City of Caldwell (Board decision, February 1, 2011)
In re City of Caldwell (EAB NPDES Appeal No. 09-11): permit review denied
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Plain-English summary
The City of Caldwell operated a small municipal separate storm sewer system in Idaho under an NPDES permit. Pioneer Irrigation District asked the EAB to review the permit, arguing that it should include a condition barring discharges into irrigation waterways owned or maintained by irrigation entities. The Board held that Pioneer did not show clear error, an abuse of discretion, or a policy basis for review. It also held that the permit issuer adequately addressed Pioneer's comments and that future compliance concerns did not provide a basis for permit review. The Board denied the petition.
Decision snapshot
- Cited authorities: 33 U.S.C. § 1342(p); 40 C.F.R. §§ 122.34, 124.17, 124.18(c), and 124.19(a)
- Outcome: Review of Caldwell's NPDES permit was denied.
- Key point: The EAB will not grant permit review when the petitioner identifies no clear error, policy basis, or unresolved response to significant comments.
Full text (EPA EAB public release)
F I L E D
FEB 1, 2011
Clerk, Environmental Appeals Board
INITIALS ________________________
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
)
In re: )
)
City of Caldwell ) NPDES Appeal No. 09-11
)
NPDES Permit No. IDS-028118 )
--------------------------)
ORDER DENYING REVIEW
The City of Caldwell owns and operates a small municipal separate storm sewer system
("MS4") in Canyon County, Idaho, that covers approximately twenty-one square miles of land
and serves approximately 37,000 people. The MS4 is comprised of roads, drains, catch basins,
curbs, gutters, ditches, and other structures that collect storm water runoff from rain, sleet, and
snow events and convey it to specific discharge points ("outfalls") into the waters of the United
States. The discharge of water through the MS4 outfalls is regulated under section 402(p) of the
Clean Water Act ("CWA"), 33 U.S.C. § 1342(p), and implementing regulations promulgated by
the United States Environmental Protection Agency ("EPA" or "Agency") at 40 C.F.R. part 122.
See Regulations for Revision of the Water Pollution Control Program Addressing Storm Water
Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified in scattered sections of 40 C.F.R.
pts. 9,122-124) ("Phase II" expansion of storm water program to address discharges from small
MS4s, which serve fewer than 100,000 people).
On September 4,2009, EPA Region 10 issued a National Pollutant Discharge
Elimination System ("NPDES") permit to Caldwell, pursuant to the CWA and the storm water
rules. The permit authorizes discharges of storm and certain non-storm water flows from
Caldwell's MS4 to waters of the United States, including the Boise River, Indian Creek, Mason
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Creek, Parker Gulch, and nine named drains (the Elijah, A, Solomon, Laurel, Isaiah, Dixie, West
End, Wilson, and Noble Drains).
On October 13,2009, Pioneer Irrigation District ("Pioneer") filed a timely petition with
EPA's Environmental Appeals Board ("Board") under the permit appeal rules at 40 C.F.R.
§ 124.19(a), seeking review of Caldwell's NPDES permit. Pioneer owns, operates, and/or
maintains a network of irrigation ditches and canals in Canyon County, and it is concerned that
Caldwell's new permit will shift many of the burdens and liabilities of managing storm water
from the municipal government to Pioneer. Accordingly, in its petition, Pioneer challenges
several aspects of the Region's permit decision and asks the Board to vacate Caldwell's permit
and remand it to the Region for further consideration.
I. Issues on Appeal
The Board must determine whether, under 40 C.F.R. § 124.19(a), Pioneer established any
basis for a grant of review of the Region's NPDES permit decision. Specifically, the Board must
decide whether Pioneer established that: (l) the Region clearly erred or exercised its discretion in
excluding a proposed permit condition in such a way as to warrant permit review; or (2) the
Board for policy reasons should exercise its own discretion to grant review of the Region's
decision to exclude the condition.
II. Summary of Decision
The Board holds that Pioneer did not establish that the Region clearly erred or exercised
its discretion in excluding the proposed condition in such a way as to warrant permit review.
