, pages 26-27, for the kind of issues that need to be addressed) [CLEAN South Bay 4].49 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: The Bellflower decision specifies that before mandating funding, a waiver program must answer preliminary questions, including who will manage the fund, what types of projects it will be used for, what entities can legally operate such funds, and how permittees will determine the amount of the assessments. Because the T.O. has been modified and no longer mandates funding (rather, it allows Co-permittees to develop a waiver program, if they choose to), these questions have not been incorporated into the Tentative Order. The model waiver proposed by the Program would need to adequately address these criteria.17j Comment: Mitigation costs should be annualized—it appears to be a one-time cost in draft [Stormwater Mgmt 3].Response: Provision C.3.g does not specify the level of detail associated with this comment. We will look for appropriate implementation and management of the waiver provision through such mechanisms as third party audits and/or annual evaluation of Co-permittee programs. 17k Comment: Consider “credits” to provide incentives to developer. Most projects in Milpitas will need a waiver—mitigation may not be located in city limits, which would not be politically liked. Most redevelopment will occur in urban areas where it’s impossible to locate a regional mitigation project. [Milpitas 14]Response: In response to this and similar comments, the Tentative Order has been modified to provide Co-permittees the opportunity to craft a waiver provision, for approval by the Regional Board, which will allow Co-permittees to develop a waiver program tailored to their particular circumstances.17l Comment: The Board has not shown legal basis for the imposition of an exemption fee [Sunnyvale 10].Response: The Tentative Order does not impose a fee on projects that use the waiver provision, rather, it allows the Co-permittees to develop a program by which Co-permittees may allow a project to contribute towards stormwater treatment controls at another property under certain conditions. This concept was upheld by the Bellflower decision.18 Groundwater Protection Comments 18a Comment: There is a potential for groundwater contamination [Silicon Valley Manufacturing Group 7]. The Tentative Order doesn’t prevent ground water degradation [SCVWD 2, 7].Response: We understand the commenter’s concerns, but we believe the Tentative Order takes the necessary and appropriate steps to minimize the potential for groundwater contamination. Implementation of C.3.i (Limitations on Use of Infiltration Treatment Measures) will minimize the potential for groundwater contamination from stormwater infiltration. In addition, implementation 50 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 of Provision C.3.k (Source Control Measures) will help to prevent contaminants from reaching stormwater runoff. Further, each municipality has inspection procedures in place for industrial and some commercial facilities, and the inspectors look for situations where pollution prevention (or source control) measures should be improved. We believe that all of these measures, taken together, will minimize the potential for groundwater contamination.18b Comment: C.3.i.ii: Protection of groundwater quality in the Santa Clara Valley is of concern since groundwater provides such a significant part of our drinking water supply. Perhaps language incorporating the suggestions in the 1999 edition of Start at the Source discussion of infiltration and the risk of groundwater contamination could be included: “In some jurisdictions, the local groundwater management agency may require that detention basins, dry wells and similar structures be permitted at the time of construction. Always check with the groundwater agency and municipality for construction standards and permitting requirements.” [CLEAN South Bay 6]Response: We share the commenter’s concern about protection of groundwater quality. We have not included the suggested wording in the Tentative Order, because it does seem appropriate to require it, but we agree that the local agency and the groundwater management entity, such as the SCVWD, should scrutinize enhanced infiltration measures in some systematic way. We do not approve the use of dry wells, as we understand the use of the term.18c Comment: C.3.i.v: Please specify how the Discharger designation of “other high threat to water quality land uses and activities” will be reported [CLEAN South Bay 7].Response: This provision does not allow a project to waive stormwater treatment BMPs, rather it suggests when it is most appropriate to use non-infiltration BMPs. Any project that receives a waiver will be reported in each Co-permittees Annual Report.18d Comment: Can’t get good info on depth to groundwater [Milpitas 16]. Response: The Regional Board staff and other entities will assist the Co-permittees as requested to supply any available information regarding depth to groundwater. Such information is becoming more available through the Santa Clara Valley Water District and the United States Geologic Survey.18e Comment: Define ‘pretreatment.’ [Milpitas 17].Response: In response to this comment, the phrase “treated by means other than infiltration” has been proposed for addition to Provision C.3.i.v.18f51 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Comment: Clarify that infiltration shall not cause “degradation” rather than “exceedance;” Use percolation test rather than 10 ft separation for porous soils ; Include all infiltration devices, not just some, in this section [SCVWD 8].Response: The suggested clarification (exceedance) has been made to the revised Tentative Order. We do not agree that it is appropriate to require a percolation test in the Tentative Order; however, nothing in the T.O. prevents any Co-permittee from requiring percolation tests. The inclusion of infiltration devices was meant to provide examples of devices that allow infiltration; it was not meant to be an exhaustive list.19 General Plan, Environmental Review, and Source Control Comments 19a Comment: Although we agree that there are meaningful design, construction and source control standards that can be imposed on new construction, Provisions C.3.j and C.3.k do not give the Dischargers sufficient guidance to know exactly what is expected, either individually or as a group. For instance, Palo Alto either already does require or is in the process of amending our regulations to require certain of these "examples." But there are many differences in the ecology of the various Dischargers’ jurisdictions; and what makes sense for one does not necessarily make sense for another, both in quality and quantity. The Dischargers need to know that these provisions will give us the flexibility needed to make meaningful local land use decisions. A scenario in which the Dischargers are at the mercy of Regional Board staff to second guess or micromanage our local land use planning efforts is counterproductive and is an unwelcome intrusion into our local planning powers. [Palo Alto 10]Response: We disagree that C.3.j and C.3.k are insufficient or vague. We are aware that some Dischargers, including Palo Alto, routinely require design, construction, and source control measures at new development projects. Indeed, the existing municipal stormwater permit (Order 01-024) requires Dischargers to provide developers with information and guidance materials on site design guidelines and BMPs for stormwater pollution prevention, as appropriate for the project. Provisions C.3.j and C.3.k in the T.O. are intended to enhance the existing permit language by reiterating to Dischargers that site design and source control measures must be incorporated into the project approval process. It is precisely because there are differences in the ecology of the various Dischargers’ jurisdictions that Provisions C.3.j and C.3.k give examples rather than dictate exactly which design and source control measures must be required.19b Comment: We question the authority of the Regional Board to dictate the contents of a city's general plan by means of an NPDES permit. [Palo Alto 11, Morrison & Foerster 20]Response: The Tentative Order does not dictate the contents of the Co-permittees’ general plans. Provision C.3.l, which addresses general plans, is an enhancement of existing permit provisions that require Dischargers to have adequate legal authority to implement new development control measures as part of their development plan review and approval processes. Some Dischargers may find that their General Plans already incorporate water quality and watershed protection principles and policies. Where General Plans do not incorporate such principles, examples are given in the T.O. to illustrate the types of phrases or ideas that could be used to accomplish this goal. Co-52 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 permittees are not required to use these examples, rather they retain discretion to propose other General Plan amendments to meet the goal.19c Comment: The T.O. cannot dictate how or when local governments conduct environmental review. The CEQA statute provides that the California Office of Planning & Research is to prepare guidelines for the implementation of CEQA [Morrison & Foerster 21].Response: The Tentative Order does not dictate how or when local governments conduct environmental review. Instead, Provision C.3.m suggests example issues that local governments may address when they are conducting environmental reviews, in order to evaluate the water quality impacts of proposed projects. In addition, the CEQA Guidelines/code encourage responsible agencies to provide input to the CEQA process (e.g., CEQA Guidelines Sections 15096 and 15205). In addition, local municipalities have encouraged the Regional Board to be involved in projects at the CEQA stage in order to simplify compliance and reduce delays.19d Comment: WaterKeepers supports the Provision’s criteria amending local environmental review to include storm water discharge issues. We appreciate Board staff’s decision to include language in the permit amendment which requires co-permittees to evaluate storm water impacts in the process of reviewing development projects. This should already be required under CEQA but, in our experience, is often over- looked in practice. [WaterKeepers 15]Response: Comment noted.19e Comment: The Tentative Order shouldn't require space for mat cleaning in restaurants; this is covered under another rule [Santa Clara County 11].Response: This comment refers to the source control measures guidance of Provision C.3.k, which gives examples of conditions to be addressed. Provision C.3.k does not require space for mat cleaning in restaurants, rather it requires Dischargers to determine which source control requirements are appropriate for new and redevelopment projects to limit the potential for pollutants to be discharged in stormwater.19f Comment: Modify C.3.m.vi: add sentence stating control measures reduce 303(d) pollutants to MEP. [ACCWP 11]Response: Because the purpose of Provision C.3.m.vi is to ensure that the environmental review of development projects includes an evaluation of the project’s potential impacts on water quality, we do not agree that the suggested addition is needed. Such potential impacts should be evaluated whether or not a project incorporates stormwater control measures, and the municipal reviewer should decide whether stormwater controls satisfactorily reduce CWA Section 303(d) pollutants. 