State Water Resources Control Board Hearing June 4, 2008 Presented by Mary Lynn Coffee

1. Comments of The City of Irvine On The March 2008 Draft General Construction Permit State Water Resources Control Board Hearing June 4, 2008 Presented by Mary Lynn Coffee Nossaman Guthner Knox & Elliott LLP www.nossaman.com

2. The City of Irvine Adopts and Supports: • Comments submitted today by the California Building Industry Association, the Construction Industry Coalition for Water Quality and other regulated stakeholders • Comments submitted today by California Stormwater Quality Association (CASQA) • The City of Irvine has coordinated closely with both groups in preparing these comments 2

3. Major Concerns Regarding the Draft General Permit • New Opportunity to Challenge Local Agency Environmental and Land Use Approvals • Completely Open-Ended Ability to Challenge Projects Approved by Local Agencies • Public Comment and Challenge Period: from PRD filing through build out • Response to challenge can include: • Stop project to require hearings • Re-assessment of Risk • Stop Project to Require Individual Permits • Rescission of Permit • Retroactive Assessment of liability and fines • “Late Hits” Maximize Uncertainty for Approvals and Permits issued by Local Agencies 3

4. Typical Land Use Approval Time Line and Ability to Challenge Development Agt General Plan Specific Plan Zoning Use Permits Tentative Tract/Parcel Maps Backbone Infrastructure Plans Site Plans Improvement Plans NOI/ NOT CEQA Cert. of Occupancy Final Tract/ Parcel Maps Building Permits Responsible Agency Permits Grading and Infrastructure Permits 4

5. Major Concerns -- Opportunity to Challenge • Issues for Local Agencies and Land Use Authority: • No Limitation On Time Period For Challenge • No Requirement that Challenges Must Be Related to Construction Site Water Quality Control: • Site planning and design—well after CEQA and planning phase • Hydromod control measures • Other? • Regional Boards May Stop Projects at Any Time • Local Agency’s Have No Post-Vesting Authority to Require Project Changes • Compliance Trap/ Retroactive Enforcement Liability • Construction operators • Municipalities issuing those operators grading permits based on receipt of NOI and WDID? 5

6. Major Concerns -- Opportunity to Challenge • No Recent Case Law Requires The Public Participation Requirements As Currently Specified • Alternative Public Participation Requirements That Relieve Unnecessary Local Agency Burden and Respect Land Use Approvals • Specify very limited time period after PRD acceptance for public comment (30 days) • Public review, if allowed, should be limited solely to Construction Phase Water Quality Control Issues • Expressly exclude site design, planning challenges • Rely on current enforcement options under law 6

7. Major Concerns Regarding the Draft General Permit 2. Risk Assessment Approach • Support A Risk-Based Approach • Risk Assessment is Skewed Toward Determination of High Risk • Almost all sites within the City of Irvine Would Qualify for Risk Category 3 or 4: • Broad definition of discharge “to” 303(d) listed waters (despite significant co-mingling of flows prior to reaching such a waterbody) • Predominate soils types and precipitation characteristics • Baseline score of 10, which prevents finding minimum risk level 1 • Adjust the Risk Assessment - Bell-Shaped Curve • Recalibrate sediment and receiving water risk • Appropriately define discharge to sensitive and 303(d) listed waters to preclude discharges that are commingled with other flows • Appropriately and specifically define sensitive receiving water 7

8. Major Concerns –Risk Assessment • Risk Assessment Provides Too Little Incentive for Proactive BMPs • Only incentives are for ATS and seasonal grading ban • For ATS, only incentive if all discharges are captured and treated regardless of event size, which isn’t practicable • Provide real incentives—allow risk reductions for: • Effective traditional BMPs and BMP combinations • Reasonable use of ATS (2 year design event as suggested in Monitoring Program) 8

9. Major Concerns –RiskAssessment • Local Agency “Partnering” in Enforcement or MS4 Mandates to Enforce Risk Assessment Requirements Risk Assessment is Complicated and Not Amenable to Supervision • Complex formula not exactly suited for purpose • Large number of different variables • Large number of potentially appropriate values for each variable (site specific values, constants, areal ratios) • No permit provisions providing guidance regarding recalculation of risk assessments through period of construction as conditions change 9

10. Major Concerns Regarding the Draft General Permit • Exclusions from Permit Coverage • No General Permit Coverage For Risk Category 4 Sites • Vast majority of sites in the City of Irvine are Category 3 or 4 Sites—4 not covered • If Assumed Normal (Bell Shaped Curve) Risk Distribution Over 2,600 Individual Permits would have to be Processed Upon Adoption of Draft Permit—Within 100 Days • No Assessment of Impacts of Individual Permitting Requirements on Regional Boards • No Guidelines to Regional Board Regarding Creation of Individual Construction Permitting Programs • Backlog and Delays are Inevitable 10

11. Major Concerns—Exclusions from Permit • No Coverage For Discharges to Waters Of the State • Discharges To Waters State Excluded From Coverage • Exclusion Affects Completely Undefined, But Potentially Large Group Of Construction Sites • New Limitation, But No Rationale • Questions/Substantial Complexity To Determine If Coverage Is Permissible • Rapanos/SWANCC Analysis? • Compliance Trap • No Assessment of Number of New IPs Required or Impacts on Regional Boards 11

12. Dr. Wolf’s Question Q:The permit attempts to balance the need for simplicity and transparency with the need to sensitively address widely different physical conditions across sites. In what parts of the draft permit do you think complexity is most and least valuable? A: Complexity is critical in analysis and data that serves as basis for water quality requirements adopted, but should be eliminated from operator driven decisions— e.g., is a site covered, which permit requirements apply to a site.