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Furthermore, the Board holds that Pioneer did not establish a policy basis upon which to justify a
discretionary grant of review of the Region's permit decision. Accordingly, the Board denies
review of Caldwell's NPDES permit.
III. Procedural History
In January 2003, the Region notified the City of Caldwell that it qualified as a "regulated
small MS4" under EPA's storm water regulations and therefore would be required to apply for an
individual NPDES permit for its MS4 discharges into the waters of the United States. Letter
from Robert Robichaud, NPDES Permits Unit Manager, EPA Region 10, to Gordon Law, City
Engineer, City of Caldwell 1-2 (Jan. 17,2003) (A.R. A-I). The Region instructed Caldwell that
the terms of any forthcoming permit must be consistent with section 122.34 of the storm water
rules, which directs applicants to develop, implement, and enforce a storm water management
program with three specific goals. Those goals are: (1) to reduce the discharge of pollutants from
the MS4 "to the maximum extent practicable"; (2) to protect water quality; and (3) to satisfy
appropriate CWA water quality requirements. 40 C.F.R. § 122.34(a); see CWA
§ 402(p)(3)(B)(iii), 33 U.S.C. § 1342(p)(3)(B)(iii). The Region also advised that Caldwell's
storm water management program would be required to address six "minimum control measures"
set forth in the regulations. Letter from Robert Robichaud at 1; see 40 C.F.R. § 122.34(b)(1)-(6).
One of those measures is post-construction storm water management in new development and
redevelopment. See 40 C.F.R. § 122.34(b)(5).
Caldwell submitted its permit application on February 20,2003, along with a Storm
Water Management Plan ("SWMP") prepared in accordance with 40 C.F.R. § 122.34(a). On
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July 11,2008, the Region issued a draft NPDES permit proposing to authorize Caldwell's MS4
discharges, along with a fact sheet inviting public comment on the proposals. See EPA
Region 10, Fact Sheet/or Draft NPDES Permit, City of Caldwell MS4, NPDES Permit No. IDS-
028118 (July 11,2008) (A.R. E-3) [hereinafter Fact Sheet]. On August 13-14,2008, the Region
held public hearings on the draft permit, and it closed the public comment period on
November 18, 2008. Pioneer submitted timely comments on the draft permit on October 20,
- See Letter from Scott L. Campbell, Esq., Moffatt, Thomas, Barrett, Rock & Fields, Chtd.,
to Misha Vakoc, NPDES Permits Unit Manager, EPA Region 10 (Oct. 20, 2008) (A.R. G-9)
[hereinafter Pioneer Cmts]. After reviewing Pioneer's and other comments received during the
public review period, the Region issued a final NPDES permit, along with a response-to-
comments document, on September 4,2009. See EPA Region 10, Final NPDES Permit/or City
of Caldwell MS4, NPDES Permit No. IDS-028118 (Sept. 4, 2009) (A.R. H-5) [hereinafter
Permit]; EPA Region 10, Response to Comments on Proposed NPDES Permitfor City 0/
Caldwell MS4 (Sept. 2009) (A.R. H-2) [hereinafter RTC].
As noted above, Pioneer filed a petition for review of Caldwell's permit on October 13,
- See Pioneer Irrigation District, Petition for Review ("Pet'n"). At the Board's request, the
Region filed a response to Pioneer's petition on November 30,2009. See EPA Region 10,
Response Brief ("R10 Resp."). That same day, Caldwell filed a motion to intervene as a party
respondent and for leave to file a response to Pioneer's petition - which the Board hereby grants
- along with its response to the petition for review. See City of Caldwell, Provisional Response
to PID's Petition for Review.
