City of San Diego's Settlement Over Alleged MS4 Permit Violations Results in Crackdown on Out-Of-Compliance Projects

by Allen Matkins

On August 13, 2014, the San Diego Regional Water Quality Control Board approved a two-part settlement with the City of San Diego for violations of the City's Municipal Separate Storm Sewer System ("MS4") permits. Most of the publicity surrounding the settlement has focused on the nearly $1 million in penalties imposed on the City and the enhanced storm water prevention measures to be implemented at six public projects. But it is the second part of the settlement—the Time Schedule Order, which may catch many private projects and facilities by surprise.

During the settlement negotiations, the City identified 142 private projects that had been approved by the City but that, the City contends, now have missing or ineffective storm water treatment control best management practices ("BMPs"), including certain apartments and condominiums, industrial facilities, business parks, restaurants, hospitals and medical offices, colleges, and even private residences. As part of the settlement with the Regional Water Board, the City agreed to bring these sites into compliance--quickly. Specifically, the City agreed: 

  • By September 15, 2014, to begin implementing a Compliance and Reporting Plan that describes the City's process for bringing all 150 private and public projects with missing and ineffective BMPs into compliance with MS4 permit requirements. 
  • By November 1, 2014, to complete issuance of Civil Penalty Notices to all private noncompliant projects. 
  • By August 15, 2016, to achieve compliance at all private and public projects identified as noncompliant.

Those development projects identified by the City as out-of-compliance should anticipate being contacted by the City very soon, and may wish to take any necessary corrective action before a Civil Penalty Notice is issued.

The 2010 Notice of Violation and the Full Settlement Agreement

The Notice of Violation which led to the settlement agreement was originally issued on October 1, 2010, by the Regional Water Board to the City for failing to implement the City's Standard Urban Stormwater Mitigation Plan ("SUSMP") program as required under its MS4 permits, failing to enforce the Maximum Extent Practicable ("MEP") standard for storm water treatment, and failing to verify correct installation of BMPs at projects throughout the City's jurisdiction. Over the course of its discussions with the Regional Water Board, the City identified a total of 319 private and public development sites throughout the county, out of a total of 777 public and private projects in its inventory, at which the City believed storm water treatment control BMPs were either missing or ineffective. The City concluded that these deficiencies were the result of deficiencies within the City's SUSMP program. As of March 2014, the City listed 142 private projects and 8 public projects that required additional time to achieve compliance with MS4 permit requirements.

The violations alleged in the Notice of Violation subjected the City to potential civil liability assessments of $10,000 per day of violation, but subsequent discussions resulted in a settlement aimed at bringing the City's SUSMP program, as well as private and public projects, into compliance with MS4 permit requirements. To resolve the alleged violations without formal enforcement proceedings, the City agreed in the first part of the two-part settlement to a civil penalty in the amount of $949,634. About one-half of the total, or $492,734, is due now, with the other half, $456,900, allocated to an Enhanced Compliance Action. The Enhanced Compliance Action requires the City to mitigate water quality impacts and enhance water quality treatment at six City-owned facilities by retrofitting existing storm water treatment control BMPs to more effective BMPs than would normally be required, and by building a new BMP feature, all at a cost of about $1,454,120. Upon completion of the Enhanced Compliance Action, the allocated portion of the civil penalty will be dismissed, but if the City fails to fully implement the Enhanced Compliance Action by August 15, 2016, the full penalty must be paid. As noted above, part two of the settlement involves a time schedule for bringing other projects into compliance.

Increased Inspections Are Likely

Existing development projects within the City's jurisdiction should expect greater scrutiny into the existence and effectiveness of each project's storm water treatment controls. The action by the Regional Water Board should also serve as a wakeup call to other jurisdictions operating under MS4 permits, and to development projects within those jurisdictions, that the strict storm water treatment requirements under the regional MS4 permit are not to be taken lightly.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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