1 State Water Resources Control Board - PowerPoint Presentation

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State Water Resources Control BoardEnvironmental Review Process for the Clean Water State Revolving Fund (CWSRF) Program

Presented by

Lisa Lee, Environmental Review Unit

April 13, 2012Slide2

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Topics We Will Cover TodayQuick CEQA overviewCWSRF ProgramEnvironmental Review Unit Role

CWSRF Program Federal Cross-cutters Requirements

CWSRF

Program Environmental

Review ProcessSlide3

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What is CEQA?California

E

nvironmental

Q

uality

A

ct

CEQA was enacted in 1970 to ensure that

state and local public governmental agencies

consider the environmental impact of their decisions when approving a project.Slide4

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CEQA objectives:Disclose to decision makers and the public the significant environmental effects of proposed activities

Identify ways to avoid or reduce environmental damage and prevent environmental damage by requiring implementation of feasible alternatives or mitigation measures

Disclose to the public reasons for agency approval of projects with significant environmental effects

Foster interagency coordination in the review of projects

Enhance public participation in the planning processSlide5

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What’s considered a “project” under CEQA? “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment

An action is considered a project when a governmental agency:

~Builds something

~Funds an activity

~Issues a permit for an activitySlide6

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Public Agency Roles3 types of agency responsibility under CEQA:

Lead Agency

– Government agency with the principal responsibility for carrying out or approving a project. Must complete the CEQA document.

Responsible Agency

– Government agency that has a legal responsibility for carrying out or approving a project (e.g. issue permit or give funding *State Water Board*).

Trustee Agency

– Government agency with jurisdiction over certain resources held in trust for the people of California (e.g. DFG).Slide7

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Lead Agency and Responsible Agency interactions during the CEQA ProcessSlide8

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Types of CEQA DocumentsNotice of Exemption

Initial Study

Negative Declaration

Mitigated Negative Declaration

Environmental Impact Report

Addendum, Supplemental and Subsequent CEQA documentsSlide9

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ExemptionsProjects may be exempt from CEQA requirements if the type of activity(s) will not have a significant environmental impact (i.e. no mitigation or avoidance measures are required to reduce environmental impacts).

Exceptions to exemptions (Classes 3, 4, 5, 6 and 11) disqualify a project from meeting exemption requirements (see Public Resources Code Sections 21084(b), (c), and (e); CEQA Guidelines, Section 15300.2)Slide10

CEQA Review Process

If a Project is determined to be exempt from CEQA Requirements, the applicant/lead agency must file an NOE with the county clerk(s) and the SCHThe NOE must contain the Project information, location, exemption type (categorical, statutory) and reasons why the Project is exemptApplicants are required to file the NOE with the SCH (a state agency) since the State Water Board is a state agency

Applicants must provide a copy of the filed NOE containing both date stamps from the county clerk(s) and the SCH

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The CEQA Review Process, continued

Lead, Responsible and Trustee Agencies coordinate with each other throughout the CEQA process to design the Project and develop the CEQA documentPre-Project planning (scoping meetings with stakeholders, regulatory agencies and the public; issuing a Notice of Preparation (for EIRs); public meetings and etc.Once a draft CEQA document is prepared (ND, MND and EIR), the CEQA document must be circulated to the public and be available for public review and comment through a public review processEach governmental agency is required to establish guidelines on how to comply with CEQA; thus, local agencies will conducting a separate public review process along with the State Clearinghouse (SCH) review process.

The State Water Board requires applicants to complete the SCH review process, since the State Water Board is a state agency

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The CEQA Review Process, continued

During the public review process, the draft CEQA document is circulated to the public for commenting (public input) during a specified time period.Following the public review period, Lead and Responsible Agencies must consider the comments and respond accordingly, including making any appropriate revisions to the draft CEQA document and incorporating the comments/responses and revisions into the final CEQA documentLead and Responsible Agencies must complete an action on the

CEQA document (

certify/not certify; adopt/not

adopt) as adequate for CEQA purposes, and/or the Project (approve/disapprove) including

any associated finding

documents

Lead

and Responsible Agencies

should file

a Notice of Determination with the county clerk(s) and the

SCH (reduces the statutes of limitations for legal court challenges from 180 days to 30 days)

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State Clearinghouse (SCH) Public Review Process

SCH distributes CEQA documents and maintains an online database (CEQAnet.ca.gov) of documents received (CEQA documents, NODs, NOEs)Lead agencies provide the SCH with 15 copies of the draft CEQA document, for the SCH’s distribution to state agencies (some federal agencies) reviewSCH will assign a special number (SCH number) for each project (but may assign multiple numbers – clerical errors?), and assign the appropriate public review period