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IV. Factual History
A. City of Caldwell's Storm Water-Related Guidance
In its February 2003 permit application, Caldwell submitted its SWMP with a section
entitled "Post-Construction Storm Water Management in New Development and
Redevelopment." See City of Caldwell, Idaho, Phase II Storm Water Permit Application IS-17
(Feb. 20, 2003) (A.R. A-2) [hereinafter Permit App.]. This section discussed "baseline" storm
water controls already in place within Caldwell's MS4 service area, along with additional "best
management practices," or "BMPs," proposed to ensure area-wide compliance with the minimum
control measures in 40 C.F.R. § 122.34(b)(S). The "baseline" controls included various
measures set forth in Caldwell's existing storm drainage, landscaping, and subdivision
ordinances, as well as detailed requirements for the design and operation of storm water
conveyance systems, detention/retention facilities, infiltration/percolation facilities, and related
matters, as prescribed in Caldwell's December 1998 "Stormwater Management Interim Policy."
Permit App. at IS-16.
The post-construction section of the SWMP specified, as a baseline practice, that
"[dJevelopments proposing to discharge to a ditch, drain, or pond under the jurisdiction of
another entity are subject to the review and approval of the entity operating or maintaining the
ditch, drain, or pond." !d. at 16 (emphasis added).
In September 2006, Caldwell issued a revised storm water management document,
entitled the "Caldwell Municipal Stormwater Management Manual." See City of Caldwell
Engineering Department, Caldwell Municipal Stormwater Management Manual (Sept. 2006)
[hereinafter Manual]. The new Manual did not include the explicit third-party review-and-
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approval requirement articulated in the SWMP (quoted above). Instead, the new Manual
contained the following provision:
Any development proposing new or increased discharge off-site, in
compliance with this manual, shall notify in writing the owner of
the canal, ditch, drain, or pond into which discharge shall occur. In
addition, the design of new discharging facilities shall be subject to
the review of the entity operating or maintaining the canal, ditch,
drain, or pond. Any development proposing to increase the rate or
reduce the quality of discharge from a site may be denied
permission to discharge.
Manual § 101.1.5, at 12.
B. Pioneer's Comments on the Permit
In comments on the draft permit, Pioneer claimed that the 2006 storm water provision
allowed residential developers to discharge municipal storm water from their properties into
natural or manmade drainage ways "simply by giving notice" to the owner or operator of the
facility, or, in some circumstances, without giving any notice at all. Pioneer Cmts at 4. Further,
Pioneer claimed, since Caldwell's promulgation of the new provision, developers had installed
multiple points of municipal storm water discharge into Pioneer's irrigation and drainage
facilities without Pioneer's permission. See id. at 5.
Pioneer opposed construction of these discharge points, contending that they violate its
legal rights-of-way in the ditches, drains, and canals it owns, operates, and/or maintains within
Caldwell's MS4 service area, adversely affect water quality, and threaten the physical integrity of
the manmade waterways. Id. at 2-4. Pioneer explained that many of its facilities were
constructed more than a century ago for delivery of seasonal irrigation and agricultural return
flows. Year-round MS4 drainage exceeds the design capacity of the facilities, Pioneer stated,
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and prevents Pioneer from performing routine off-season facility maintenance. Id. at 5. The
consequent increased risk of property damage and danger to human and aquatic life from
flooding and water quality impairment are liabilities and burdens that, in Pioneer's view, the
permit impermissibly shifts from Caldwell to Pioneer. See id. at 3-7.
Furthermore, Pioneer noted that its facilities have long qualified for an exclusion from
NPDES requirements under CWA section 402(1)(1), which prohibits EPA from requiring
NPDES permits for discharges composed entirely of return flows from irrigated agriculture. Id.;
see CWA § 402(1)(1), 33 U.S.C. § 1342(1)(1); 40 C.F.R. § 122.3(t). Pioneer fears losing this
exclusion if large quantities of MS4 water from new developments and redevelopments are
discharged into, and commingle with, the agricultural return flows in its ditches and canals, thus
nullifying the exclusion. Pioneer Cmts at 5, 7.
For these reasons and others, Pioneer urged the Region to add the following condition to
Caldwell's permit to ensure protection of its rights-of-way and prevention of storm water burden-
shifting from Caldwell to Pioneer:
No discharges are authorized by this Permit to constructed
waterways, owned, operated, or maintained by irrigation entities.