53 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200119g Comment: Alternate certification: It is more efficient for region or state to certify firms [Milpitas 15].Response: Provision C.3.h does not require municipalities to certify engineers and/or architects, rather it allows an engineer or architect to certify that a development plan meets the numeric sizing criteria for stormwater treatment BMPs. If the Discharger allows an engineer/architect who is not employed by the Discharger to make such a certification, the Discharger must then check that the engineer/architect has been adequately trained to make such a certification.19h Comments: WaterKeepers strongly objects to language at Provision C.3.h which appears to allow dischargers to exempt themselves from proving compliance with each of the necessary elements of the Provision. This exemption seems to imply that if a trained person makes the claim that a project has addressed all of the provisions of the permit a demonstration of such compliance is not necessary. Please explain how even a trained individual can assure compliance without “conducting a more detailed review to verify the adequacy of measures required to this Provision C.3.b-C.3.h.” Proposed Provision C.3.h. [WaterKeepers 17] Allowing the Co-permittees to rely on certification from a Civil Engineer, Licensed Architect or Landscape Architect for all of the requirements of Provisions from C.3.b through C.3.h, inclusive, seems overly broad. C.3.d seems appropriate for this certification process, but the others should be reconsidered. [CLEAN South Bay 5]Response: Provision C.3.h has been modified in response to these comments. Specifically, the language has been narrowed to allow a trained professional to certify only that post-construction stormwater treatment BMP(s) have been properly sized, which is Provision C.3.d.20 Schedule Comments 20a Comment: The requirements are being imposed before their effects on local creeks have been adequately studied. The benefits to water quality have not been analyzed, and more time is needed to study them. Cost-benefit analysis is needed.Commenters included:  Applied Materials 2  Barry Swenson Builders 2  BFI Waste Systems 2  City of Santa Clara 2, 4  Contra Costa Clean Water Program 4  Home Builders Association 3  Milpitas 2, 18  Morrison & Foerster 6  National Association of Industrial & Office Properties 3  Philips Semiconductors 254 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 Santa Clara County 3  SCVURPPP 4  Silicon Valley Manufacturing Group 2  Sobrato Development Companies 5  Spectra-Physics 2  Sunnyvale 6  US DataPort 2Response: This comment asks the question: Will the stormwater treatment controls required in the Tentative Order be effective in benefiting local water bodies? In addition, the commenters request more time to study this issue, and for cost-benefit analyses to be conducted. Staff has reviewed the information available to us and determined that the pollutants in stormwater runoff and the increases in runoff peak flows and duration associated with new development will cause impacts to creeks, streams and the Bay, all waters of the state. Furthermore, staff has determined that these urban runoff pollutant and flow impacts will be significantly reduced through the implementation of the actions in the proposed T.O. for permit amendment. Adequate data are available to illustrate that implementation of stormwater treatment controls, along with proper operation and maintenance, results in benefits to these receiving waters by reducing the pollutants in stormwater runoff. The impacts of pollutants in stormwater runoff from urban land uses are well documented and include data from the Santa Clara Basin. The basis for assertion of impacts due to flow increases are described in the responses to comments at 15 above and in the staff report for the July 2001 Board. The record contains justification that pollutants wash off of the roofs, road pavement, parking lots, and other paved portions of new development, pollutants that will adversely impact the receiving waters. This assertion is supported by a large body of studies and reports, including those cited in the Staff Report issued with the May 2001 Tentative Order, and:  Bay Area Storm Water Management Agencies Association, October 15, 1996. “San Francisco Bay Area Stormwater Runoff Monitoring Data Analysis, 1988-1995.” Oakland: Woodward- Clyde Consultants (now URS Corporation). Summarizes results of storm water data collection and analysis work in the Bay Area, including work done in Alameda and Santa Clara counties, findings on storm water toxicity, pollutant concentrations related to land use, and related information.  Heaney, J.B., Pitt, R, and Field, R. Innovative Urban Wet-Weather Flow Management Systems, 1999. USEPA Doc. No. EPA/600/R-99/029. Chapter 4 summarizes research on pollutant loadings based on broad category of land use (e.g., industrial, commercial, residential) and specific type of land uses (e.g., roadways, parking lots, roofs, loading docks, etc.).  