BILL REQ. #:  H-1911.1 

Read first time 02/16/09.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to conditioning industrial storm water general discharge permits; amending RCW 90.48.555, 90.48.560, and 90.48.565; creating a new section; 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, 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 that the nature of storm water presents unique challenges and difficulties in meeting the permitting requirements. That meeting these requirements is particularly difficult in areas of heavy urbanization such as Puget Sound. That storm water impacts have been identified by the Puget Sound partnership action agenda and require storm water permitting to be a component of a unified response.

Sec. 2   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 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
     (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 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; or
     (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
     (c) As appropriate, the dilution of the storm water in the receiving waters)).
     (((5))) (4) 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))) (5) 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))) (6)(a) The department shall modify the industrial storm water general permit to require compliance by May 1, ((2009)) 2010, 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))) (7)(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) Adaptive management indicators including numeric or narrative benchmarks may not be used as:
     (i) Substitutes or surrogates for state water quality standards; or
     (ii) An indicator that a discharge is causing or contributing to a violation of an applicable water quality standard.
     (c) Permittees have the option of conducting a probabilistic assessment of the need to implement additional storm water controls using models approved by the department.
     (d) 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))) (8) 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))) (9) 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))) (10) 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))) (11) 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.

Sec. 3   RCW 90.48.560 and 2004 c 225 s 3 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 pursuant to the federal clean water act, 33 U.S.C. Sec. 1251 et seq., and this chapter.
     (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:
     (a) 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));
     (b) 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; and
     (c) Shall, whenever feasible, be conducted within sixty days of the previous inspection.
     (4) Permittees may request an inspection be conducted by the department. The department will respond to the request within thirty days.
     (5) 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
     (c) Discharge to impaired waters of the state.
     (((5))) (6) Nothing in this section shall be construed to limit the department's enforcement discretion.

Sec. 4   RCW 90.48.565 and 2004 c 225 s 5 are each amended 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 RCW 90.48.555 and 90.48.560. 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 RCW 90.48.555 and 90.48.560.
     (3)(a) The department shall use a portion of the permit fees collected for construction and industrial storm water general permits as necessary to:
     (i) Develop a uniform inspection program for the industrial and construction general storm water permits. The program must provide for training of department inspectors to ensure uniformity in inspections across the state and equity in implementation. The department will review and report on the current inspection program performance and identify ways to increase efficiency and reduce costs including improved timely feedback to permittees and improved oversight of the regional programs within the department.
     (ii) Develop a technical assistance program for permittees for the industrial and construction storm water permits. The program must include specific guidance to assist permittees in permit compliance. The department will review and report on the current technical assistance program and identify ways to increase effectiveness and efficiency. The department shall encourage permittees to help fund and support the program with in-kind services.
     (b) The programs in (a)(i) and (ii) of this subsection must be implemented no later than May 2010.
     (4) The department must develop the uniform inspection program and the technical assistance program in subsection (3)(a) of this section in consultation with an advisory committee comprised of at least fifty percent impacted permittees.

NEW SECTION.  Sec. 5   Sections 1 through 3 of this act expire January 1, 2015.