Id. at 3 (emphasis added).
C. The Region's Response to Pioneer's Comments
In its response to comments, the Region declined to add Pioneer's proposed condition,
explaining the following:
The issue appears to be [Pioneer's] concern over whether this
Permit allows Caldwell to obtain some jurisdiction over
[Pioneer's] irrigation canals or other such facilities through the
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issuance of the Permit. EPA understands that there is ongoing
litigation between [Pioneer] and Caldwell that concerns this exact
issue. Section VLH of the Permit makes it clear that the Permit
does not convey this type of property right or jurisdiction. * * *
[Accordingly,] EPA declines to add [Pioneer's] suggested
language.
RTC cmt. 73, at 30-31; see Permit § VLH, at 26-27 ("The issuance of this permit does not
convey any property rights of any sort, or any exclusive privileges, nor does it authorize any
injury to persons or property or invasion of other private rights, nor any infringement of state or
local laws or regulations.").
Moreover, in response to Pioneer's fears about the integrity of its old waterways under an
onslaught of new MS4 water, the Region wrote:
EPA understands [Pioneer's] concerns regarding excess discharges
into the irrigation canals and other [Pioneer] facilities. However,
all municipal storm water permits require the permittee to
implement a storm water management program []. The [storm
water management program] is the heart of the MS4 permit and it
requires the permittees to implement [best management practices]
that will reduce pollutants in the storm water to the maximum
extent practicable. EPA does not have the authority to eliminate
the [storm water management program] from the Permit. See
40 C.F.R. §§ 122.26, .34.
RTC cmt. 75, at 31. The Region then referred Pioneer to its response explaining that the permit
disclaimed any conveyance of property or jurisdictional rights of any kind. Id.
Finally, in responding to Pioneer's claim that Caldwell's permit jeopardizes Pioneer's
agricultural exemption, the Region wrote:
Irrigation/agricultural return flows are excluded from regulation
under the NPDES program. See 40 C.F.R. § 122.3(f). * * *
Irrigation return flows are exempt from storm water permit
coverage and the commingling of irrigation return flow and storm
water does not automatically revoke the exempt status of the
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irrigation return flow. See 55 Fed. Reg. 47,990, 47,996 (Nov. 16,
1990). * * * [I]fthe MS4 discharges into [Pioneer's] irrigation
facilities are [authorized by an NPDES permit], then the irrigation
return flow exemption would remain. It should be noted, however,
that if the MS4 discharge or other NPDES regulated discharge is
unpermitted when it enters [Pioneer's] facilities, then [Pioneer]
may need to be authorized to discharge under a[n] NPDES permit.
Therefore, if there are NPDES regulated point source discharges
into [Pioneer's] facilities, it would be in [Pioneer's] best interest to
ensure that those point source discharges are permitted through an
appropriate NPDES permit such as Caldwell MS4 Permit at issue
here.
RTC cmt. 76, at 32; accord id. cmt. 83, at 35.
v. Analysis
Under the 40 C.F.R. part 124 permitting regulations, the Board will not grant review of
decisions related to an NPDES permit unless the decisions are based on clearly erroneous
findings of fact or conclusions of law, or involve important matters of policy or exercises of
discretion that warrant Board review. 40 C.F.R. § 124.19(a). The Board wields its power of
permit review "sparingly," in keeping with Agency policy that most permit conditions be finally
determined at the permit issuer's level. 45 Fed. Reg. at 33,412; accord In re City o/Moscow,
10 E.A.D. 135, 141 (EAB 2001). Importantly, the petitioner - and not the permit issuer or the
permittee - bears the burden of demonstrating that review is warranted. 40 C.F.R. § 124.19(a);
see, e.g., In re Dominion Energy Brayton Point Station, LLC, 12 E.A.D. 490, 588-90 (EAB
2006) (remanding NPDES permit where petitioner established that permit issuer failed to
adequately explain the maximum number of allowable monthly water temperature exceedances).
