Depending on how various provisions are interpreted and enforced, the MRP will have significant impacts on Contra Costa County, Contra Costa County Flood Control and Water Conservation District (FCD) and the citizens and businesses we serve. The impacts include a potential $28 million demand for new funds (possibly from the General Fund) over the next five years of the MRP’s term for County activities and more than $5 million for FCD activities.  
  
Although the Public Works Department will bear the brunt of the fiscal impacts, other departments will also be significantly impacted.   
  
Currently, the Public Works Department’s annual cost to implement the NPDES permit is approximately $3 million (excluding certain substantial costs that are funded by grants). The estimated total additional cost for the five year NPDES permit period is approximately $28 million. Attachments A, B, and C contain more detail regarding the costs to the Public Works Department for implementing the MRP.  

INTRODUCTION  
  
The San Francisco Bay Regional Water Quality Control Board (RWQCB) on October 14, 2009, re-issued the National Pollutant Discharge Elimination System (NPDES) permit that affects Contra Costa County. This permit, which has been in the works for almost 5 years, is known as the Municipal Regional Permit (MRP), will regulate unincorporated Contra Costa County, the Contra Costa County Flood Control and Water Conservation District (FCD), all the cities within Contra Costa County and most jurisdictions in the greater San Francisco Bay Area.   
  
The MRP was originally released for public comment on December 14, 2007. The Public Works Department, County Watershed Program (CWP), analyzed the MRP and presented a report on its impacts to the Transportation, Water and Infrastructure Committee (TWIC) on February 11, 2008, and the Contra Costa County Board of Supervisors on February 26, 2008. A comment letter from the Board of Supervisors was submitted to the RWQCB on February 29, 2008 and Supervisor Uilkema (along with many other elected officials and municipal staff) gave testimony at the March 11, 2008, public hearing. The MRP was then revised and released for public comment on February 11, 2009. The effects of the MRP were analyzed again and a report was submitted to the TWIC on March 30, 2009 and the full Board of Supervisors on March 31, 2009. Again significant testimony, including that of Supervisor Piepho, was provided to the RWQCB on May 13, 2009. Based on the testimony the MRP was again revised, this time without the option for additional written comments. On October 14, 2009 the RWQCB voted to adopt this final MRP and, withstanding appeals, it is scheduled to become effective on December 1, 2009.   
  
Due to our (and others’) previous comments and testimony, this adopted MRP is an improvement over the prior two versions. However, there are still very significant issues and costs associated with this MRP. This report highlights the effects that this MRP is anticipated to have on County and County Flood Control District operations. The MRP is quite lengthy (125 pages plus 152 pages of attachments) and at times complicated and confusing. One of our major concerns remains that some sections of the MRP seem to be in conflict with other sections. We also feel that this MRP still attempts to regulate on a “one size fits all” basis. Despite our concerns, the MRP is now law and we will be required to comply with it to the best of our ability. With these new issues in mind this report will attempt to analyze the MRP and highlight impacts it will have on our normal business and how we plan to comply with the MRP.   
  
This MRP, as opposed to our existing NPDES permit, adds significant requirements on the FCD. Even though our existing NPDES permit names the FCD as a co-permittee, the FCD has very limited requirements. This would be expected since the FCD has no land use authority, is non-population based, and merely builds, operates and maintains stormwater conveyance facilities. Where appropriate, this report will highlight the new FCD requirements.   
  
  
REASONS FOR RECOMMENDATIONS AND BACKGROUND   
  
The MRP becomes effective on December 1, 2009. Therefore, the County and the FCD need to strategize as to how to meet the MRP requirements in the most effective and cost efficient means possible. Since the MRP is a regional permit we are proposing that some of the requirements can more effectively be addressed at the regional level.   
  
History:  
  
In an effort to stop pollution of the “Waters of the United States,” the Federal Government passed the Clean Water Act (CWA) in 1972. Initially, the U.S. Environmental Protection Agency’s (USEPA) implementation of the CWA emphasized control of pollution from Point Sources (e.g. industry, sewage treatment plants, etc. with pipe outfalls). In 1987, the scope of the CWA was expanded to regulate Non-Point Source Pollution (pollution primarily conveyed by stormwater runoff from urban, suburban and agricultural lands). For Contra Costa County, this is generally the stormwater (originating on both public and private property) that is carried in the public drainage system (underground pipes, drainage channels, etc.) to the “Waters of the U.S.” (natural creek systems, the Delta, the San Francisco Bay and eventually the Pacific Ocean).   
  
In 1993, the RWQCB, issued Contra Costa County its first NPDES permit. The NPDES permit required the County, its cities and the Flood Control District to act jointly to implement the permit conditions. The responsibility for unincorporated County compliance with the permit was assigned to the Public Works Department (PWD), which created the County Watershed Program to manage the overall implementation and administration of NPDES compliance. Since 1993, our NPDES permit has been reissued once (1999), and one major revision has been made to the permit (adding the development/redevelopment Provision C.3 in 2003). The MRP represents the third NPDES permit for Contra Costa County.   
  
