STATE WATER RESOURCES CONTROL BOARD

WORKSHOP SESSION--DIVISION OF WATER QUALITY

JUNE 1, 2000

 

 

ITEM 10

 

SUBJECT:

 

STATUS UPDATE ON THE U.S ARMY CORPS OF ENGINEERS NATIONWIDE PERMITS

 

DISCUSSION:

 

On March 9, 2000, the U.S. Army Corps of Engineers (Corps) published its intent to modify the Nationwide Permit (NWP) Program and requested that the states make their final decision on water quality certification of the proposed changes by June 7, 2000.  The NWP Program has not been brought before the State Water Resources Control Board (SWRCB) since the Corps reauthorization of the NWP Program in 1992.  Although SWRCB has delegated authority to the Executive Director, because of the change in directorship and change in Board Members since 1992, staff believes that it is appropriate to update the current Board on the existing program and provide the Board the opportunity to provide direction on the future course of the program.

 

Clean Water Act section 404/401

 

Under Clean Water Act (CWA) section 404, the Corps issues permits to regulate discharges of dredged or fill material to waters of the United States.  The Corps may issue individual or general permits.  Individual permits are issued following a full public interest review of an individual application.  The Corps may issue general permits on a state, regional, or nationwide basis for any category of activities involving discharges of dredged or fill materials if the activities within a category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.  An NWP is a form of general permit, which authorizes a category of activities throughout the nation.  Regional General Permits (RGP) are issued at the Corps district level.  Nationwide and regional permits may be issued for a maximum of five years.

 

CWA section 401 allows states to grant or deny water quality certification for any activity which results in a discharge to waters of the United States and requires a federal permit or license.  Certification requires a finding by the state that the activities permitted will comply with all water quality standards individually or cumulatively over the term of the permit.  Under Federal regulations (40 Code of Federal Regulations [CFR] 131), water quality standards include the designated beneficial uses of the receiving water, water quality criteria for those waters, and an antidegradation policy.  Therefore, CWA section 401 certification granted by the SWRCB must be consistent with the requirements of the Federal CWA, the California Environmental Quality Act (CEQA), the California Endangered Species Act (CESA), and SWRCB mandate to protect beneficial uses of waters of the State.

 

The state may issue certification (with or without conditions), deny certification, or take no action on a request for certification.  If the state certifies the activity, then the Corps must include in its permit any conditions which the state imposes in certifying that project.  If a state fails to take action on a request for certification within a reasonable time (generally, 60 days), the Corps may presume that the state has waived certification and may issue a section 404 permit.  If a state denies certification for an individual permit application, the project cannot go forward under the Federal CWA section 404 permit.  However, for an RGP and an NWP, the Corps’ practice is to issue these permits with a provision that an applicant for an individual project obtain individual certification from the state for that activity. 

 

NWP Program

 

On December 13, 1996, the Corps published its Final Notice of Issuance, Re-issuance, and Modification of Nationwide Permits in the Federal Register.  The publication included 39 revised and new NWPs.  On February 10, 1997 (Attachment 1), the SWRCB Executive Director issued CWA section 401 Water Quality Certification for 17 NWPs (Class 1).  Of the remaining 22 NWPs, 12 were identified as having the potential for certification if conditions and restrictions were developed to ensure that potential impacts could be mitigated to a level of insignificance (Class 2).  The remaining ten NWPs (Class 3) were found to cover activities that may individually or cumulatively have significant effects on the environment.  These NWPs were considered to be extremely difficult to condition on a statewide basis to ensure that the activities authorized would not result in significant adverse impacts.  Applicants are required to seek individual water quality certification on the NWP activities that are not certified by SWRCB.  In the prior reauthorization of the NWP Program in 1992, SWRCB denied all NWPs in California.

 

The Corps is currently developing a Programmatic Environmental Impact Statement (PEIS) for the entire NWP Program to be completed by December 2000.  The overall purpose of the PEIS is to review and evaluate the NWP Program as a whole to assess the individual and cumulative adverse environmental effects on the aquatic environment.