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A. The Storm Water Permitting Regulations Do Not Require Inclusion of the Condition Pioneer Seeks
The storm water regulations applicable in this MS4 case require Caldwell to develop,
implement, and enforce a specific kind of storm water management program; namely, one that is
"designed to reduce the discharge of pollutants from [the] MS4 to the maximum extent
practicable (MEP}." 40 C.P.R. § 122.34(a) (emphasis added). Such a program is required to
address six minimum control measures, including: (1) public education and outreach on storm
water impacts; (2) public involvement/participation; (3) illicit discharge detection and
elimination; (4) construction site storm water runoff control; (5) post-construction storm water
management in new development and redevelopment; and (6) pollution prevention/good
housekeeping for municipal operations. Id. § 122.34(b)(1)-(6). Best management practices
generally comprise, in EPA's view, the most appropriate form ofMEP limitation on pollutant
discharges from small MS4s. Id. § 122.34(a). Accordingly, the regulations direct small MS4
operators to identify the BMPs that will be implemented for each of the six minimum control
measures, to describe measurable goals for each of the BMPs, and to evaluate, through
recordkeeping and reporting, their compliance status and progress toward achieving their goals.
Id. § 122.34(d)(1), (g).
The storm water regulations also set forth a number of standard conditions that must be
incorporated into all MS4 permits. These conditions include, among other things, duties to
comply with all conditions of the permit, to mitigate any discharge that has a reasonable
likelihood of adversely affecting human health or the environment, to properly operate and
maintain all facilities and treatment systems at all times, and to provide information to the permit
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Issuer. See id. § 122.41. These standard conditions also include one that specifically provides
that the permit "does not convey any property rights of any sort, or any exclusive privilege." Id.
§ 122.41(g).
The Region applied all of these regulatory criteria in its review and approval of
Caldwell's permit. See, e.g., Fact Sheet § VI, at 10-27; Permit §§ II-VI, at 5-27. Notably, none
of the regulatory provisions directed the Region to include in Caldwell's permit the condition
sought by Pioneer. Moreover, Pioneer has not identified any specific statutory or regulatory
authority that requires the inclusion of such a condition. The Board concludes that no legal
requirement for the requested condition exists and therefore holds that the Region did not err in
excluding it. As outlined in the next section, the Board holds further that the Region adequately
responded to the concerns Pioneer raised in its comments.
B. The Region Adequately Responded to Pioneer's Comments
Under the Agency's permitting rules, permit issuers are required to "[b]riefly describe and
respond to all significant comments on the draft permit." 40 C.F.R. § 124. 17(a)(2). A failure to
adequately respond can provide grounds for a permit remand. E.g., In re Amerada Hess Corp.,
12 E.A.D. 1, 14-20 (EAB 2005) (remanding Clean Air Act permit where permit issuer failed to
respond to significant comments on stack test studies, nickel emissions levels, and opacity); In re
Wash. Aqueduct Water Supply Sys., 11 E.A.D. 565, 589-90 (EAB 2004) (remanding NPDES
permit where permit issuer failed to respond, adequately or in some cases at all, to significant
comments on data representativeness and the facility's reasonable potential to cause exceedances
of water quality standards).
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As noted above, during the comment period, Pioneer raised its allegation that private
developers were constructing discharge points into Pioneer's facilities without its permission,
contrary to the third-party review-and-approval provision in the SWMP, and it asked the Region
to insert specific permit language to remedy this alleged problem. Pioneer Cmts at 4. In
comments Caldwell sent after Pioneer's own comment submittals, Caldwell urged the Region to
reject Pioneer's request for a permit condition prohibiting discharges to irrigation waterways.
RTC cmt. 81, at 34. Caldwell asserted that its "right and ability to discharge stormwater flows
into canals and drains also used by Pioneer arises from other sources and authorities and cannot
be abrogated or affected by EPA in this Permit." Id.
