6415-S.E AMH LINV H5333.2

ESSB 6415 - H AMD 1180

By Representative Linville

ADOPTED 03/09/2004

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. (1) The legislature finds that the federal permit program under the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and the state water pollution control laws provide numerous environmental and public health benefits to the citizens of Washington and to the state. The legislature also finds that failure to prevent and control pollution discharges, including those associated with storm water runoff, can degrade water quality and damage the environment, public health, and industries dependent on clean water such as shellfish production.

(2) The legislature finds the nature of storm water presents unique challenges and difficulties in meeting the permitting requirements under the federal clean water act, 33 U.S.C. Sec. 1251 et seq., including compliance with technology and water quality-based standards.

(3) The legislature finds that the federal clean water act, 33 U.S.C. Sec. 1251 et seq., requires certain larger construction sites and industrial facilities to obtain storm water permits under the national pollutant discharge elimination system permit program. The legislature also finds that under phase two of this program, smaller construction sites are also required to obtain storm water permits for their discharges.

(4) The legislature finds the department of ecology has been using general permits to permit categories of similar dischargers, including storm water associated with industrial and construction activities. The legislature also finds general permits must comply with all applicable requirements of the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and the state water pollution control act including technology and water quality-based permitting requirements. The legislature further finds general permits may not always be the best solution for an individual discharger, especially when establishing water quality-based permitting requirements.

(5) The legislature finds that where sources within a specific category or subcategory of dischargers are subject to water quality-based limits imposed under the federal clean water act, 33 U.S.C. Sec. 1251 et seq., the sources in that specific category or subcategory must be subject to the same water quality-based limits.

(6) For this reason, the legislature encourages, to the extent allowed under existing state and federal law, an adaptive management approach to permitting storm water discharges.

(7) The legislature finds that storm water management must satisfy state and federal water quality requirements while also providing for flexibility in meeting such requirement to help ensure cost-effective storm water management.

(8) The legislature finds that the permitting of new and existing dischargers into waters listed under 33 U.S.C. Sec. 1313(d) (section 303(d) of the federal clean water act) presents specific challenges and is subject to additional permitting restrictions under the federal clean water act, 33 U.S.C. Sec. 1251 et seq.

(9) The legislature declares that general permits can be an effective and efficient permitting mechanism for permitting large numbers of similar dischargers.

(10) The legislature declares that an inspection and technical assistance program for industrial and construction storm water general permits is needed to ensure an effective permitting program. The legislature also declares that such a program should be fully funded to ensure its success.

NEW SECTION. Sec. 2. A new section is added to chapter 90.48 RCW to read as follows:

The provisions of this section apply to the construction and industrial storm water general permits issued by the department pursuant to the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and this chapter.

(1) Effluent limitations shall be included in construction and industrial storm water general permits as required under the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and its implementing regulations. In accordance with federal clean water act requirements, pollutant specific, water quality-based effluent limitations shall be included in construction and industrial storm water general permits if there is a reasonable potential to cause or contribute to an excursion of a state water quality standard.

(2) Subject to the provisions of this section, both technology and water quality-based effluent limitations may be expressed as:

(a) Numeric effluent limitations;

(b) Narrative effluent limitations; or

(3) The department must condition storm water general permits for industrial and construction activities issued under the national pollutant discharge elimination system of the federal clean water act to require compliance with numeric effluent discharge limits when such discharges are subject to:

(a) Numeric effluent limitations established in federally adopted, industry-specific effluent guidelines;

(b) State developed, industry-specific performance-based numeric effluent limitations;

(c) Numeric effluent limitations based on a completed total maximum daily load analysis or other pollution control measures; or

(d) A determination by the department that:

(i) The discharges covered under either the construction or industrial storm water general permits have a reasonable potential to cause or contribute to violation of state water quality standards; and

(ii) Effluent limitations based on nonnumeric best management practices are not effective in achieving compliance with state water quality standards.

(4) In making a determination under subsection (3)(d) of this section, the department shall use procedures that account for:

(a) Existing controls on point and nonpoint sources of pollution;

(b) The variability of the pollutant or pollutant parameter in the storm water discharge; and

(5) Narrative effluent limitations requiring both the implementation of best management practices, when designed to satisfy the technology and water quality-based requirements of the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and compliance with water quality standards, shall be used for construction and industrial storm water general permits, unless the provisions of subsection (3) of this section apply.

(6) Compliance with water quality standards shall be presumed, unless discharge monitoring data or other site specific information demonstrates that a discharge causes or contributes to violation of water quality standards, when the permittee is:

(a) In full compliance with all permit conditions, including planning, sampling, monitoring, reporting, and recordkeeping conditions; and

(b)(i) Fully implementing storm water best management practices contained in storm water technical manuals approved by the department, or practices that are demonstrably equivalent to practices contained in storm water technical manuals approved by the department, including the proper selection, implementation, and maintenance of all applicable and appropriate best management practices for on-site pollution control.

