BILL REQ. #:  H-4104.1 

Read first time 01/16/2006.   Referred to Committee on Economic Development, Agriculture & Trade.

     AN ACT Relating to storm water discharges; amending RCW 90.48.260 and 90.48.555; adding a new section to chapter 90.48 RCW; and providing an expiration date.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 90.48 RCW to read as follows:
     (1) For storm water discharges associated with small construction activity as identified in 40 C.F.R. 122.26(b)(15), the department may include conditions that incorporate by reference qualified local erosion and sediment control program requirements in construction storm water general permits. A qualified local erosion and sediment control program, at a minimum, must require construction site operators to:
     (a) Implement appropriate erosion and sediment control best management practices;
     (b) Control at the construction site waste that may cause adverse impacts to water quality, such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste;
     (c) Develop and implement a storm water pollution prevention plan; and
     (d) Submit for review and approval by the qualified local program a site plan that incorporates consideration of potential water quality impacts.
     (2) By December 1, 2006, the department shall publish an interpretive or policy statement in the Washington State Register that establishes the procedures and minimum requirements for recognition of qualified local erosion and sediment control programs. Prior to the publication of the interpretive or policy statement in the Washington State Register, the department shall provide opportunity for public review and comment on the proposed criteria and procedures for qualified local erosion and sediment control programs.
     (3)(a) A local government may apply in writing to the department to be recognized as administering a qualified local erosion and sediment control program. The department shall review and determine whether the local erosion and sediment control program is operated and conducted in a manner consistent with the minimum requirements for local erosion and sediment control programs.
     (b) If the department determines that the local erosion and sediment control program is operated and conducted in a manner consistent with the minimum requirements for local erosion and sediment control programs, the department shall approve or approve with conditions the local program as a qualified local program under this section and incorporate the approved program by reference in the department's construction storm water general permit.
     (c) If the department determines that the local erosion and sediment control program is not operated and conducted in a manner consistent with the minimum requirements for local erosion and sediment control programs, it may not approve the local program as a qualified local program under this section.
     (d)(i) The department may revoke recognition of a qualified local erosion and sediment control program if the department determines the local erosion and sediment control program is not implemented in a manner consistent with the minimum requirements established by the department for qualified local erosion and sediment control programs.
     (ii) If the department revokes recognition of a qualified local erosion and sediment control program, the local program shall immediately notify all construction sites covered by the local erosion and sediment control program that the local program has been revoked and that the construction site must comply with all applicable provisions of the department's construction storm water general permit and must pay permit fees pursuant to RCW 90.48.465.
     (4) A qualified local erosion and sediment control program shall provide an opportunity for public review and comment of at least thirty days on an application by a construction site operator for approval by the qualified local program. The program may combine the public review and comment period with other public review and comment periods provided by the local government.
     (5) The following actions under this section are appealable to the pollution control hearings board under chapter 43.21B RCW:
     (a) The department's decision to approve or approve with conditions and incorporate a qualified local erosion and sediment control program into the department's construction storm water general permit;
     (b) The department's decision to deny approval of a local erosion and sediment control program under this section;
     (c) The department's determination of whether the minimum requirements of a qualified local erosion and sediment control program meet applicable requirements of the federal clean water act;
     (d) The department's decision to revoke a qualified local erosion and sediment control program; and
     (e) The qualified local program's decision to approve, condition, or deny an application by a construction site operator.
     (6) The provisions of RCW 90.48.170 and 90.48.465 are not applicable to a construction site operator with storm water discharges associated with small construction activity as identified in 40 C.F.R. 122.26(b)(15) and that are located in areas with qualified local erosion and sediment control programs if the construction site operator is in full compliance with the requirements of a qualified local erosion and sediment control program approved by the department.

Sec. 2   RCW 90.48.260 and 2003 c 325 s 7 are each amended to read as follows:
     The department of ecology is hereby designated as the State Water Pollution Control Agency for all purposes of the federal clean water act as it exists on February 4, 1987, and is hereby authorized to participate fully in the programs of the act as well as to take all action necessary to secure to the state the benefits and to meet the requirements of that act. With regard to the national estuary program established by section 320 of that act, the department shall exercise its responsibility jointly with the Puget Sound ((water quality authority)) action team. The department of ecology may delegate its authority under this chapter, including its national pollutant discharge elimination permit system authority and duties regarding animal feeding operations and concentrated animal feeding operations, to the department of agriculture through a memorandum of understanding. Until any such delegation receives federal approval, the department of agriculture's adoption or issuance of animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives pertaining to water quality shall be accomplished after reaching agreement with the director of the department of ecology. Adoption or issuance and implementation shall be accomplished so that compliance with such animal feeding operation and concentrated animal feeding operation rules, permits, programs, and directives will achieve compliance with all federal and state water pollution control laws. The powers granted herein include, among others, and notwithstanding any other provisions of chapter 90.48 RCW or otherwise, the following:
     (1) Complete authority to establish and administer a comprehensive state point source waste discharge or pollution discharge elimination permit program which will enable the department to qualify for full participation in any national waste discharge or pollution discharge elimination permit system and will allow the department to be the sole agency issuing permits required by such national system operating in the state of Washington subject to the provisions of RCW 90.48.262(2) and section 1 of this act. Program elements authorized herein may include, but are not limited to: (a) Effluent treatment and limitation requirements together with timing requirements related thereto; (b) applicable receiving water quality standards requirements; (c) requirements of standards of performance for new sources; (d) pretreatment requirements; (e) termination and modification of permits for cause; (f) requirements for public notices and opportunities for public hearings; (g) appropriate relationships with the secretary of the army in the administration of his responsibilities which relate to anchorage and navigation, with the administrator of the environmental protection agency in the performance of his duties, and with other governmental officials under the federal clean water act; (h) requirements for inspection, monitoring, entry, and reporting; (i) enforcement of the program through penalties, emergency powers, and criminal sanctions; (j) a continuing planning process; and (k) user charges.
     (2) The power to establish and administer state programs in a manner which will ((insure)) ensure the procurement of moneys, whether in the form of grants, loans, or otherwise; to assist in the construction, operation, and maintenance of various water pollution control facilities and works; and the administering of various state water pollution control management, regulatory, and enforcement programs.
     (3) The power to develop and implement appropriate programs pertaining to continuing planning processes, area-wide waste treatment management plans, and basin planning.
     The governor shall have authority to perform those actions required of him or her by the federal clean water act.

Sec. 3   RCW 90.48.555 and 2004 c 225 s 2 are each amended to read as follows:
     The provisions of this section apply to the construction and industrial storm water general permits issued by the department and to construction permits issued by a qualified local program 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 and in construction permits issued by a qualified local program 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 and in construction permits issued by a qualified local program 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
     (c) A combination of numeric and narrative effluent discharge limitations.
     (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 and a qualified local program must condition construction permits 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 or a qualified local program that:
     (i) The discharges covered under either the construction or industrial storm water general permits or a construction permit issued by a qualified local program 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 or a qualified local program 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
     (c) As appropriate, the dilution of the storm water in the receiving waters.
     (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 and for construction permits issued by a qualified local program, 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 a qualified local program, or practices that are demonstrably equivalent to practices contained in storm water technical manuals approved by the department or the qualified local program, 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 and construction permits issued by a qualified local program 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 or the qualified local program, as appropriate.
     (b) Construction and industrial storm water general permits issued by the department and construction permits issued by a qualified local program 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 or under construction permits issued by a qualified local program 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 or qualified local program may notify the permittee of such a violation.
     (10) Once notified by the department or qualified local program 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 or qualified local program. 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. 4   Section 3 of this act expires January 1, 2015.