The Region responded to both sets of comments by acknowledging that Caldwell and
Pioneer were in litigation concerning this issue! and asserting that "EPA does not have the
authority to prohibit discharges into 'constructed waterways owned, operated, or maintained by
irrigation entities,'" as Pioneer had asked. Id. Furthermore, "EPA feels this matter should be
resolved between Caldwell and Pioneer Irrigation District." Id. The Region ultimately did not
add Pioneer's proposed condition to the permit, explaining that section VI.H of the permit
explicitly disclaims the conveyance to Caldwell, by means of the permit's issuance, of any
property rights, privileges, or jurisdiction in or over Pioneer's facilities. Id. cmt. 73, at 30-31.
As noted above, Pioneer also raised concerns about the effect of increased MS4
discharges on the integrity of its old waterways. The Region met Pioneer's concerns in this
! In addition to filing the present permit appeal, Pioneer is also proceeding on a parallel
track in another forum. In early 2008, Pioneer filed a lawsuit against Caldwell in state court to litigate its property claims under Idaho law. That case is still pending on the state court's docket. See Pioneer Irrigation Dist. v. City of Caldwell, Case No. CV-2008-0000556-C (Idaho 3d Jud. Dist. filed Jan. 16, 2008) (Culet, 1., presiding).
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regard by resting squarely on the storm water regulations and their required six controls,
including post-construction discharge controls, to protect against flooding, water quality
impairment, and other possible storm water-related ills. See RTC cmt. 75, at 31 (citing 40 C.F.R.
§§ 122.26, .34). Moreover, the Region referenced permit provisions it thought would at least
partially alleviate Pioneer's concerns. For example, the permit contains a provision that prohibits
discharges of storm water that will cause, have the reasonable potential to cause, or contribute to
an exceedance of an Idaho water quality standard. See Permit § I.C.2, at 5; RTC cmt. 17, at 10.
When Pioneer expressed concerns about water quality impairment, the Region responded by
referencing this provision and explaining that "[o]nce the Permit is issued, if the permittee's
discharges into waters of the [United States] contribute to an in-stream excursion above an Idaho
water quality standard, then the permittee would be in violation of the Permit." RTC cmt. 74,
at 31. The Region also stated that, under the permit's "duty to comply" provision, Caldwell's
failure to implement any condition of its NPDES permit, including post-construction storm water
management requirements for new development and redevelopment, would constitute a permit
violation and could subject Caldwell to EPA enforcement. RTC cmt. 79, at 33; see Permit
§ V.A, at 21 ("[a]ny permit noncompliance constitutes a violation of the [CWA] and is grounds
for enforcement action").
The Board holds, based on the record described above, that the Region adequately
responded to Pioneer's comments.
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C. Caldwell's Future Compliance or Noncompliance with Its MS4 Permit, and Pioneer's Permit Exclusion Status, Do Not Provide Bases for Review
While, as just discussed, Pioneer's petition focuses in several ways on the omission of
specific language from Caldwell's MS4 permit, lurking beneath the articulated claims are
questions about Caldwell's future compliance with its obligation to manage storm water
discharges from new development and redevelopment in the MS4 permit area, and concerns that
Caldwell's practices may result in loss of Pioneer's NPDES permitting exclusion. Pioneer
writes:
The Permit condition Pioneer has requested addresses more than
just infringement upon jurisdiction or property rights; it addresses
the issue of the City's responsibility under the [CWA] and the
attendant CWA liabilities for Pioneer should the City fail to meet
that responsibility. Therefore, the Permit must prohibit discharges
to irrigation waterways without the entity's permission as the
Application provided; otherwise, Pioneer's water quality will be
inexorably tied to the City's [storm water management program]
and not Pioneer's own efforts to safeguard water quality in its
facilities. Should the City's [storm water management program]
fail to meet the requirements of the recently issued Permit, such a
failure will unavoidably impact and expose Pioneer to water
quality issues and liabilities it was not exposed to before the City
implemented the [storm water management program] during the
NPDES permitting process.