(ii) For the purposes of this section, "demonstrably equivalent" means that the technical basis for the selection of all storm water best management practices are documented within a storm water pollution prevention plan. The storm water pollution prevention plan must document:

(A) The method and reasons for choosing the storm water best management practices selected;

(B) The pollutant removal performance expected from the practices selected;

(C) The technical basis supporting the performance claims for the practices selected, including any available existing data concerning field performance of the practices selected;

(D) An assessment of how the selected practices will comply with state water quality standards; and

(E) An assessment of how the selected practices will satisfy both applicable federal technology-based treatment requirements and state requirements to use all known, available, and reasonable methods of prevention, control, and treatment.

(7)(a) The department shall modify the industrial storm water general permit to require compliance by May 1, 2009, with appropriately derived numeric water quality-based effluent limitations for existing discharges to water bodies listed as impaired according to 33 U.S.C. Sec. 1313(d) (Sec. 303(d) of the federal clean water act, 33 U.S.C. Sec. 1251 et seq.).

(b) No later than September 1, 2008, the department shall report to the appropriate committees of the legislature specifying how the numeric effluent limitation in (a) of this subsection would be implemented. The report shall identify the number of dischargers to impaired water bodies and provide an assessment of anticipated compliance with the numeric effluent limitation established by (a) of this subsection.

(8)(a) Construction and industrial storm water general permits issued by the department shall include an enforceable adaptive management mechanism that includes appropriate monitoring, evaluation, and reporting. The adaptive management mechanism shall include elements designed to result in permit compliance and shall include, at a minimum, the following elements:

(i) An adaptive management indicator, such as monitoring benchmarks;

(ii) Monitoring;

(iii) Review and revisions to the storm water pollution prevention plan;

(iv) Documentation of remedial actions taken; and

(v) Reporting to the department.

(b) Construction and industrial storm water general permits issued by the department also shall include the timing and mechanisms for implementation of treatment best management practices.

(9) Construction and industrial storm water discharges authorized under general permits must not cause or have the reasonable potential to cause or contribute to a violation of an applicable water quality standard. Where a discharge has already been authorized under a national pollutant discharge elimination system storm water permit and it is later determined to cause or have the reasonable potential to cause or contribute to the violation of an applicable water quality standard, the department may notify the permittee of such a violation.

(10) Once notified by the department of a determination of reasonable potential to cause or contribute to the violation of an applicable water quality standard, the permittee must take all necessary actions to ensure future discharges do not cause or contribute to the violation of a water quality standard and document those actions in the storm water pollution prevention plan and a report timely submitted to the department. If violations remain or recur, coverage under the construction or industrial storm water general permits may be terminated by the department, and an alternative general permit or individual permit may be issued. Compliance with the requirements of this subsection does not preclude any enforcement activity provided by the federal clean water act, 33 U.S.C. Sec. 1251 et seq., for the underlying violation.

(11) Receiving water sampling shall not be a requirement of an industrial or construction storm water general permit except to the extent that it can be conducted without endangering the health and safety of persons conducting the sampling.

(12) The department may authorize mixing zones only in compliance with and after making determinations mandated by the procedural and substantive requirements of applicable laws and regulations.

NEW SECTION. Sec. 3. A new section is added to chapter 90.48 RCW to read as follows:

(1) By January 1, 2005, the department shall initiate an inspection and compliance program for all permittees covered under the construction and industrial storm water general permits. The program shall include, but may not be limited to, the:

(a) Provision of compliance assistance and survey for evidence of permit violations and violations of water quality standards;

(b) Identification of corrective actions for actual or imminent discharges that violate or could violate the state's water quality standards;

(c) Monitoring of the development and implementation of storm water pollution prevention plans and storm water monitoring plans;

(d) Identification of dischargers who would benefit from follow-up inspection or compliance assistance programs; and

(e) Collection and analysis of discharge and receiving water samples whenever practicable and when deemed appropriate by the department, and other evaluation of discharges to determine the potential for causing or contributing to violations of water quality standards.

(2) The department's inspections under this section shall be conducted without prior notice to permittees whenever practicable.

(3) Follow-up inspections shall be conducted by the department to ensure that corrective and other actions as identified in the course of initial inspections are being carried out. The department shall also take such additional actions as are necessary to ensure compliance with state and federal water quality requirements, provided that all permittees must be inspected once within two years of the start of this program and each permittee must be inspected at least once each permit cycle thereafter.

