Presentation by Brenda W. Davis
AGC of California
Board of Directors Meeting
January 26, 2012
General Permit Background
The federal Clean Water Act [33 U.S.C.A.
§§ 1251 et seq.] provides for a permit
system to regulate the discharge of
pollutants and dredged or fill material to
the “ navigable” waters of the United
States and to regulate the use and
disposal of sewage sludge. [Wat. Code, §
13370 subd. (a); see 33 U.S.C.A. § 1342]
National Pollutant Discharge
Elimination System (“NPDES”)
The permit system is called the NPDES. The Clean Water
Act provides that NPDES permits may be issued by states
that are authorized to implement the provisions of the act.
[ Wat. Code, § 13370 subd. (b); 33 U.S.C.A. § 1342(b)]
California is authorized to implement the NPDES [Wat.
Code, § 13370 subd. (c)], which it does by ensuring that
each report of waste discharge related to discharges of
pollutants from point sources to navigable water is filed
and processed in compliance with the federal regulations
governing the NPDES program [Wat. Code, § 13376; Cal.
Code Reg, tit. 23, § 2235.1] and that waste discharge
requirements issued by the boards for discharges from
point sources to navigable waters comply with the Clean
Water Act provisions. [Wat. Code, §§ 13374, 13377; Cal.
Code Reg., tit. 23, § 2235.2]
General Permit for Discharges of
Storm Water Associated with
While federal regulations allow two
permitting options for storm water
discharges (individual permits and
General Permits), the SWRCB has elected
to adopt only one statewide General
Permit at this time that will apply to all
storm water discharges associated with
Construction General Permit Order
To obtain coverage under this General Permit,
dischargers shall electronically file:
The Permit Registration Documents (PRDs), which
includes a Notice of Intent (NOI), Storm Water
Pollution Prevention Plan (SWPPP), and other
compliance related documents required …
It is expected that as the storm water program
develops, the Regional Water Quality Control Boards
(Regional Water Boards) may issue General Permits or
Individual Permits containing more specific permit
CWA Discharges and
A person who discharges pollutants or proposes
to discharge pollutants to the navigable waters of
the United States …shall file a report of the
discharge in compliance with the procedures set
forth in Section 13260. Cal. Water Code § 13376
All permits require the facility to submit periodic
monitoring reports to the Regional Board.
Dischargers must also report on compliance with
time schedules contained in orders. Finally,
dischargers must report any incident that could
impact water quality, such as spills or permit
◦ Inspection Reports/Notices of Violation/Staff
Enforcement Letters/Verbal Notification – Provide
notification of violations;
◦ 13267 Letters – Directives to provide information;
◦ Cleanup and Abatement Orders;
◦ Cease and Desist Orders: may be issued directly by a
regional water quality control board, after notice and
hearing; C/D orders of a regional water quality control
board become effective and final upon issuance;
◦ Administrative Civil Liabilities;
◦ Referral to the Attorney General or a District Attorney for
prosecution in the courts;
◦ Citizen Suits.
The first step in SWRCB enforcement ranking is determining the relative significance of each
Class I priority violations are those violations that pose an immediate and
substantial threat to water quality and that have the potential to cause significant
detrimental impacts to human health or the environment; Class I priority violations
include, but are not limited to, the following:
◦ a. Significant measured or calculated violations with lasting effects on water
quality objectives or criteria in the receiving waters;
◦ b. Violations that result in significant lasting impacts to existing beneficial uses of
waters of the State;
◦ c. Violations that result in significant harm to, or the destruction of, fish or
◦ d. Violations that present an imminent danger to public health;
◦ e. Unauthorized discharges that pose a significant threat to water quality;
◦ f. Falsification of information submitted to the Water Boards or intentional
withholding of information required by applicable laws, regulations, or
◦ g. Violation of a prior enforcement action
Class II violations are those violations that pose a moderate, indirect, or cumulative
threat to water quality and, therefore, have the potential to cause detrimental
impacts on human health and the environment. Negligent or inadvertent
noncompliance with water quality regulations that has the potential for causing or
allowing the continuation of an unauthorized discharge or obscuring past violations is
also a class II violation.