Pet'n at 10. Pioneer's arguments are speculative and do not call into question the permit's terms.
The terms of the permit provide for enforcement mechanisms should illegal discharges
occur. See Permit § V.A, at 21 ("[a]ny permit noncompliance constitutes a violation of the Act
and is grounds for enforcement action, for permit termination, revocation and reissuance, or
modification, or for denial of a permit renewal application"); Permit § V.B, at 21-23 (describing
administrative, civil, and criminal penalties for violations of permit conditions). A permit appeal
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is not a forum to entertain speculations about future permit violations and enforcement. See, e.g.,
In re Russell City Energy Ctr., LLC, PSD Appeal Nos. 10-01 to -05, slip op. at 113 (EAB
Nov. 18,2010), 15 E.A.D. _ ("fear of lax enforcement by the permit issuer is not grounds for
review of the permit") (citing cases), appeal docketed sub nom. Chabot-Las Positas Cmty. Coli.
Dist. v. EPA, No. 10-73870 (9th Cir. Dec. 20, 2010).
D. Pioneer Has Failed to Establish Any Misrepresentation by Caldwell with Respect to Storm
Water Management
a. Pioneer's Supplemental Documents Supporting Its Misrepresentation Claims
Are Not Accepted
On September 8, 2009, several months after conducting depositions in the Idaho state
court case (mentioned in note 1, supra) but before Pioneer received notice that the Region had
issued Caldwell's final NPDES permit, Pioneer mailed a letter and a portion of a deposition
transcript to the Region, asking that those materials be considered in support of its request for the
protective permit condition discussed above. The Region had issued the final permit on
September 4,2009, a few days prior to Pioneer's September 8th mailing. In that final permit,
which Pioneer received on September 9, 2009, the Region declined to add Pioneer's requested
permit condition.
Pioneer now submits the transcript and letter to the Board as Petition Exhibits D and E,
seeking to use them to prove that Caldwell misrepresented the post-construction discharge
protocols in a way that warrants a permit remand. According to Pioneer, these exhibits establish
that Caldwell knew developers were not always notifying and receiving the approval of Pioneer
prior to constructing storm water discharge outfalls into Pioneer's waterways, contrary to the
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third-party review-and-approval protocol set forth in Caldwell's SWMP. Pet'n at 3-4,8-9. The
Region moves to strike the two exhibits on the ground that the administrative record is closed at
the time of permit issuance and that, absent exceptional circumstances, documents submitted
subsequent to that time cannot be considered part of the administrative record. R10 Resp. at 7-9
(citing cases).
The Board agrees with the Region arid declines to supplement the administrative record
with the two postdecisional documents. The permit rules provide that "[t]he record shall be
complete on the date of final permit issuance." 40 C.F.R. § 124.18(c); see Russell City, slip op.
at 46-52, 15 E.A.D. at _ . Board cases interpreting this provision have established the "critical
cutoff' as final permit issuance; once that occurs, the record is officially closed. E.g., Russell
City, slip op. at 115 n.1 06, 15 E.A.D. at _ ("it is not appropriate to supplement the
administrative record with documents the permit issuer did not consider in making its permitting
decision"); In re Dominion Energy Brayton Point Station, LLC, 12 E.A.D. 490, 518-19 (EAB
2006). Were it otherwise and the administrative record either left open or easily supplemented,
permitting processes would potentially never come to an end. See In re BP Cherry Point,
12 E.A.D. 209, 219-20 (EAB 2005) (describing importance of consistent procedural rules in
ensuring efficiency, predictability, and finality of permitting processes).
Accordingly, the Board declines to order the Region to reopen the administrative record
to include Pioneer's Exhibits D and E. These exhibits are hereby treated as outside the record in
this permit appeal. See, e.g., Dominion, 12 E.A.D. at 518-19 (documents submitted subsequent
to permit issuance cannot be considered); BP Cherry Point, 12 E.A.D. at 219-20.
