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?

Loss of these vulnerable wetlands / riparian areas and associated benefits

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