Review period: 30 days for NDs and MNDs, and 45 days for EIRs

The SCH will send a follow-up letter to the lead agency indicating the completion of the public review period and forward copies of any letters/comments received

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CWSRF Program

Title VI of the Clean Water Act, establishes the CWSRF Program, and Section 1452 of the Safe Drinking Water Act establishes the Drinking Water SRFFunds projects associated with:Traditional Clean Water Act (CWA) Section 212 POTWs and the associated infrastructure

N

onpoint source management programs (Section 319 CWA)

D

evelopment and implementation of estuary conservation and management programs (Section 320 CWA, includes National Estuary Programs)

Other water quality improvement projects

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CWSRF Application Process1

Applicant’s must submit an application through the Financial Assistance Application Submittal Tool (FAAST) to be on the CWSRF priority list. The CWSRF application is separate from the FAAST application. An applicant submits a CWSRF application to apply for CWSRF financing. Plans for using FAAST as a CWSRF application submittal tool in process

Four different components:

Environmental Review

Technical Review

Credit Review

Legal Review

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_____________________________________________________________________________________________________________________

1

Policy for Implementing the Clean Water State Revolving Fund For Construction of Wastewater Treatment Facilities, Amended March 2009Slide16

Why do we use CEQA instead of NEPA?

Its NEPA-like, but it is not NEPAThe State Water Board’s CWSRF Policy is based on the Operating Agreement with the USEPA1, and allows the State Water Board to use the state environmental review process (CEQA) and compliance with federal laws and regulations to satisfy the CWSRF Program environmental requirements.

Thus, we use the term “CEQA-Plus”

_____________________________

1.

Operating Agreement for Activities and Functions in Managing the State Water Pollution Control Revolving Fund Program Between the State of California and the United States Environmental Protection Agency Region IX, revised June 20, 2001

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The ERU’s RoleUnder CEQA, Lead, Responsible and Trustee Agencies are required to adopt CEQA “findings” for a project.

The State Water Board as a responsible agency must consider the CEQA document prepared by the Lead Agency when funding a project.

The ERU’s role is to review and consider the project environmental documents and document environmental compliance on behalf of the State Water Board (due to the State Water Board’s funding action).

The State Water Board does not adopt, approve or certify the CEQA documents. Its only action is the funding decision and approval of its own the environmental findings. Slide18

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CWSRF Environmental Review Process – ERU responsible for making adequacy and completeness determinations: Adequacy:

All required information is sufficient to support the environmental findings.

Includes resolution of all concerns

Are the documents adequate for the State Water Board to make CEQA findings?

Have all the concerns been addressed?

Completeness

:

All required environmental documents and information have been received

Did the applicant submit all the applicable required CEQA document and supporting documentation, in accord with the Environmental Package Checklist for Applicant?Slide19

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Required CEQA DocumentsNotice of Exemption – Copy of filed NOE containing the local county clerk(-s) and OPR date stamps, plus any supporting documents (such as BMP information and incorporated measures)

Initial Study and Negative Declaration or Mitigated Negative Declaration

Draft and Final IS/ND or IS/MND

Resolution adopting the IS/ND or IS/MND, any applicable Mitigation Monitoring and Reporting Program (if using IS/MND), and making CEQA findings

Comment letters and response to comments

Notice of Determination filed with the county clerk(-s) and OPR

Supporting documents (including permits, BOs, etc.)Slide20

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Required CEQA Documents, continued.

Environmental Impact Report (EIR)

Draft and Final EIR

Resolution certifying the final EIR, adopting an MMRP and an applicable SOC, and making CEQA findings

Comment letters and response to comments

Notice of Determination filed with the local county clerk(-s) and OPR

Supporting documents (including permits, BO, etc.)Slide21

Required CEQA Documents, continued

Addendum, Supplemental and Subsequent CEQA documentsRequired if an applicant’s CEQA document is old (environmental information is outdated), and/or not CWSRF application project-specific. The CWSRF Policy requires that applicant’s provide a project-specific document

Also, if the Addendum, Supplemental or Subsequent CEQA document tiers from a Master or Program EIR and includes references and/or measures identified in the Master or Program EIR, then the CWSRF applicant must

also submit the Master and Program EIR to the State Water Board.

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Routine vs. Non-Routine

Routine (noun): 1. A customary or regular course of procedure; 2.

C

ommonplace

tasks,

chores,

or duties as must be

done

regularly

or at

specified

intervals;

typical or

everyday

activity

Non-routine

:

Projects

that do not meet all the CWSRF application requirements, including the environmental requirements. This includes completing processes that are out of the norm from normal business

practices.