13. Major Concerns Regarding the Draft General Permit 4. Numeric Effluent Limits • Major Shift in Regulatory Policy from BMP-Based Approach to NEL Approach • Tremendous Scientific, Technological and Policy Concerns • Concerns Echoed by experts ranging from EPA, to Blue Ribbon Panel, to host of experts submitting comments and credible scientific and technical information in response to the Draft Permit • Impracticable Treatment Volumes • NELs apply to all discharges, regardless of event size/frequency • All runoff from every event must be treated to achieve full compliance with the Draft Permit • Fails to consider impracticability 13

14. Major Concerns --NELs • Failure to Consider Appropriate Data, Evidence and Necessary Evidence and Factors • Shifts To Reliance on NELs • Establishes Valued for NELs • No attempt to conduct a rigorous analysis and balancing in accordance with USEPA protocols and regulations • Requires Extensive Discharge Monitoring to Implement the Approach • Costs greatly underestimated given variety potential for SSC monitoring, increase in mandated monitoring frequency, increase in number of discharge points to monitor • Costs do not include costs of receiving water monitoring bound to be required to inability to achieve 100% compliance • No direct benefit to water quality, particularly for SSC monitoring 14

15. Dr. Wolf’s Question Q:Ignoring the numbers and how they are calculated, do you think that the tiered compliance structure of the permit is a desirable or undesirable feature? By tiered structure we mean action levels 'backstopped' by higher numeric effluent limits that are intended to simplify enforcement against egregious violations. A: City of Irvine believes the tiered structure is flawed, and recommends the iterative BMP-based approach to regulation enhanced by use of ALs to assist in improved planning, implementation and improvement of BMPs. The City supports the “Bridge” approach. 15

16. Major Concerns Regarding the Draft General Permit 5. No Phase-in or Grandfathering period for Regional Boards to Put Individual Construction Permit Program into Place • Need Grandfather Projects Under Construction from Individual Permitting • Need Longer Phase In Period For Risk Based Approach • Grandfather Projects Under Construction from Public Challenge • Grandfather Projects from Hydromod Control if past Tentative Map Approval and/or Vested Development Rights 16

17. Major Concerns Regarding the Draft General Permit 6. Monitoring Requirements • Discharge Monitoring • Support self-monitoring for purpose of BMP planning, adjustment, and improvement via properly calculated ALs • Concerns about costs to implement for NELS without water quality benefit, and requirements for run-on monitoring mandated by NELs • Concerns regarding SSC testing limitations, inconsistencies and vaguely stated triggers, methods, and instructions for sampling and monitoring 17

18. Major Concerns --Monitoring • Receiving Water Monitoring • Extremely expensive • Not effective for enforcement or “Gotcha”—no connection between SSC and bioassessment monitoring and construction sites • Not appropriately conducted by operators • Duplicative of ambient and MS4 permit monitoring, but no additional water quality benefit • Inconsistencies and vaguely stated triggers, methods, and instructions for sampling and monitoring 18

19. Dr. Wolf’s Question Q: Our scientific understanding of when and where a management practice is best is limited. Self monitoring for compliance will not necessarily increase our understanding due to variations between practitioners and for other reasons. Are you interested in creating a scientifically valid database on management practice performance via rigorous third party 'random' monitoring in lieu of self-monitoring and at least partially paid for by permittees? A: City of Irvine supports a properly designed collective monitoring program to collect not only discharge data, but also needed receiving water data.

20. Major Concerns Regarding the Draft General Permit 7. Improper Limitation on Legally Responsible Parties • Only Certain Defined Parties Can File and Update PRDs • Excludes Operators • Exclusion Not Required by EPA Guidelines • Exclusion Burdens Public Works Projects 20

21. Major Concerns Regarding the Draft General Permit 8. Improper Application to Certain Types of Projects • Linear Projects—Infrastructure and Utilities • Distinct Differences-smaller open area, more watersheds • Separate General Permit • Maintenance Projects Previously Exempt • Low Threat • No need to preclude use for private streets

22. Major Concerns –Improper Application to Certain Projects • Projects Of Any Size That Are Part Of A Capital Improvement Project Plan • CMPs contain many projects that are not designed, engineered, funded, or reasonably likely to be developed during the term of the Draft Permit • CMPs do not constitute a Common Plan of Development

23. Mary Lynn Coffee Nossaman Guthner Knox & Elliott LLP 18101 Von Karman Ave., Suite 1800 Irvine, CA 92612 (949) 833-7800 mlcoffee@nossaman.com www.nossaman.com/mlcoffee