BILL REQ. #:  H-0868.2 

Read first time 02/02/11.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to construction and industrial storm water general permits; amending RCW 90.48.555; and providing an expiration date.

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

Sec. 1   RCW 90.48.555 and 2009 c 449 s 1 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;
     (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) 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 adaptive storm water ((best management)) mechanisms, including 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) By November 1, 2009, the department shall modify or reissue the industrial storm water general permit to require compliance 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) The industrial storm water general permit must require permittees to comply with appropriately derived numeric limit water quality-based effluent limitations in the permit, as described in (a) of this subsection, by no later than six months after the effective date of the modified or reissued industrial storm water general permit.
     (c) For permittees that the department determines are unable to comply with the numeric water quality-based effluent limitations required by (a) of this subsection, within the timeline established in (b) of this subsection, the department shall establish a compliance schedule as follows:
     (i) Any compliance schedule provided by the department must require compliance as soon as possible, and must require compliance by no later than twenty-four months, or two complete wet seasons, after the effective date of the industrial storm water general permit. For purposes of this subsection (7)(c)(i), "wet seasons" means October 1st through June 30th.
     (ii) The department shall post on its web site the name, location, industrial storm water permit number, and the reason for requesting a compliance schedule for each permittee who requests a compliance schedule according to this subsection (7)(c). The department shall post this information no later than thirty days after receiving a permittee's request for a compliance schedule under this subsection (7)(c). The department shall also prepare a list of organizations and individuals seeking to be notified when such requests for compliance schedules are made, and notify them within thirty days after receiving a permittee's request for a compliance schedule. Notification under this subsection may be accomplished electronically.
     (d) The department shall report to the appropriate committees of the legislature specifying how the appropriately derived 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 appropriately derived 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)) storm water mechanism using benchmarks and action levels as goals, 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)):
     (a) Appropriate monitoring;
     (b) Evaluation review and revisions to the storm water pollution prevention plan;
     (c) Reporting;
     (d) Documentation of remedial actions taken; and
     (e) Timelines for implementing storm water pollution prevention plan revisions in as short a period as practical.
     (9)(a) 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)) be controlled as necessary to meet 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)) that the necessary controls have not met applicable water quality standards, the department may notify the permittee ((of such a violation)) that they will not be renewed under the next release of the general permit unless corrective actions under (b)(i) of this subsection are successful.
     (((10))) (b) 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:
     (i) Take all necessary actions to ensure future discharges do not cause or contribute to the violation of a water quality standard ((and));
     (ii) Document those actions in the storm water pollution prevention plan; and ((a report timely submitted to the department. If violations remain or recur,))
     (iii) Submit a timely report to the department on actions taken and expected results.
     (c) If controls remain ineffective, the department may issue an appropriately derived effluent limit, or coverage under the construction or industrial storm water general permits may be terminated by the department, and:
     (i) An alternative special or general permit may be issued: or
     (ii) An individual permit may be issued.
     (d) 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.
     (12) The department shall, subject to the availability of amounts appropriated for this specific purpose, provide to the legislature a comprehensive risk based storm water regulatory plan that, at a minimum, details:
     (a) Goals and objectives for storm water integration among the existing permits, including:
     (i) A list of priority waterbodies for storm water pollution control;
     (ii) A description of scientific information that will be collected to support permit development;
     (iii) A description of data collection approaches that demonstrate improvements in water quality;
     (iv) Appropriate metrics to demonstrate improvement in the state's water quality from storm water permitting activities; and
     (v) A schedule to implement the primary actions in the storm water regulatory plan; and
     (b) A sustainable funding mechanism with options beyond fees.
     (13) The department is directed to conduct a survey based on standard industrial classification/North American industrial classification system primary and secondary codes of all potential industrial storm water general permit permittees who do not already have coverage. Those permittees determined to need an industrial storm water general permit must be given fifty-nine days to seek coverage from date of notification by the department without being subject to department enforcement for failure to submit a notice of intent. New permittees must have their permit fees prorated through the permit period from date of notification.
     (14)(a) A general permittee may apply to the director for:
     (i) The development of an appropriately derived numeric limit of effluent for one or more parameters applicable to the permittees industrial storm water general permit;
     (ii) Coverage under an applicable special general permit; or
     (iii) An individual permit.
     (b) The director shall make a determination on the application and provide a response within ninety days from application. The director's decision is a final agency action, subject to appeal. The permittee's existing general permit remains in effect during this period unless the permittee has previously been notified of termination.
     (15) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Adaptive storm water mechanisms" means an iterative process by which the permittee uses available data to identify best practices or engineering practices to determine those additional actions necessarily designed to result in permit compliance.
     (b) "Appropriately derived numeric limit" means a process in which the department considers the data associated with the storm water discharge and receiving water to determine at what level or if the storm water discharge is routinely creating a risk of the receiving water exceeding water quality standards. The data considered will, at a minimum, consist of:
     (i) Parameter discharge mass to receiving water from storm water;
     (ii) Discharge variability;
     (iii) Receiving water characteristics affecting water quality for the parameter of concern; and
     (iv) Mitigating factors, such as dissolved carbon, hardness, ligand bonding, mixing zones, and natural background as applicable.
     (A) The department may utilize commonly recognized modeling techniques to determine appropriately derived limits.
     (B) Where it would be extremely difficult to show a direct relationship between storm water discharges and impairments, the department may substitute technology-based limits established for benchmarks for that parameter in lieu of water quality-based limits. The department may not use surrogates for establishing effluent limits unless a direct algorithmic connection can be demonstrated between the surrogate and parameter of concern.
     (c) "Benchmark" means a parameter specific technology-based value representing the expected discharge levels for the best available technology economically achievable.
     (i) The department shall use stakeholder reviewed scientific, engineering, and economic data in setting a benchmark value.
     (ii) Exceeding the benchmark value is not a violation of effluent limits.
     (iii) Exceeding the benchmark value is not an indication of exceeding water quality standards.
     (iv) The department may establish action levels that denote statistically derived ranges of expectation for compliance with benchmarks.
     (16) This section expires January 1, 2015.