AgdaPkt 2009-11-09 - Laserfiche WebLink

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7 Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Regional Water Board stair s responses to many of the comments submitted were either dismissive, non-existent, based on a mischaracterization of evidence before the Regional Water Board, inaccurate and misleading, or non-responsive to the issue presented. None satisfies the requirement for a reasonable response. 40 C.F.R. S 124.17. B. The Final MRP Is Legally Defective. The Final MRP fails to satisfy the requirements of federal and state law governing the issuance of an NPDES permit. Two of the new provisions included in the final MRP - the LID and trash provisions - are highlighted below. While the defects discussed here may also affect other permit provisions, these two were the focus of much of the testimony presented at the October 14, 2009 hearing, and are used here as illustrations.12 1. The Regional Water Board's imposition of LID measures and new requirements for trash capture are not supported by legally sumcient rmdings and cannot be supported on the record before it. The federal Clean Water Act requires stonn water discharges to be controlled to the "maximum extent practicable." 33 V.S.C. S 1342(p)(3)(B)(iii). This term is not defined in the federal statute or its implementing regulation, but has been interpreted by the U.S. Environmental Protection Agency and courts to require imposition of best management practices, or "BMPs." Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166-67 (9th Cir. 1999). Neither the Final Tentative Order, nor the Final Order as approved by the Regional Water Board, contains any additional fmdings supporting its conclusion that the new LID measures required under the Final MRP represent the "maximum extent practicable." Indeed, the evidence before the Regional Water Board was to the contrary. As the Regional Water Board staff admitted, the permittees uniformly testified that the new requirements would be difficult and expensive to implement, and may well be out of reach. (See e.g., Tr. at pp. 53-54,58, 83, 121-122, 125.) As one 12 Comments in the record submitted by and on behalf of Bay Area municipalities raise the issues to which this section of the Petition is addressed with respect to many other requirements of the MRP, including, but not limited to: Provisions C.3 (e.g., C.3.g, C.3.i), C.8 (e.g., C.8.d.iii, C.8.f), C.ge, C.11 (e.g., C.Il.e, C.1l.f, C.11.h, C.11.i, C.11.j), C.12 (e.g., C.12.e, C.12.f, X.12.h, C.12.i), C.13 (e.g., C.13.e), and C.14. Should this Petition be removed from abeyance, Petitioner reserves the right to elaborate on these and the illustrations above. sf-27480S3 14 PE'flnON FOR REVIEW