 

Current Status of Water Quality Certification of the Existing NWPs

 

Since the SWRCB’s February 10, 1997 decision to certify 17 NWPs and deny the remaining 22 NWPs, SWRCB staff has concluded that water quality certification of most of the remaining NWPs is not appropriate because the assessment of direct and indirect impacts of those NWPs cannot be determined without additional project specific information.  Staff has instead coordinated with the Corps and other agencies to develop RGPs.  Development of RGPs affords better protection of the State’s resources than the use of the NWPs.  RGPs can be developed to address targeted activities and applicants.  Also, they can be drafted to acknowledge and protect specific regional resources of special concern.  In turn, a more focused analysis of impacts enables the agencies to develop directed management practices, conditions, and mitigation.  Specific examples of RGPs include the Southern California permit for removal of invasive plants, the development and certification of repair and maintenance activities in emergency situations, and SWRCB staff’s onging effort with flood maintenance agencies to develop a general permit for specific channel maintenance activities.

 

Over the past several years, the Corps has increased its reliance on the NWP Program as a means of permit streamlining and workload reduction.  California supports regulatory streamlining.  SWRCB staff believes that appropriate regulatory streamlining is beneficial to the resource, the regulated community, and the regulators.  Streamlining provides SWRCB staff more time to focus on review of potentially significant projects while the eligible permittees are relieved of potential delays and unnecessary requirements.  However, while the SWRCB supports streamlining efforts, staff has not found certification of some NWPs to be an effective streamlining mechanism.

 

NWP 26

 

The NWP Program historically has received substantial public interest regarding potential environmental effects associated with the Corps implementation of the program overall and with NWP 26 specifically.  NWP 26 was developed by the Corps to address discharges to isolated and headwaters discharges.  Headwaters are defined as non-tidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, that are part of a surface tributary system to an interstate or navigable water of the United States upstream of the point on the river or stream at which the average annual flow is less than five cubic feet per second.  For streams that are dry for long periods of the year, the Corps’ District Engineer may establish the point where headwaters begin as that point on the stream where a flow of five cubic feet per second is equaled or exceeded 50 percent of the time.  Isolated waters are those non-tidal waters of the United States that are not part of a surface tributary system to interstate or navigable waters of the United States and are not adjacent to such tributary water bodies.  Isolated waters include vernal pools and alpine wet meadows.

 

In response to the Corps’ December 13, 1996 Final Notice of Issuance, Re-issuance, and Modification of Nationwide Permits, the Corps received more than 1,700 comments concerning NWP 26.  The Corps determined that NWP 26 should be replaced with activity-specific NWPs, but, in the interim, the Corps reissued a substantially modified NWP 26 effective for a period of two years.  NWP 26 was set to expire in December 1998; however, due to delays in issuance of replacement permits for NWP 26, the Corps extended the expiration date of NWP 26 until the replacement permits become effective.  Currently, NWP 26 allows discharges into headwaters and isolated waters provided the discharge does not cause loss of more than three acres of waters or 500 linear feet of channel.  Projects not meeting specific criteria are required to seek individual permits.

 

NWP 26 Replacement Permits

 

On March 9, 2000, the Corps published its Final Notice of Issuance and Modification of the Nationwide Permits (Final Notice), which includes five new NWPs, modification of six existing NWPs, addition of two new General Conditions, and modification of nine existing General Conditions.  The Final Notice serves as the Corps’ application to the states for CWA section 401 Water Quality Certification.  A final decision on water quality certification must be submitted to the Corps by June 7, 2000. 

 

In addition to the NWP general conditions, Corps Division Engineers may also issue regional conditions and/or suspend or revoke specific NWPs if those permits authorize activities that may result in more than minimal impacts for specific geographic areas.  In California, the South Pacific Division includes three Corps Districts: Los Angeles, San Francisco, and Sacramento.  Each of the Districts will propose regional conditions for their respective Districts.  To date, SWRCB has only received the Los Angeles Corps District notice for the establishment of regional conditions subsequent to the
March 9, 2000 Final Notice
.

 

SWRCB staff could not complete its review and assessment of the federally noticed NWP Program and the three Corps District’s regional conditions, and could not comply with the requirements of CEQA by the June 7, 2000 deadline for states to act on water quality certification.  Consequently, on May 12, 2000 (Attachment 2) the Executive Director issued a denial without prejudice of Water Quality Certification for NWP 26 replacement permits.  As has been the case with all NWPs in the past, water quality certification applications will be processed on an individual project basis.  The SWRCB may direct staff to reconsider the denial of any or all of the replacement permits at any time.

 

POLICY ISSUE:

 

This is an information item only.  The SWRCB will not be asked to make a decision at this time.

 

FISCAL IMPACT:

 

N/A

 

RWQCB IMPACT:

 

N/A