Permit “Approach”:  
  
With each new NPDES permit the requirements have grown more stringent and the related costs have increased. The MRP retains the educational focus of previous permits, expands enforcement of violations, increases the regulation of municipal operations and new development, and also specifies various targeted pollutants, the most publicized being trash, that must be remediated. The MRP requires that permittees evaluate these targeted pollutants to determine their current levels of concentration and then take specific actions to reduce, and in some instances, eliminate them. The MRP affects virtually all of our business practices, from the way the County offices are maintained to the way we issue business licenses, the County will benefit from a “team approach” to complying with the permit. The Public Works Department’s CWP will continue to oversee the County’s NPDES compliance, but the challenges of complying with the new permit will involve a substantially higher level of day-to-day cooperation with other County Departments and Special Districts.   
  
Consequences of Non-Compliance:   
  
If the County is found to be out of compliance with our MRP, the penalties can be as high as $35,000 per day per violation (each area of non compliance could be viewed as a separate violation), plus $10 per gallon of stormwater discharged into the “Waters of the United States.” In addition, if found to be out of compliance with the permit, the County would be vulnerable to 3rd party lawsuits from environmental and “watchdog” groups. The results of these lawsuits could far exceed the penalties that may be imposed by the RWQCB or the USEPA. It should be noted that this MRP drew significant input from the environmental community and several of these groups were not pleased that the MRP was not more strictly written than it is. As a result, it is expected that these groups will be “scrutinizing” permittees to make sure that they are in strict compliance with the MRP.  
  
MRP REGULATORY AREA  
  
The MRP differs from the County’s current NPDES permit in that the MRP will uniformly regulate most of the Bay Area. In addition to Contra Costa County, and its incorporated cities and special districts, this MRP also regulates Alameda, Santa Clara, and San Mateo Counties, and several cities and agencies in Solano County including Fairfield-Suisun and Vallejo. Given the regulatory reach of the new permit, we expect increased potential for cooperation among agencies to find regional solutions to our common regulatory requirements.  
  
MRP TIMING  
  
The MRP was adopted on October 14, 2009, with implementation to commence on December 1, 2009. Under this schedule, the five year MRP will be in effect until at least December 1, 2014 (or until the next reissuance of the NPDES permit). It should be noted that many components of the MRP are phased in, becoming more comprehensive over the five year permit period. Other provisions require immediate implementation upon commencement of the permit and will remain consistent over time. Some MRP provisions do not require additional action by the County until the second, third, fourth or fifth year(s) of the permit. We have provided in the attachments both the anticipated costs and the implications/challenges associated with each phase of provision implementation.  
  
HIGHLIGHTS OF MAJOR AREAS OF IMPACT TO COUNTY GOVERNMENT  
  
The MRP will affect many County operations. Some of the MRP’s proposed changes are simply “ratcheting up” of current provisions and best management practices, while other provisions will require significant revisions, and the construction of significantly different infrastructure. In addition, business practices, program definitions and areas of responsibility may need to be expanded and modified. For example, it may be necessary for the definition of public health to be expanded to include the “health” of the natural environment, thereby enabling the areas of responsibility of some departments to expand to include environmental protection.   
  
The MRP will also require a number of changes to County policies and Ordinances. These changes range from regulating property uses, such as swimming pools (construction of pools and discharges), to requiring heightened enforcement activities by the County (by requiring the County to issue citations for a wide variety of water quality infractions). In addition, the MRP requires the County to consider potential water quality impacts in prioritizing all new construction including new County offices and road maintenance projects and in operations of our storm drainage and Flood Control infrastructure.  
  
The departments anticipated to be significantly impacted by the MRP include:   
  
1. Public Works Department  
2. Contra Costa County Flood Control and Water Conservation District  
3. Department of Conservation and Development  
4. General Services Department  
5. Health Services Department  
6. County Counsel’s Office  
7. District Attorney’s Office  
8. Department of Agriculture  
9. Department of the Sheriff   
  
COMPARISON OF MRP REQUIREMENTS WITH OUR EXISTING NPDES PERMIT  
  
Our current NPDES permit has five major provisions, (for example C.2 “Municipal Operations” is one provision with several components. An example of a component is C.2a “Street Sweeping”). The MRP expands, revises and in some instances “eliminates” components in each of these five provisions and also adds nine new provisions. The key new/modified requirements include trash capture, increased scope of Provision C.3 (“New Development and Redevelopment”), developing the authority to regulate and enforce additional uses, increased monitoring and reporting, and development of TMDLs (total maximum daily loads) for targeted pollutants.   
  
The two significant components that “appear” to have been removed are street sweeping and catch basin cleaning. They are removed from the requirements of provision C.2 “Municipal Operations”, but at the same time they are effectively “required” in provisions C.10 “Trash Reduction”,C.11 “Mercury Controls”, and C.12 “Polychlorinated Biphenols (PCBs) Controls”.  
  