Examples

of non-routine include:

Approval of an air conformity analysis for projects that would exceed federal air quality significance thresholds for federal criteria pollutants.  

Requests for waivers from complying with certain CWSRF

Program application requirements, including certain environmental procedures.

Significant unavoidable water quality impacts

.

Significant comments made on significant unavoidable environmental impacts as identified in draft environmental documents

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Non-Controversial vs. Controversial

Non-Controversial (adjective): Not subject to controversyControversy (noun): is a state of prolonged public dispute or debate, usually concerning a matter of

opinion

Controversial (adjective):

1. Of

,

pertaining

to, or characteristic of controversy

2. Subject to controversy; debatable

Projects

with out of the norm local public and/or regulatory opposition or concerns.

ERU staff

must document the controversial issues in the project files. The information must be made available to provide briefings to the Board.

Examples

of controversial include

:

Legal challenges

to an applicant’s CEQA document

Out of the norm and/or significant public opposition towards a project

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Issues to ConsiderProjects that will result in unavoidable significant adverse water quality impacts - Statements of Overriding Consideration (SOC)

Controversial and non-routine projects

- Litigation

- Public controversy

- Projects that are ‘out of the norm’

Potential changes in the scope of work due to resource agency consultations

- Permitting (404/401, DFG SAA)

- State and Federal Agency consultations

* DFG, California Coastal Commission

* USACOE, USFWS, SHPOSlide25

CWSRF Program Federal Environmental Cross-cutters

40 CFR Section 35.3145 establishes the environmental requirements under the CWSRF regulationsThe State Water Board is required to comply with federal environmental laws and regulations when it funds a projectThe State Water Board must document environmental compliance with a specified set of federal laws and regulations under the CWSRF Program Operating Agreement between the State Water Board and the USEPA

1

and the Cross-cutting Federal Authorities Handbook

2

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Operating Agreement for Activities and Functions in Managing the State Water Pollution Control Revolving Fund Program Between the State of California and the United States Environmental Protection Agency Region IX, revised June 20, 2001

Cross-cutting Federal Authorities: A Handbook on Their Application in the Clean Water And Drinking Water State Revolving Fund Programs, October 2003

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CWSRF Program Federal Environmental Cross-cutters

Section 7 of the federal Endangered Species ActSection 106 of the National Historic Preservation Act (includes Archaeological and Historic Preservation Act)Federal Clean Air ActProtection of Wetlands, Executive Order No. 11990, amended by Executive Order No. 12608 (1997)

Migratory Bird Treaty

Act

Magnuson-Stevens Fishery Conservation and Management Act

Flood Plain Management, Executive Order No. 11988, amended by Executive Order No. 12148 (1979)

Farmland Protection Policy Act

Coastal Zone Management Act

Wild and Scenic Rivers Act

Safe Drinking Water Act, Sole Source Aquifer Protection

Coastal Barriers Resources Act

Environmental Justice, Executive Order No. 12898 (February 11, 1994)

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Federal Endangered Species Act (ESA)

Passed in 1973, “to conserve the ecosystems upon which endangered and threatened species depend and to conserve and recover listed species”Sections 7 (federal public governmental agencies) and 10(a)(b)(non-federal governmental agencies and individuals)

ESA administered by the United States Department of the Interior, Fish and Wildlife Service (USFWS) and the United States Department of Commerce National Oceanic and Atmospheric Administration, National Marine Fisheries Service (NMFS)

Differs from the California ESA; more restrictions under CESA

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Section 7 Federal ESA, continued

Requires all federal agencies to conduct programs for conserving listed species, and ensure that actions they authorize, fund or carry out are not likely to jeopardize the continued existence of listed species or adversely modify critical habitatMust consult with the USFWS and NMFS if a project may affect a listed species and designated critical habitat

USFWS and NMFS work with agencies to plan and modify projects to minimize impacts on listed species and their habitat, including identifying conservation measures

USFWS -

terrestrial and freshwater species and compiling and managing ESA species list

NMFS

- marine

species, including anadromous fish species (federal ESA listed salmon, steelhead and sturgeon species)

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Section 7 Federal ESA

Listing DefinitionsThreatened: Any species likely to become endangered in the foreseeable futureEndangered: Any species in danger of extinction throughout all or a significant portion of its range

Candidate Species

: Species is being considered for ESA listing

Species of Concern

: Species is declining or appear to be in need of conservation, but is not being considered for ESA listing

Critical Habitat

: Specific geographic areas with physical and biological features essential to the conservation of a listed species

