Jeremy N. Jungreis
Rutan & Tucker, LLP
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626
(714) 338-1882 (direct)
jjungreis@rutan.com
www.rutan.com
RUTAN
The conditional waivers are essentially general permits, an alternative to the issuance
of the full blown waste discharge requirements (WDR). Here, the Regional Board has
expanded the types of activities required to file a Notice of Intent (NOI) and submit to
the Regional Board’s jurisdiction—nominally to prevent “wastes” from being discharged
through the listed activities to groundwater. There are a long list of covered activities
that now require filing of an NOI, some of which are ridiculous (anyone that waters their
grass is now apparently a discharger per one of the listed “low threat” discharges), but
below are a couple of waiver provisions that are most likely to impact municipal clients
in the region.

Graywater Discharges: Some cities are regulating graywater systems that allow
people to reuse water within their home or business that is generated on
site. These discharges are now required to remain on the property and comply
with either the Uniform Plumbing Code or an individual city’s ordinances for
graywater systems. Thus, if your city is permitting graywater systems, this
permit may affect them as to their code enforcement efforts and adequacy of the
ordinance at preventing environmental harms.

Discharges of Recycled Water to Land: This appears to be a bit of a relaxation
of the current requirement to conduct an extensive evaluation before
undertaking a recycled water project. This conditional waiver, which requires
filing of a fairly simple NOI, should be supported as it will make it easier for
construction projects to utilize recycled water on site, and shortens the
timeframe for getting projects of less than one year, or which utilize nonpermanent conveyance systems, permitted.

Low Threat Discharges: there are now requirements for filing of an NOI for
construction dewatering, swimming pool drainage, air conditioning condensate,
construction and pumping of test wells; irrigation water for landscape irrigation
that results in runoff (no NOI apparently required for this one), and stormwater
related infiltration associated with implementation of low impact development
mandates. There are many others listed as well.
o Of these, two stood out as being potentially problematic:
1) The requirement that stormwater structural BMPs file an NOI and then
demonstrate that the infiltrated water will meet all water quality objectives
should it go to groundwater. This is a problem because infiltration into
the ground is generally MANDATED by the LID requirements of the MS4
Permit for New or Modified developments. If you are required to infiltrate
as part of meeting the LID requirements for new construction, which the
Cities must generally enforce, then how can you then mandate a showing
that the water infiltrated doesn’t contain pollutants exceeding water
quality objectives? Taking this conditional waiver, combined with the
mandates for LID in the Regional MS4 Permit to their logical conclusion,
you would basically wind up in a situation where there would be no way
to comply for new construction or stormwater retrofits. If you don’t do
LID, you are out of compliance. If you do LID and put stormwater
(generally containing pollutants in an urban environment) in the ground,
then you are still out of compliance. You can’t show, necessarily, that the
water infiltrated actually meets water quality standards. Clear as mud,
right? That’s the point, the Regional Board needs to clarify that
compliance with the MS4 Permit retention/infiltration requirements
obviates the need for obtaining a conditional waiver—no matter what.
2) The requirement to obtain a waiver for discharges of test pumping of
potable wells to land. Problem for municipal dischargers is that there
may be constituents in the water like MTBE or salinity that are above the
water quality objectives (and are generally removed via treatment at
the
treatment plant). Municipal dischargers should ensure that
normal flushing of wells is not going to require obtaining a separate WDR
because of legacy contaminants and naturally existing high salinity.