On February 5, 2013, the SWRCB adopted a new storm water permit regulating small entities that own or operate their own storm drain system.  The Waste Discharge Requirements for Storm Water Discharges from Small Municipal Separate Storm Sewer Systems (MGP) regulates traditional municipal systems, and “non-traditional” entities like prisons, fairgrounds, ports, university campuses, parks and hospitals.  The new MGP is only the second generation “Phase II” permit in California regulating MS4s serving a population of under 100,000.  The first was adopted in 2003.  Larger MS4s have been subject to regulation under “Phase I” since 1992.


Over 200 entities will be subject to this permit for the first time, which will double the total permittee count.  Two thirds of these new permittees are non-traditional MS4s.  While many non-traditional MS4s were dropped from the old MGP designation list (mostly school districts who were never directed to apply for coverage), the proportion of non-traditional permittees will increase from 8% to nearly 40% of all MGP permittees.


The new MGP differs from the existing MGP in a number of ways, most notably for its far more prescriptive nature and detail.  Under the old MGP, permittees were required to describe their program in a “Storm Water Management Plan” (SWMP) in accordance with directives that filled barely five pages of the permit.  Now, the baseline substantive requirements extend to nearly 60 pages for traditional MS4s and over 30 pages for non-traditional MS4s.  In addition to the standard six minimum control measures, there are explicit requirements for program management, program effectiveness and improvement, and monitoring.  The particular monitoring requirements depend on whether discharge is to an Area of Special Biological Significance, waters with a TMDL, or 303(d) listed waters.  Finally, with the details in the permit itself, the SWMP is no longer the program centerpiece and its requirement has been eliminated.  Program management will be described in a less formal “guidance document,” a template for which agency staff have promised in the upcoming months.


The amount of detail in the MGP is daunting.  A few examples: public education programs must include specific messages to specific audiences; construction contract language must be revised to expressly require compliance with the Construction General Permit; catch basins must be prioritized for cleaning based on five specified criteria; a “database or equivalent tabular format” with eight specified categories of information shall be used to record maintenance of treatment facilities.  Clearly, carefully maintained record keeping systems will be necessary.


For permittees, a more detailed, prescriptive permit provides greater certainty of what exactly is required, albeit with a loss of flexibility to tailor a program to local considerations.  This could be a challenge to non-traditional entities with unique situations not contemplated by permit writers.  For Regional Boards, the more prescriptive approach eases some of the administrative burden of permit enrollment.  The agency will no longer review and approve individual SWMPs, as it did under the old MGP following the 2003 Ninth Circuit decision in EDC v. EPA, (2003) 344 F.3d 832.  By July 1, 2013, all regulated MS4s must submit a Notice of Intent (NOI), fee, guidance document and map, and permit coverage will commence immediately.  There will be no further enrollment delays such as occurred for the many non-traditional MS4s who were never directed to apply, or whose applications never received agency approval.


Looking to the future, Post Construction requirements include both Low Impact Development (LID) design standards and hydromodification measures.  As Regional Water Boards establish Watershed Management Zones, local watershed-based criteria for runoff retention and hydromodification will be applicable, either upon Regional Board direction, or in the next permit.


The MGP brings to a close a lengthy process in which State Water Board staff conferred with stakeholders on numerous occasions over several years as it drafted, redrafted and revised the permit.  During the adoption hearing, many speakers from both the environmental and regulated communities expressed their appreciation.  Prospective permittees left the hearing, however, with gnawing concerns about the standard Receiving Water Limitation language, which places permittees in immediate violation of the permit upon exceedance of a water quality standard.  As became clear following the Ninth Circuit Court of Appeal’s decision in NRDC v. County of Los Angeles, (2011) 673 F.3d 880,1  the iterative process required by California storm water permits provides permittees no opportunity to address an exceedance before facing enforcement.  In this respect, California permits stand apart from permits of other states.  The State Water Board assured permittees it would be considering the issue. 2

 

[1] The U.S. Supreme Court reversed the Ninth Circuit on other grounds and remanded the case January 8, 2013.  L.A. Flood Control Dist. v. NRDC, (2013) 568 U.S. ___.

[2] Watch for further State Water Board action on this issue.  See my article, “State Water Board Considering Revision of Receiving Water Limitations in Municipal Storm Water Permits”  Nov. 2012.