Tiefenthaler, L.L., Schiff, K.C., and Bay, S.M. “Characteristics of parking lot runoff produced by simulated rainfall,” July 2001. Westminster: Southern California Coastal Water Research Project, discusses results measuring toxicity of parking lot runoff based on parking lot use, maintenance (street sweeping), and duration and intensity of rainfall.  Ebbert et al., Water Quality in the Puget Sound Basin, Washington and British Columbia, 1996-98, USGS Circular 1216, and Ayers et al., Water Quality in the Long Island-New Jersey Coastal Drainages, New Jersey and New York, 1996-98, USGS Circular 1201, summarize major findings about water quality based on broad land use categories. and,and,  The National Urban Runoff Program (NURP) Study (USEPA 1983). 55 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001In addition, the stormwater treatment controls proposed for new and redevelopment have been demonstrated to remove pollutants, when properly operated and maintained. References on this issue include those cited in the Staff Report issued with the May 2001 Tentative Order, and:  USEPA, Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters, 1993. Section 4 summarizes research on a wide variety of treatment controls.  Schueler, Thomas, A Current Assessment of Urban Best Management Practices: Techniques for reducing non-point source pollution in the coastal zone, 1992. Washington, D.C.: Metropolitan Washington Council of Governments.  Lichten, K.H. Adapting Engineered Vegetated Swales to the San Francisco Bay Area’s Mediterranean Climate: Law, Design, and Pollutant Removal Effectiveness, Master’s Thesis, 1997. UC Berkelely, summarizes research on pollutant removal seen in vegetated swales.  Many individual articles summarize particular work, including positive aspects and shortcomings of individual treatment controls. These include work completed by the local urban runoff programs as well as projects completed nationally. Therefore, the record provides justification that widespread implementation of treatment measures in new development and redevelopment will reduce pollutants in stormwater runoff, pollutants that are known to cause or contribute to exceedance of water quality standards and impacts to beneficial uses in water bodies in the Santa Clara Basin and throughout the San Francisco Bay Area. Regional Board staff believes that sufficient time is provided in the T.O. to accomplish the needed implementation, and that further time before implementation of the enhanced new development treatment measures is not currently justified. Regarding the comment that cost-benefit analysis is needed: The implementation of federal law does not require a separate cost-benefit analysis. Instead the standard is reasonable costs, or costs not out of proportion to environmental benefit, from the MEP standard. Relative cost comparisons and BMP cost calculations performed indicate that the costs of stormwater treatment BMPs at new and redevelopment sites are expected to be reasonable for the water quality benefits they will bring, in the range of 1-2% of total project costs.33 References and case studies, including that presented by Mr. Beamon at the July 2001 workshop, have suggested that storm water treatment controls can be constructed at a reasonable cost, and can even save money while resulting in more desirable, faster-selling projects as compared to standard projects. References include:  Bridging the Gap: Developers Can See Green; Economic Benefits of Sustainable Site Design and Low-Impact Development, Ron Tyne. Land Development: Magazine of the National Association of Home Builders, Spring/Summer 2000, pp. 27-31.  Better Site Design: Changing Development Rules to Protect the Environment, Thomas R. Schueler and Richard A. Claytor, Jr. Land Development, Spring/Summer 1999, pp. 16-18.  Low-Impact Development: A Builder-Friendly Approach to Stormwater Management, Neil Weinstein. Land Development, Winter 2000, pp. 22-25.  Costs of Urban Nonpoint Source Pollution Control Measures, 1991. Waukesha: Southeastern Wisconsin Regional Planning Commission. 109 pp.  Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters, 1993. Washington, D.C.: USEPA. pp. 4-12 – 4-62.  Economic Benefits of Runoff Controls, 1995. Washington, D.C.: USEPA. Doc. No. EPA 841-S-95-002. 16 pp.56 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 200120b Comment: The schedule for implementing Tentative Order requirements is unreasonable and not in logical order. Municipalities need more time to implement. The schedule shows a lack of understanding of municipal processes. The Tentative Order regulates new/redevelopment in advance of on-going planning measures. All specific implementation measures (e.g., zoning, subdivision regulations, building permits, etc.) directly obtain their authority from the General Plan. The implementation schedule requires development and implementation of implementation measures prior to revision of General Plans. General Plan amendments are discretionary and subject to a CEQA analysis, which can be a lengthy process containing many uncertainties beyond the control of local agencies.Commenters include:  Applied Materials 4  BFI Waste Systems 6  Consulting Engineers & Land Surveyors of California 5  Contra Costa Clean Water Program 3  Lockheed Martin Space Systems 4  Morrison & Foerster 24, 25, 26  Mountain