RES 2014-04 APPROVING PROPOSED SETTLEMENT OF 2013-18 NPDES PHASE II PERMITCITY OF BAINBRIDGE ISLAND, WASHINGTON
RESOLUTION NO. 2014 -04
A RESOLUTION approving the proposed settlement of the
remaining issues in the administrative appeal of the 2013-
2018 National Pollutant Discharge Elimination System
( NPDES) Phase 11 Permit.
WHEREAS, in October 2012, the City Council authorized the City of Bainbridge Island
to join a coalition of local governments in filing an administrative appeal of the 2013 -2018
National Pollutant Discharge Elimination System ( NPDES) Phase II Permit with the Washington
State Pollution Control Hearings Board (PCHB); and
WHEREAS, in October 2013, the PCH13 held a consolidated hearing on appeal issues
held in common by both appealing Phase I and Phase II permittees and a ruling is expected on
those issues within the month; and
WHEREAS, the PCHB scheduled a hearing on the remaining appeal issues in April
2014; and
WHEREAS, in anticipation of the next hearing, the Coalition along with Washington
State Department of Transportation and King County explored settlement opportunities with the
Washington State Department of Ecology (DOE); and
WHEREAS, DOE has agreed to either issue new guidance documents and make
modifications to the 2013 -2018 NPDES Phase II Permit language to clarify or amend definitions
at issue; and
WHEREAS, the proposed settlement includes clarifications that will: narrow the scope
and cost to permit holders; decrease the number of potential locations for water quality
violations; and limit the possibility of third -party claims for water quality violations; and
WHEREAS, the City Council finds that the proposed settlement is in the best interest of
the City of Bainbridge Island and wishes to accept the proposed settlement of the remaining
issues in the appeal of the 2013 -2018 NPDES Phase II Permit;
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON,
DOES RESOLVE AS FOLLOWS:
Section 1. The City Manager or his designee is authorized to execute a settlement of the
remaining issues in the appeal of the 2013 -2018 NPDES Phase II Permit, including changes to
definitions substantially in the form shown in Exhibit A, and incorporated by this reference.
Passed by the City Council this 12t" day of February, 2014, and signed in authentication
of its passage this 12"' day of February, 2014.
Attest:
Rosalind Lassott, City Clerk
FILED WITH THE CITY CLERK
APPROVED BY THE CITY COUNCIL
RESOLUTION NO, 2014 -04
Anne S. Blair,
February 5, 2014
February 12, 2014
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Exhibit A
Proposed Changes to Definitions for Outfall & Receiving Waters and
Addition of Discharge Point Definition
As agreed To by Phase II Coalition /Appellant and Ecology Representatives 12/9/13
With accompanying explanatory notes
A. "Outfall" means a point source as defined by 40 CFR 122.2 at the point where a
discharge leaves the permittee's MS4 and enters a receiving waterbody or receiving
waters. Outfall also includes the permittee's MS4 facilities /BMPs designed to infiltrate
stormwater.
Explanatory notes for "outfall" (to be converted into guidance):
• "a point source as defined by 40 CFR 122.2" = limits outfalls as "discernible,
confined and discrete conveyances"
• "at the point where" = further modifies "discernible, confined and discrete point;
excludes stormwater conveyances that have no outlet, such as dispersion BMPs
• "a discharge" = applies not only to stormwater but also to illicit discharges
• "leaves the permittee's MS4" = intentionally possessive to a single MS4
permittee, not a group MS4 of permittees; excludes private and unregulated public
stormwater systems for the purposes of its use in this permit. It is likely that
municipalities will want to identify private or unregulated public outfalls in order
to have a comprehensive understanding of drainage within their jurisdiction.