Street Sweeping and catch basin cleaning are two of the most effective means of removing pollutants. In fact, the Water Board’s own Finding 16 (of the MRP) concedes specific extraneous pollutants found in urban run-off, including heavy metals, dioxin and PBDE’s, are most commonly found deposited on paved and other impervious surfaces. At present the most effective way to capture these pollutants is with effective street sweeping. Our current County street sweeping program captures and removes 1632 cubic yards of material, which contains significant amounts of PCBs, Mercury, Copper, Lead, Nickel, Zinc and Petroleum Hydrocarbons in addition to almost 9,000 pounds of oil and grease! Without this highly effective practice, the pollutants would not be captured and would be released into the environment doing further damage.  
  
Similarly, catch basins capture pollutants in the catch basin before being released into the environment. Our current catch basin cleaning program removes over 100 cubic yards of material which again contains significant amounts of Copper, Lead, Zinc and almost 600 pounds of oil and grease! Without this highly effective best management practice, these pollutants would not be captured and would be released into our waterways to damage the environment.   
  
The RWQCB staff is aware of the fact that street sweeping and catch basin cleaning are two of our most successful Best Management Practices (BMPs) at removing pollutants. Even though these two provisions (street sweeping and catch basin cleaning) are no longer specifically required by the MRP, we are recommending to continue to maintain and provide these very effective and valuable services.   
  
In order to provide a better understanding of the MRP and its requirements, we have developed a spreadsheet (see Attachment B), that lays out the major permit provisions by section, identifies where each provision can be found in the permit itself, describes significant components of each provision, and compares how our old permit’s requirements relate to the requirements of the MRP. The document evaluates both the policy ramifications and the financial impacts that the MRP is anticipated to have on County government (including the Flood Control district), businesses, and residents.  
  
Three things should be noted about this spreadsheet:  
  
1) The costs reported are rough estimates and are intended to provide the scale of budget impacts or “ball park” numbers. Important assumptions are listed both throughout the document and in the “Notes” section at the bottom of the spreadsheet. Since many MRP provisions contain vague and unclear language, and others are entirely new, more accurate estimates will continue to be developed and refined as we continue to develop strategies for compliance both within the County and the FCD, and by working with the County wide Clean Water Program and the regional clean water program - the association of Bay Area Stormwater Management Agencies Association (BASMAA).   
  
2) The MRP has fifteen provisions. Only the major provision changes (ones that will have the greatest impact on our business practices) are included at this time.   
  
3) Increased County costs associated with private developments will likely be passed on to the developer/builder in the form of higher permit (pay-for-services) fees and are therefore not accounted for in this report.  
  
In addition to this spreadsheet, we have also provided a bar graph (Attachment C). The bar graph shows the relationship between annual costs for NPDES compliance activities (for our existing NPDES permit) and estimated costs (based on the MRP) for each year of the MRP permit period.  
  
Current Actions being taken to insure compliance with the MRP  
  
The PWD - County Watershed Program (CWP) will continue to work with all affected County departments and special districts (including FCD) to assist them in understanding how the MRP will affect their operations and in achieving compliance with the MRP.   
  
The CWP will continue working with the Contra Costa Clean Water Program (County wide) and BASMAA (region wide) to pool resources in an effort to more efficiently comply with some of the MRP provisions.   
  
The CWP will continue to revise and expand its normal activities to comply with the expanded and modified MRP provisions.   
  
The CWP will continue to seek opportunities to leverage its resources to meet the MRP requirements, In particular by supporting non-profit groups (for example creek groups) to help in meeting some of the provisions utilizing volunteer labor (for example trash assessments and clean-up). We will also seek out and apply for Federal or State grants that might pay for some of the implementation costs.  
  
The CWP recently acquired a part time Stormwater Inspector to help the County and the FCD meet the expanded inspection and reporting requirements of the MRP.   
  
Due to the comprehensive scope of the proposed MRP, it will only be possible to reach full compliance by addressing the challenges from many different angles, and by seeking cooperation from many different partners. The County Administrator and the Public Works Department should meet with other affected departments to identify appropriate and potential sources of revenue to fund implementation of the MRP and reduce the potential liability to the General Fund.  
  
The CWP has been working with the Contra Costa Clean Water Program by conducting preliminary activities for a ballot measure to develop additional funding for clean water purposes (pursuant to Proposition 218). These activities include conducting public education outreach and opinion polls. The Contra Costa Clean Water Program has been setting aside $300,000 per year toward the approximately $1.5 million cost associated with putting a measure on the ballot.   
  
Petition for Review of the MRP  
  
At the November 16, 2009, Transportation, Water & Infrastructure Committee meeting it was reported that on November 12, 2009, Contra Costa County joined with all the other 19 co-permittees and most of the other municipalities in the Bay Area in submitting to the State Water Resources Control Board a Petition for Review. This petition is basically an insurance policy that will help the County in two major ways:   
  
1st - The petition puts the State Board on notice that we have significant issues with the MRP and allows us to activate the petition and request a formal review and appeal of the MRP at some later date. This might be our strategy if some of the provisions of the MRP (that we have been named in the petition) turn out to be impossible or overly burdensome to implement.   
  
2nd - If a third party or agency appeals the MRP the petition will require that the State Board notify us of the appeal and will more importantly give us a “place at the table” and allow us to be involved in any discussions about revising the MRP due to the 3rd party appeal.