View 3  NAIOP 1  Palo Alto 12  San Jose 6, 10  Santa Clara (City of) 5  Santa Clara County 2  SCVURPPP 2  Silicon Valley Manufacturing Group 5  Spectra-Physics 5  Sunnyvale 8  US DataPort 5Response: The proposed implementation schedule is based on two factors: First -- our understanding of the actual implementation of similar provisions by the municipalities included in the Los Angeles municipal stormwater permit. While we realize that each jurisdiction’s General Plan is different, and that each jurisdiction will be affected in a different way by the new requirements, we found that Southern California permittees were able to make any necessary ordinance modifications within six months and implement requirements one month later. This finding is supported by survey results provided with stakeholder comments that show the City of LA, LA County, San Diego County and the City of San Diego did not require extra time to fulfill requirements (Letter from Donald P. Freitas, Program Manager, Contra Costa Clean Water Program, to Loretta Barsamian, Executive Officer; Appendix A: Survey of Southern California Stormwater Programs, June 18, 2001). Second -- the Co-permittees’ own certification starting in 1996 that (a) they had adequate legal authority to implement new development control measures as part of their development plan review and approval procedures and (b) they were already requiring certain developers to mitigate impacts through proper site planning and design techniques and/or addition of permanent storm water 57 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 quality control measures and to provide for operation & maintenance of permanent stormwater controls. During the continuing stakeholder involvement process, we will welcome the submittal of specific General Plan text that will require revision, or other supporting information, so that we can evaluate how the Co-permittees’ General Plans differ from those of Southern California municipalities and determine what changes are needed in the implementation schedule. In response to comments regarding the difficulty in meeting the proposed schedule, we have suggested longer implementation timeframes for several provisions in the revised Tentative Order.20c Comment: The proposed Provision 3 C allows too much time for implementing core provisions. The San Diego MS4 permit requires full implementation of its SUSMP provisions within 18 months of the permit approval (one year for development and six months from Board approval to implement). By contrast, the proposed Provision 3 C gives the dischargers two years just to determine the size threshold for which development projects must comply with the new development provisions! The dischargers are given two full years to develop and adopt a hydrograph modification plan and four years revise general plans as necessary to incorporate water quality issues into land use planning. The dischargers are not even required to start reporting information about new development and BMP deployment until September, 2002, even though dischargers were required to address new development in the previous permit. With several SUSMPs already adopted, these provisions should require less time to develop and implement, not more. These delays are compounded by the fact that Board staff has already been negotiating the terms of this Provision with the dischargers for nearly eight months, during which time many of the outstanding facts, criteria and plans could and should have been developed. As a result of Board staff’s unending patience, years of intense development activity will go by without capturing pollution prevention opportunities – all for the purpose of recreating policies that have already been reviewed, subjected to stakeholder processes and affirmed by other Boards [WaterKeepers 6].Response: We believe the schedule in Provision C.3.o achieves a balance between the need for prompt action and the Co-permittees’ needs to “gear up” to a new level in managing stormwater runoff from new development and redevelopment projects. A core provision of the Tentative Order, that new development and redevelopment projects implement stormwater treatment BMPs that are properly sized to treat stormwater runoff to the maximum extent practicable, must be implemented one year after the T.O. is approved by the Regional Board. Co-permittees are given more time to develop locale-specific items, such as the Hydrograph Modification Management Plan; however, this time appears warranted based on municipal staffing levels, training needs, and the types of analyses needed. 20d Comment: The proposed Provision 3 is unclear when the proposed numeric sizing criteria must be fully implemented . We can find no language in the amendment that states when the co-permittees must fully implement this provision for Group 1 and Group 2 dischargers. Provision 3.o sets forth the schedule for implementing each provision of the amendment, yet doesn’t provide compliance dates for Provision 3.d. [WaterKeepers 7].58 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Response: We agree that the sentence specifying that stormwater treatment BMPs must be required and must be properly sized was not readily recognized. In the revised Tentative Order we have modified Provision C.3.c to clearly state that stormwater treatment BMPs must be required for applicable projects, and Provision C.3.d to clearly state that stormwater treatment BMPs must be properly sized by application of the numeric sizing