• "and enters a receiving waterbody or receiving waters" = see definition of
receiving waterbody and receiving waters (e.g., surface water and groundwater)
• "Outfall also includes the permittee's MS4" = intentionally possessive to a single
MS4 permittee, not a group of MS4 permittees; excludes private and unregulated
public stormwater systems for the purposes of its use in this permit. It is likely
that municipalities will want to identify private or unregulated public outfalls in
order to have a comprehensive understanding of drainage within their jurisdiction.
• "facilities /BMPs" = broad use of the term "facilities /BMPs" to accommodate a
wide range of infiltration facilities including any pre- existing facilities and retrofit
facilities; not limited to "stormwater treatment and flow control BMPs /facilities"
as defined in the permits.
• "designed to infiltrate stormwater" = limits applicable infiltration facilities /BMPs
to those that are designed to infiltrate; excludes facilities /BMPs that inadvertently
infiltrate, such as ditches and swales. For the purposes of this permit, UIC
facilities are categorically excluded; however it is likely that municipalities will
want to identify UIC facilities as a form of an outfall in order to have a
comprehensive understanding of drainage within their jurisdiction.
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• Outfall does not include [the points where] pipes, tunnels, or other constructed
conveyances which connect segments of the same receiving waters and are
primarily used to convey receiving waters (for example: stream culverts) _
excludes in- stream culverts that convey the stream under roadways; excludes the
outlets of streams that have been piped under development areas.
B. "Receiving waterbody" or "receiving waters" means naturally and /or reconstructed
naturally occurring surface water bodies, such as creeks, streams, rivers, lakes, wetlands,
estuaries, and marine waters, to which a discharge occurs via an outfall or via
sheet /dispersed flow. Receiving waters also include ground water which a discharge
occurs via facilities /BMPs designed to infiltrate stormwater.
Explanatory notes for "receiving waterbody" or "receiving waters" (to be converted into
guidance):
• A receiving water body is not defined by the type of discharge it receives. For
example, an illicit discharge of non - stormwater can occur to receiving water.
Thus, the definition does not specify what is discharged.
• It is acceptable to retain the last use of "stormwater" because it is referring to
what the facilities /BMPs were designed to do.
• This definition does not refer to MS4 either, because a receiving waterbody is not
defined by who discharges to it.
• The definition does not indicate that the discharge must be intentional (i.e., to
which a discharge is directed) because a receiving waterbody is not defined by an
intention to discharge.
C. "Discharge point" means the location where a discharge leaves the permittee's MS4 to
another permittee's MS4 or a private or public stormwater conveyance. "Discharge
point" also includes the location where a discharge leaves the permittee's MS4 and
discharges to ground, except where such discharge occurs via an outfall.
Explanatory notes for "discharge point" (to be converted into guidance):
• "the location" = avoids circular use of "point" in the term and the definition;
avoids confusion with 40 CFR 122.2 point source
• "where a discharge" = applies not only to stormwater but also to illicit discharges
• "leaves" = the use of discharge point in the permit is always referring to a
permittee's discharge from their MS4 to something else.
• "the permittee's MS4" = intentionally possessive to a single MS4 permittee, not a
group MS4 of permittees
• "to" = the use of discharge point in the permit is always referring to a permittee's
discharge from their MS4 to something else
• "another permittee's MS4" = applies to permitted regulated MS4s
•
or a private" = applies to private stormwater infrastructure
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• "or public" = applies to non- permitted and /or non - regulated publicly owned or
operated stormwater infrastructure
• "stormwater conveyance" = broadly used to indicate stormwater infrastructure
• "and discharges to ground," = the discharge need not reach groundwater to be
considered a discharge to ground
• "except where such discharge occurs via an outfall" = ties back to revised outfall
definition to prevent a situation where something is both an outfall and a
discharge point; does not limit discharge points to ground to infiltration
facilities /BMPs that are designed to infiltrate; includes facilities /BMPs that
inadvertently infiltrate, such as ditches and swales; includes stormwater
conveyances that have no outlet, such as dispersion BMPs
• The permit does not need to specify "connection point" as it uses the word
"connections" in a basic dictionary use.
M