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Mr. Thane W. Tienson <br /> June 18, 1999 <br /> Page 5 <br /> • Reduce the discharge of pollutants in storm water from the municipal separate <br /> storm sewer system to the maximum extent practicable. <br /> • Effectively prohibit the discharge of certain non -storm water discharges into the <br /> municipal separate storm sewer system. <br /> With regard to these two permit conditions, DEQ concluded that the permittees shall be <br /> deemed "in compliance...by implementing the SWMP for the MS4s within the co- permittees' <br /> jurisdiction." This compliance requirement is consistent with the direction provided by Congress <br /> in Section 402(p)(3) of the Clean Water Act for permitting municipal storm sewer discharges. <br /> Since its receipt of this MS4 permit, USA has implemented its SWMP and the various best <br /> management practices required by the plan. Further, USA and its co- permittees prepare and <br /> submit to DEQ an annual Storm Water Report that documents compliance with the SWMP. This <br /> demonstration of compliance with the first two compliance provisions of the MS4 permit clearly <br /> meets the requirement of Section 402(p)(4) of the Act to provide for "compliance" as <br /> expeditiously as possible. <br /> The MS4 permit also directs the co- permittees to "maintain compliance with the storm <br /> water components of the TMDL schedule to be deemed in compliance with...the storm water <br /> permit." The "TMDL Schedule" referenced in the MS4 permit is the Tualatin Sub -Basin <br /> Non -Point Source Management Implementation Compliance Schedule and Order that was <br /> initially approved by the Oregon Environmental Quality Commission (EQC) on July 23, 1993. <br /> The TMDL Schedule has been revised and extended by the EQC several times since <br /> 1993. The current version of the TMDL Schedule was approved by the EQC on June 11, 1998 <br /> and contains six tasks relating to ongoing monitoring of the Tualatin River Basin, <br /> implementation of best management practices, annual reporting to DEQ and an obligation to <br /> continue the existing programs for compliance with the Tualatin River TMDL. By its terms, the <br /> current TMDL Schedule "will be in effect until the completion of the activities in the schedule <br /> which will result in an updated basin plan and implementation strategy, but will not extend <br /> beyond the end of May 2000." <br /> Since USA and its co- permittees are currently meeting all of the effluent controls and <br /> limitations established by the MS4 permit, USA cannot be found in violation of either the federal <br /> Clean Water Act or applicable Oregon law. If your clients believe the MS4 permit issued to <br /> USA and its co- permittees is unlawful, your proper recourse is to challenge the permit at the time <br /> it is issued to the permittees. Similarly, any legal questions relating to the legal validity of the <br /> TMDL Schedule should be raised in an appeal of the EQC decision approving the TMDL <br /> Schedule itself and not in a lawsuit challenging an MS4 permit that was issued almost four years <br /> ago. <br /> The 60 -day notice letters also contain a series of unfounded accusations regarding the <br /> alleged "collusion" among DEQ, USA and other permittees to "avoid compliance" with the <br /> Clean Water Act. Both the TMDL Schedule and the MS4 permit were subject to a very open <br /> and public process and issued by the DEQ pursuant to their typical public notice and comment <br /> SCHWABE WILLIAMSON & WYATT <br /> PDX/0914 1 8/1 1590281K/704087.1 <br />