criteria.20e Comment: Need time to the study impacts on local water bodies. Commenters include:  Barry Swenson Builders 2  Chamber of Commerce 5  National Association of Industrial & Office Properties 3  Phillips Semiconductors 2  Santa Clara County 3  SCVURPPP 4  Sobrato Development Companies 8  Spectra-Physics 8  Tri-County Apartment Association 4  US DataPort 8Response: See response to Comment 20b above. Regarding requests for additional time to study the impacts of development on local creeks and rivers, the large body of studies, literature, and data quoted in the Staff Report and the response to Comment 20b provide adequate evidence that development has detrimental impacts on beneficial uses and water quality. Regional Board staff believes that allowing more time for study would be a poor allocation of funds and staff time. However, two years are included for the HMMP development.20f Comment: Thank you for changing the permit expiration date to June. You may wish to adjust the date to the mid-June RWQCB meeting date. Additionally, it has never been clear why the reapplication is due a year ahead of permit expiration. If that early an application date is really needed, please make allowance for submittal of the September 15, 2005, annual report as a supplement to the reapplication (or consider making the reapplication date also September 15, 2005) [CLEAN South Bay 8].Response: The permit expiration date was changed in the T.O. based on verbal comments received from CLEAN South Bay that we believed were supported by Dischargers. However, legal counsel for the Dischargers states in a letter dated May 25, 2001, that “…members of SCVURPPP never agreed to extend the expiration date of their NPDES permit….” Thus, we will remove Provision C.14 from the revised T.O.21 Items Not Found in the Tentative Order 21a59 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001Comment: The Provision should require more stringent enforcement of the General Permit for Construction Activities. In the face of widespread compliance problems, however, the proposed permit amendment does little more than re-state the existing requirement that dischargers implement the Construction Inspection Performance Standards set forth in the Management Plan (proposed Provision C.3 at 3). Please explain why Board staff have not proposed expanding the relevant permit language to provide better assurance that the co-permittees are in fact complying [WaterKeepers 16].Response: The T.O. contains only Provision C.3, which is part of a larger municipal stormwater permit (Order 01-024); other parts of Order 01-024 address construction activities.21b Comment: The provision lacks legally required monitoring provisions. As we argued in our comments on the underlying permit, and in appealing that permit, the permit amendment must include monitoring provisions to assure compliance with the permit. Please explain why no monitoring provisions have been included how Regional Board staff intend to enforce the Provision [WaterKeepers 18].Response: The T.O. contains only Provision C.3, which is part of a larger municipal stormwater permit (Order 01-024); other parts of Order 01-024 address monitoring. 21c Comment: New sources of pesticide discharges must not exceed water quality standards: Most of the major tributaries in the south Bay are impaired by diazinon and possibly other pesticides. Yet the BMPS that are likely to be used to satisfy the requirements of the amended permit (detention ponds, swales, filters, etc) are unlikely to significantly reduce pesticide discharges because these strategies typically rely upon the capture of suspended particles. Pesticides in storm water are typically dissolved. We specifically request Staff to include a provision which would require a prohibition on the use of impairing pesticides by owners and future owners of new developments. Such a prohibition could easily be achieved through an amendment of the deed or through a covenant that transfers with the property. Furthermore, even if Board staff maintain, incorrectly, that new sources may exceed water quality standards for pesticides, a prohibition of impairing pesticides must still be required in the permit because it is compatible with the concept of MEP. Other public and private agencies have already demonstrated that use of organophosphate pesticides can practicably be eliminated [WaterKeepers 5].Response: The T.O. is one part of the whole municipal stormwater permit (Order 01-024); other provisions within the permit require the Dischargers to develop and implement Pesticide Management Plans and, more specifically, to take measures to control pesticide discharges from new development. The Regional Board does not have authority to regulate private use of pesticides, and the California Department of Pesticide Regulation has successfully intervened and stopped past attempts by municipalities to regulate use of pesticides by private parties on the grounds that municipalities lack authority. However, we agree with WaterKeepers’ implied goal of keeping organophosphate pesticides out of waterbodies. Regional Board staff is working through the Total Maximum Daily Limit (TMDL) process to identify sources of diazinon discharge, allocate waste 60 San Francisco Bay Regional Water Quality Control Board Response to Comments May-June, 2001 loads to the sources, and develop an implementation plan to limit discharges (among other TMDL process steps). 61

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