(4) Permittees must be prioritized for inspection based on the development of criteria that include, but are not limited to, the following factors:

(a) Compliance history, including submittal or nonsubmittal of discharge monitoring reports;

(b) Monitoring results in relationship to permit benchmarks; and

(5) Nothing in this section shall be construed to limit the department's enforcement discretion.

NEW SECTION. Sec. 4. No later than December 31, 2006, the department of ecology shall submit a report to the appropriate committees of the legislature regarding methods to improve the effectiveness of permit monitoring requirements in construction and industrial storm water general permits. The department of ecology shall study and evaluate how monitoring requirements could be improved to determine the effectiveness of storm water best management practices and compliance with state water quality standards. In this study the department also shall evaluate monitoring requirements that are necessary for determining compliance or noncompliance with state water quality standards and shall evaluate the feasibility of including such monitoring in future permits. When conducting this study, the department shall consult with experts in the fields of monitoring, storm water management, and water quality, and when necessary the department shall conduct field work to evaluate the practicality and usefulness of alternative monitoring proposals.

NEW SECTION. Sec. 5. A new section is added to chapter 90.48 RCW to read as follows:

(1) The department shall establish permit fees for construction and industrial storm water general permits as necessary to fund the provisions of sections 2 and 3 of this act. When calculating appropriate fee amounts, the department shall take into consideration differences between large and small businesses and the economic impacts caused by permit fees on those businesses. Fees established under this section shall be adopted in accordance with chapter 34.05 RCW.

(2) In its biennial discharge fees progress report required by RCW 90.48.465, the department shall include a detailed accounting regarding the method used to establish permit fees, the amount of permit fees collected, and the expenditure of permit fees. The detailed accounting shall include data on inspections conducted and the staff hired to implement the provisions of sections 2 and 3 of this act.

NEW SECTION. Sec. 6. If any portion of sections 2 and 3 of this act are found to be in conflict with the federal clean water act, that portion alone is void.

NEW SECTION. Sec. 7. This act expires January 1, 2015.

NEW SECTION. Sec. 8. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2004, in the omnibus appropriations act, this act is null and void."

Correct the title.

EFFECT: The striking amendment makes the following changes:

Presumption of Compliance: Requires full compliance with all permit conditions and full implementation of all applicable and appropriate best management practices either contained in Department of Ecology (DOE) approved storm water technical manuals or demonstrably equivalent to those practices. Defines "demonstrably equivalent" for best management practices other than those included in the DOE manuals.

Sec. 303(d) Listed Waters: Requires the DOE to modify the industrial storm water general permit to require compliance by May 1, 2009, with appropriately derived numeric effluent limitations for existing discharges to Sec. 303(d) listed waters. Requires the DOE to report to the appropriate legislative committees regarding the implementation of numeric effluent limitations.

Adaptive Management: Requires the DOE to include an adaptive management mechanism in construction and industrial storm water general permits and specifies the mandatory adaptive management elements.

Water Quality Standards Violations: Adds requirement for permittees to provide a timely report to the DOE regarding actions to ensure discharges do not cause or contribute to a water quality standard violation after receiving a notice from the DOE. Allows the DOE to terminate a general permit and issue an alternative or individual permit if violations remain or recur. Specifies these provisions do not preclude enforcement activities authorized under the federal Clean Water Act.

Mixing Zones: Specifies the DOE may authorize mixing zones only in compliance with and after making determinations mandated by applicable laws and regulations.

Inspection Program: Focuses program on inspection and compliance and revises elements of inspection program to incorporate consideration of storm water monitoring plans and actions to identify and address water quality violations. Specifies DOE is to conduct inspections without prior notice whenever practicable. Revises provisions regarding follow-up inspections to focus on compliance and to require inspection of each permittee at least once each permit cycle. Specifies these provisions do not limit the DOE's enforcement discretion.

Monitoring Report: Requires the DOE to report to the appropriate legislative committees by December 31, 2006, regarding methods to improve effectiveness of permit monitoring requirements. Specifies requirements for the DOE study conducted for this report.

Permit Fees: Allows the DOE to establish permit fees for construction and industrial storm water general permits as necessary to fund these provisions (other than the monitoring study and report). Specifies factors the DOE must consider in calculating these permit fees and requires permit fees to be adopted according to the Administrative Procedure Act. Requires the DOE to include in its biennial discharge fees progress report a detailed accounting related to permit fees for industrial and construction storm water general permits.

Legislative Findings: Adds legislative findings regarding: (1) Challenges and restrictions associated with permitting new and existing discharges into Sec. 303(d) listed waters; and (2) water quality degradation and environmental damage resulting from failure to prevent and control storm water pollution discharges.

Other Changes: Adds provisions referencing technology and water quality-based effluent limitations in construction and industrial storm water general discharge permits. Includes numerous technical revisions.

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