bill orme, senior environmental scientist, state water board liz haven, asst. deputy director,...
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Bill Orme, Senior Environmental Scientist, State Water Board
Liz Haven, Asst. Deputy Director, Surface Water Regulatory Branch, State Water Board
Dyan Whyte, Assistant Exec. Officer, SF Bay Regional Water Board
No consistent statewide policy exists Water Boards are required to protect
ALL “waters of the state” Federal protection extends only to
“waters of the U.S.,” a shrinking category Wetlands developed as compensatory mitigation
are losing functionality at an increasing rate Aid in buffering climate change effects (flood
protection, ground water recharge, carbon sequestration, sustaining plant and animal communities)
Why a New Policy?
State Water Board approved three-phase approach to develop statewide policy (April 2008)
Staff directed to immediately begin work on Phase 1
Policy Phase 1 Develop a definition of wetlands for California
Develop a policy to provide protection from dredge and fill activities
Design a wetland regulatory mechanism with a watershed focus, based on CWA 404(b)(1) Guidelines
Design wetland assessment method(s) to monitor wetland protection and program effectiveness
Policy Phase 2 Expand the policy to protect wetlands from
“all other activities impacting water quality”
Develop new or revised definitions of beneficial uses
Develop water quality objectives to protect beneficial uses
Design an implementation program to achieve objectives and protect wetland functions
Policy Phase 3 Extend the policy to protect water
quality functions of riparian areas
Develop new definitions of beneficial uses
Develop water quality objectives
Design an implementation program to achieve water quality objectives
Phase 1 Key Issues Wetland Definition
Federal 404(b)(1) Guidelines (40 C.F.R. § 230.10(a))
1. Avoidance First: Alternative Analysis
2. Minimize Second
3. Evaluation of Impacts
4. Mitigation Requirements
Wetland Condition Assessment
Statewide Wetlands Definition
Must accomplish mandates of Porter-Cologne and No Net Loss Policy
Must be broad enough to encompass the state’s diverse array of wetlands
Should be consistent, as far as possible, with other agencies’ definitions
Should use accepted field methods to identify wetland boundaries
404 (b)(1) Guideline Approach Avoidance First: Alternatives
Analysis
“no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem”
404 (b)(1) Guideline ApproachAvoidance First: Alternatives Analysis
(continued) Flexibility Allowed:
1.Analysis should reflect the significance and complexity of the discharge activity
2.Applicants alternative is ok if impacts equivalent to alternatives
3.Reduction to aquatic impacts cannot be made at expense of other natural resources
4.Cost of alternative cannot be unreasonable
404 (b)(1) Guideline Approach Minimize Second: Policy will
require BMPs to minimize adverse impacts
1. Locating the discharge site appropriately
2. Erosion control; veg maintenance
3. Use of technology: types of culverts, types of machinery to lessen impacts on soil, water, wetlands
404 (b)(1) Guideline Approach Minimize Second: BMPs (continued)
4. Plant and animal populations: buffers, exotic species, habitat, breeding season
5. Human use: recreation, aesthetics
6. Hydrograph: pre-project flows, channel stability, constrictions
7. Other: construction measures: hazard spill protection, road/bank erosion control, dust, noise, lights
404 (b)(1) Guideline Approach EPA/Corps New Mitigation Rule:
Highlights1. For unavoidable impacts: “no net loss”
goal: restore, enhance, establish, and preserve
2. Emphasizes “watershed approach”
3. Admin requirements : Mitigation Plan, Performance Standards, Monitoring, Site Management and Long-term Protection
Providing Mitigation Permittee-responsible
1. On-site and/or in-kind
2. Off-site and/or out–of-kind
Third – party mitigation
1. Mitigation Banks
2. In – Lieu Fee
Watershed Approach To Mitigation
Level of information commensurate with impacts
Use existing plans, or available information on type, location, and condition of existing and historic aquatic resources
Identify/prioritize sites for restoration, enhancement, establishment, and preservation
Watershed Approach (continued) Key is to sustain the aquatic
functions in the affected watershed by replacing the impacted aquatic resource type in its particular landscape position
Replace the full suite of functions
May require buffers to protect site
Mitigation Plan Identify objectives Provide a work plan Performance standards Site protection instrument Financial assurances Monitoring Long-term management plan
Performance Standards Focus is on assessing success of
outcomes, not completion of tasks
Based on attributes that are objective, verifiable, practicable, and enforceable
Can be based on functional assessment methodologies, or measurements of hydrology or other aquatic characteristics
Monitoring To determine if performance
standards are being met At least 5 years, but long enough to
show performance standards are met Mitigation plan must include party
responsible, what is measured, how and when; reporting
Adaptive management plan
Management of Site Long-term site protection through
real estate instrument or equivalent
Long-term management plan
1. Invasive species control, maintenance of hydrology, etc.
2. Identify responsible party
3. Funding arrangements
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