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b. Pioneer Provided No Evidence That the Region Relied on Caldwell's Purported
Misrepresentations in Preparing the Permit Conditions
In the fact sheet accompanying the draft permit, the Region stated the following with
respect to post-construction storm water discharges from private development and
redevelopment:
In [the SWMP portion of] its [2003] permit application, Caldwell
describes its storm water management policy[,] which addresses
flow controls, water quality protection and erosion and
sedimentation control for residential development; on-site
detention is required for new industrial and commercial
developments. The Caldwell Municipal Stormwater Management
Manual, dated September 2006, describes these requirements in
detail. The Landscape and Subdivision Ordinances of the Caldwell
City Code (CCC) address post-construction storm water
management requirements.
Fact Sheet § VI.D.5, at 22. This leaves no doubt that the Region knew about and considered
Caldwell's 2006 Manual while preparing Caldwell's draft permit. The Board concludes from
this passage that the Region was aware of, and familiar with, the contents of both the 2003
SWMP and the 2006 Manual.
After it received public comments on the draft permit, the Region was certainly well
aware of the dispute between Pioneer and Caldwell over MS4 discharges into Pioneer's facilities.
In its comments, Pioneer submitted for the Region's consideration a lengthy list ofldaho laws
that govern irrigation district activities, duties, and rights-of-way in canals and ditches. Pioneer
then urged the Region to include specific language in Caldwell's permit to prohibit MS4
discharges into irrigation districts', manmade facilities. Pioneer Cmts at 2-3. Pioneer also
asserted that Caldwell was allowing private developers to discharge MS4 water into irrigation
facilities simply by notifying Pioneer or, in some cases, without any notification at all. Id. at 4.
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Notably, the Region made no objection to Caldwell's implementation of the SWMP in its
response-to-comments document. Instead, it left property and jurisdictional issues to the parties
to be resolved between them as necessary. RTC cmts. 73, 81, at 30-31,34.
The Board finds that Pioneer has not provided evidence that the Region based any
particular permit term or condition on, or omitted any particular permit term or condition because
of, misrepresentations by Caldwell. Thus, the Board finds no basis for review.
VI. Conclusion
In conclusion, the Board holds that Pioneer has failed to identify clear error or other
grounds for a grant of review of Caldwell's NPDES permit.
VII. Order
For the foregoing reasons, the Board denies Pioneer's petition for review, denoted
NPDES Appeal No. 09-11.
So ordered.
ENVIRONMENTAL APPEALS BOARD2
By: [signature]
Charles J. Sheehan
Environmental Appeals Judge
2 The three-member panel deciding this matter is comprised of Environmental Appeals
Judges Charles J. Sheehan, Kathie A. Stein, and Anna L. Wolgast. See 40 C.F.R. § 1.25(e)(1).
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Page 19
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Order Denying Review in the matter of City
of Caldwell, NPDES Appeal No. 09-11, were sent to the following persons in the manner indicated:
By First Class U.S. Mail, Return Receipt Requested:
Scott L. Campbell, Bradley J. Williams, Tara Martens, and Matthew J. McGee, Esqs. Moffatt, Thomas, Barrett, Rock & Fields, Chartered 101 South Capitol Boulevard, 10th Floor Post Office Box 829 Boise, Idaho 83701-0829 telephone: (208) 345-2000 facsimile: (208) 385-5384
Murray D. Feldman, Esq. Andrew A. Irvine, Esq. Holland & Hart LLP Holland & Hart LLP Post Office Box 2527 Post Office Box 68 Boise, Idaho 83701-2527 Jackson, Wyoming 83001-0068 telephone: (208) 342-5000 telephone: (307) 739-9741 facsimile: (208) 343-8869 facsimile: (307) 739-9744
By EPA Pouch Mail:
Courtney Weber, Assistant Regional Counsel
U.S. Environmental Protection Agency, Region 10
1200 Sixth Avenue, Suite 900
Mail Code ORC-158
Seattle, Washington 98101
telephone: (206) 553-1477
facsimile: (206) 553-0163
Date: FEB - 1 201f
Annette Duncan
Secretary
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