STATE WATER RESOURCES CONTROL BOARD

BOARD MEETING SESSION--DIVISION OF WATER QUALITY

FEBRUARY 17, 2000

 

 

ITEM:  12

 

 

SUBJECT:

 

CONSIDERATION OF APPROVAL OF PROPOSED REVISED REGULATIONS FOR WATER QUALITY CERTIFICATION PROGRAMS

 

 

DISCUSSION:

 

Section 401 of the Federal Water Pollution Control Act (Clean Water Act) (33 United States Code  §1341) requires that anyone seeking a federal license or permit for an activity which may discharge to national waters must receive certification from the applicable state that such discharges will comply with state and federal water quality standards and with state laws.  Sections 13160 and 13160.1 of the California Water Code authorize the State Water Resources Control Board (SWRCB) to administer the Water Quality Certification Program.  Section 1058 of the Water Code allows the SWRCB to adopt regulations necessary to carry out its powers and duties under federal and State laws.  Regulations governing the Water Quality Certification Program and other types of programs (e.g., tax, small business, and pollution control) and the petition process for challenging all certification actions were enacted in 1981 (23 California Code of Regulations [CCR] §§3830-3869).  No changes to the Water Quality Certification Program regulations (23 CCR §§3855-3864) or certification petition process regulations (23 CCR §§3867-3869) have been made since then.

 

Requests for water quality certification generally originate from two groups: (a) persons or entities seeking licenses or license amendments from the Federal Energy Regulatory Commission (FERC) to construct and operate hydroelectric, pipeline, and other energy-related facilities and (b) those seeking permits from the U.S. Army Corps of Engineers for the discharge of dredged or fill materials to waters of the United States.  The first category of projects frequently involves construction, operation, and maintenance of power-generating dams and related facilities.  The latter includes development, flood control, and infrastructure construction/repair projects.

 

Staffs of the SWRCB and the Regional Water Quality Control Boards review projects for compliance with water quality standards (i.e., beneficial uses, objectives, and antidegradation policy).  The certification-application review process is similar to that employed in developing water quality permits (e.g., Waste Discharge Requirements [WDRs]).  Applicants for certification of dredge/fill projects currently pay a project size-based fee.  There are at this time no specific certification application fees for FERC-related projects, although the application process is frequently a lengthy and resource-intensive process.

 

SWRCB staff proposes changes to the regulations (Attachment 1) governing water quality certification and other certification programs to: (1) delegate certification authority for dredge/fill projects to the RWQCBs and Executive Officers of the nine RWQCBs; (2) implement a new fee schedule to appropriately compensate the SWRCB for reviewing and processing applications for certification for hydroelectric (FERC) projects; (3) make the certification program petition process consistent with that in place for other existing water quality regulatory programs (e.g., WDRs); and (4) bring the regulations into general compliance with existing State and federal laws and regulations.

 

 

POLICY ISSUE:

 

Should the SWRCB approve the proposed revised regulations for the Water Quality Certification Programs and authorize the Executive Director to submit the proposed regulations to the Office of Administrative Law for approval?

 

 

FISCAL IMPACT:

 

Applicants currently pay no fees or relatively small fees for certification of hydroelectric facilities.  The proposed new certification fee schedule is based on the amount of work required to review the application.  A table of certification application fees anticipated for facilities seeking FERC relicensing is included (Attachment 2).

 

In the absence of appropriate fees, FERC activities are currently funded through a General Fund appropriation.  Any fees collected in the future as a result of the proposed regulations will be used to reduce yearly expenditures from the General Fund.  Even after implementation, fee revenues will vary significantly from year to year.  For this reason, the General Fund must continue as a revenue source.  The level of budget authority is currently adequate for yearly support of this (hydroelectric project-related) portion of the Certification Program.  Therefore, there is (currently) no need to request a change to that level.

 

Applicants currently pay reasonable application handling fees to receive certification for dredge/fill-related projects.  There will be no fee increase for such application fees as a result of the proposed regulations.  The regulations do propose a new, nominal ($60) notification fee with limited applicability (i.e., when a federal general permit is certified and when certification conditions require subsequent project-by-project notification to the State before project construction begins).

 

 

RWQCB IMPACT:

 

All RWQCBs.

 

 

STAFF RECOMMENDATION:

 

That the SWRCB approve the proposed revised regulations for the Water Quality Certification Programs and authorize the Executive Director to submit the proposed regulations to the Office of Administrative Law for approval.

 

Note:  The table of certification application fees anticipated for facilities seeking FERC relicensing is not available electronically.  For copies, contact:  Timothy Stevens/Division of Water Quality/State Water Resources Control Board

P.O. Box 944213/Sacramento, CA  94244-2130/(916) 657-1022 or FAX (916) 657-2127

_________________________________________________________________

JANUARY 24, 2000  DRAFT

 

STATE WATER RESOURCES CONTROL BOARD

RESOLUTION NO. 2000-__

 

APPROVAL OF PROPOSED REVISED REGULATIONS FOR

THE WATER QUALITY CERTIFICATION PROGRAMS

 

WHEREAS:

 

1.  The Water Quality Certification Program, as established by section 401 of the Federal Water Pollution Control Act (Clean Water Act) (33 United States Code [USC] §1341), is an important regulatory tool available to the State Water Resources Control Board (SWRCB) and Regional Water Quality Control Boards (RWQCBs) in their efforts to manage discharges to waters of the State of California.

 

2.  On April 29, 1999, the SWRCB published a notice of proposed rulemaking and publicly circulating a first draft of proposed revisions to the regulations which govern the Water Quality Certification Program.

 

3.  The SWRCB held a hearing on June 8, 1999 to better solicit public comments on the proposed regulations.  Two-hundred and sixty-five written and verbal comments from 20 separate organizations and individuals were received.

 

4.  On December 24, 1999, the SWRCB staff circulated for review and comment a final draft of the proposed revised regulations amended in response to those public comments.

 

 

THEREFORE BE IT RESOLVED THAT:

 

The SWRCB approves the proposed revised regulations for the Water Quality Certification Programs and authorizes the Executive Director to submit the proposed regulations to the Office of Administrative Law for approval.

 

 

CERTIFICATION

 

The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Resources Control Board held on February 17, 2000.

 

 

 

Maureen Marché

Administrative Assistant to the Board