2005 Washington Revised Code RCW 90.48.555: Construction and industrial storm water general permits — Effluent limitations — Report. (Expires January 1, 2015.)

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 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.

[2004 c 225 § 2.]

Expiration date -- 2004 c 225: "This act expires January 1, 2015." [2004 c 225 § 7.]      Conflict with federal clean water act--2004 c 225 §§ 2 and 3: "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." [2004 c 225 § 6.]      Findings -- 2004 c 225: "(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." [2004 c 225 § 1.]      Report to legislature--2004 c 225: "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." [2004 c 225 § 4.]