Class III violations are all violations that are not class I priority or class II
Enforcement Priorities for
The second step in enforcement ranking involves
examining the enforcement records of specific entities
based on the significance and severity of their violations.
Factors considered include:
◦ Class of the entity’s violations;
◦ History of the entity
a. Whether the violations have continued over an unreasonably long
period after being brought to the entity’s attention and are reoccurring;
b. Whether the entity has a history of chronic noncompliance;
c. Compliance history of the entity and good-faith efforts to eliminate
◦ Evidence of, or threat of, pollution or nuisance caused by
◦ The magnitude or impacts of the violations;
◦ Case-by-case factors that may mitigate a violation.
Contractors’ rights and remedies
Appeal of RWQCB Decision:
◦ Any party may appeal a Regional Board action,
or inaction, not just the party being regulated.
Appeals must be made within 30 days of the
Regional Board's action and can be done by
writing a letter to the State Board.
Some Factors in calculating the “Total Base
Liability Amount” include:
◦ Potential for Harm for Discharge Violations –
Calculate Potential for Harm considering: (1) the
potential for harm to beneficial uses; (2) the degree
of toxicity of the discharge; and (3) the discharge’s
susceptibility to cleanup or abatement;
◦ Per Gallon and Per Day Assessments;
◦ Adjustment Factors – Adjust the initial amounts for
each violation by factors addressing the violator’s
conduct, multiple instances of the same violation,
and multiple day violations;
Total Base Liability amount may be
adjusted, based on consideration of:
◦ Ability to Pay and Ability to Continue in
◦ Other Factors as Justice May Require;
◦ Economic Benefit;
◦ Maximum and Minimum Liability Amounts.
Once adjustments are considered, the
“Final Liability Amount” will be assessed.
C/D Order: An aggrieved person may obtain
review of any preliminary cease and desist order
by petition for administrative mandamus;
Cal. Water Code § 1126: “Any party aggrieved by
any decision or order may, not later than 30 days
from the date of final action by the board, file a
petition for …for review of the decision or order.
Except in cases where the decision or order is
issued under authority delegated to an officer or
employee of the board, reconsideration before
the board is not an administrative remedy that is
required to be exhausted before filing a petition
for writ of mandate.
CA APA: To comply with the Administrative
Procedures Act (APA) …an agency must:
◦ give the public notice of its proposed regulatory action;
◦ issue a complete text of the proposed regulation with a
statement of the reasons for it;
◦ give interested parties an opportunity to comment on the
◦ respond in writing to public comments, and;
◦ forward a file of all materials on which the agency relied in
the regulatory process to the Office of Administrative Law,
which reviews the regulation for consistency with the law,
clarity, and necessity.
Any regulation that substantially fails to comply with these
requirements may be judicially declared invalid.
Cal.Gov.Code §§ 11340.5(a), 11346.2, 11346.4, 11346.5,
11346.8(a), 11346.9, 11347.3(b), 11349.1, 11349.3.
Federal Administrative Procedure Act requires:
◦ Notice; General notice of proposed rule making shall be
published in the Federal Register…
Contents-5 U.S.C.A. § 553: “The notice shall include--(1)
a statement of the time, place, and nature of public rule
making proceedings;(2) reference to the legal authority
under which the rule is proposed; and (3) either the
terms or substance of the proposed rule or a description
of the subjects and issues involved.
◦ Public comments (the golden key to public participation)-
5 U.S.C.A. § 553: c) After notice required, the agency
shall give interested persons:
an opportunity to participate in the rule making through
submission of written data, views, or arguments with or
without opportunity for oral presentation
After consideration of the relevant matter presented, the
agency shall incorporate in the rules adopted a concise
general statement of their basis and purpose.
General Permit Renewal in 2014
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