READ FIRST TIME 02/09/04.   

     AN ACT Relating to conditioning industrial and construction storm water general discharge permits; adding new sections to chapter 90.48 RCW; creating new sections; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that the federal permit program under the federal clean water act and the state water pollution control laws provide numerous environmental and public health benefits to the citizens of Washington and to the state. Failure to prevent and control pollution discharges, including those associated with storm water runoff, can damage the 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, including compliance with technology and water quality-based standards.
     (3) The legislature finds that the federal clean water act 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 finds general permits must comply with all applicable requirements of the federal clean water act 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 requirements imposed under the federal clean water act, the sources in that specific category or subcategory must be subject to the same water quality-based requirements.
     (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 further 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 declares that general permits can be an effective and efficient permitting mechanism for permitting large numbers of similar dischargers.
     (9) The legislature further declares that an inspection and technical assistance program for industrial and construction storm water general permits is needed to ensure an effective permitting program. 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:
     (1) Effluent limitations shall be included in construction and industrial storm water general permits as required under the federal clean water act and implementing regulations. In accordance with federal clean water act requirements, effluent limitations must 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, effluent limitations may be expressed as (a) numeric effluent limitations; (b) narrative effluent limitations; or (c) a combination of numeric and narrative effluent discharge limitations.
     (3) The department may only 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 the discharges covered under either the construction or industrial storm water general permits have (i) a reasonable potential to cause or contribute to violation of state water quality standards; and (ii) a determination by the department that 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 runoff; and (c) as appropriate, the dilution of the storm water in the receiving waters.
     (5) Narrative effluent limitations requiring the implementation of best management practices, when designed to satisfy technology and water quality-based requirements of the federal clean water act, 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 site specific information demonstrates otherwise, when the permittee is:
     (a) In compliance with permit conditions for planning, sampling, monitoring, reporting, and recordkeeping; and
     (b) Following storm water management practices, 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 appropriate best management practices for on-site pollution control.
     (7) Existing discharges to receiving waters listed under section 303(d) of the federal clean water act shall be conditioned on an interim effluent discharge limit based on compliance with all requirements of a permit including implementation of best management practices for a period of ten years or until a completed total maximum daily load is adopted by the department, whichever is earlier.
     (8) Permittees covered under the construction and industrial storm water 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 must notify the permittee of such a violation.
     (9) Once notified by the department that 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.
     (10) Receiving water sampling shall not be a requirement of an industrial or construction storm water general permit unless it can be conducted without endangering the health and safety of a permittee and its employees.

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 program of all permittees covered under the construction and industrial storm water general permits. The purpose of the inspections is to:
     (a) Provide technical assistance and survey for evidence of permit violations;
     (b) Identify corrective actions for actual or imminent discharges that violate or could violate the state's water quality standards;
     (c) Monitor the development and implementation of storm water pollution prevention plans; and
     (d) Identify dischargers who would benefit from follow-up technical assistance programs.
     (2) 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 conduct such additional inspections 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.
     (3) Permittees must be prioritized for inspection based on the development of criteria that include, but are not limited to, the following factors:
     (a) Historical compliance history, including submittal or nonsubmittal of discharge monitoring reports;
     (b) Monitoring results in relationship to permit benchmarks; and
     (c) Discharge to impaired waters of the state.

NEW SECTION.  Sec. 4   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. 5   This act expires January 1, 2015.

NEW SECTION.  Sec. 6   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.