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Section 7 Federal ESA, continued

Three possible ESA findings:No Effect May Affect, But is Not likely to Adversely Affect (NLAA)

May Affect, and Likely to Adversely Affect (LAA)

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Section 7 Federal ESA, continued

No Effect:

No effect whatsoever, not even a beneficial effect

No USFWS and NMFS consultation required, unless USFWS and NMFS does not concur with a federal agency’s no effect finding

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Section 7 Federal ESA, continued

May Affect

= Listed species or designated critical habitat is exposed to a stressor generated or caused by an action, or interrelated and/or interdependent actions

Must consider project effects and interrelated and interdependent actions, including beneficial, direct and indirect impacts (growth inducing impacts)

NLAA if impacts to a species or its designated critical habitat are likely to be discountable, wholly beneficial, and insignificant (never rises to the level of take).

Must initiate

INFORMAL CONSULTATION

and obtain written concurrence from USFWS and

NMFS before proceeding with project construction

LAA if the project will directly or indirectly have an adverse affect to a listed species or its designated critical habitat. Must initiate

FORMAL CONSULTATION

with USFWS and NMFS, and obtain a Biological Opinion before proceeding with project construction

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Daniel Russell, Division Chief, USFWS Introduction to the Endangered Species Act, May 2008

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Section 7 Federal ESA, continued

May Affect but NLAA: When effects on a listed species or critical habitat is discountable, insignificant, or completely beneficialBeneficial effects

: Contemporaneous positive effects without any adverse effects

Insignificant effects

: Relate to the size of the impact and should never reach the scale where take would occur

Discountable effects

: Those that are extremely unlikely to occur. Based on best judgment, a person would not: 1) be able to meaningfully measure, detect, or evaluate insignificant effects; or 2) expect discountable effects to occur

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Section 7 Federal ESA, continued

Effects Analysis includes an assessment of:Direct and Indirect effects (includes stressors and benefits) of:A federal action

An applicant’s action

Interrelated or interdependent actions

C

onservation and minimization measures

Interrelated (adj.)

:

1) influenced by one another

;

2) in a relationship in which each depends on or is affected by the other(s); 3) reciprocally or mutually

related

Interdependent (adj.)

: 1)

unable to exist or survive without each

other; 2) relying

on mutual assistance, support, cooperation, or interaction among constituent parts or

members

Direct:

Those effects that are caused by the action(s) and occur at the time of the action(s)

Indirect:

Those effects that are caused by the action(s) and are later in time, but are still reasonable certain to occur

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Section 7 Federal ESA, continued

Informal Consultation (No Effect, NLAA):USEPA designated the State Water Board to act as the non-federal lead to initiate informal consultation with the USFWS and prepare Biological Assessments or biological evaluations. State Water Board must also coordinate with the USEPA if initiating informal consultation with the NMFS

USFWS and NMFS must issue written concurrence before CWSRF financing approval

Formal Consultation (LAA):

Must

be coordinated with the USEPA.

USEPA will request formal Section 7 ESA consultation with USFWS and NMFS

USFWS and NMFS issues a Biological Opinion and may prescribe additional protective measures (conservation measures)

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Section 7 ESA, continued

Formal Consultation (LAA)USFWS and NMFS determinations may include:Species:Likely to Jeopardize the Continued Existence

Not Likely to Jeopardize the Continued Existence

Critical

Habitat:

Likely to Destroy or Adversely Modify

Not Likely to Destroy or Adversely Modify

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Section 7 Federal ESA, continued

What to look for and types of documents you should review:Review current (less than six months old) USFWS species lists, as well as a California Department of Fish and Game California Natural Diversity Database species list for the project areaReview recent focused and Biological Surveys for the project area. Biological Survey should include:

Location and Project description

V

egetation and wildlife

E

xisting regulatory laws, including any existing approved Habitat Conservation Plan/Natural Community Conservation Planning that covers the project area

S

pecies accounts (species lists), and species expected to be in the project area and type of suitable habitat

Identification of designation critical habitat and known species range

Analysis of potential species impacts

I

dentification of measures to reduce, avoid and minimize impacts

A

ny recommendations (including initiating USFWS consultations)

References , literature reviewed, expert opinion etc.

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Section 7 Federal ESA, continued

Informal consultation:ERU staff must develop a letter requesting Section 7 Informal Consultation with the USFWS . The letter should include:Background information on the CWSRF Program and the federal nexus (CWSRF capitalization grant funding), as well as USEPA’s delegated authority to the State Water Board for informal Section 7 consultation

State Water Board’s Section 7 ESA finding for each species (No Effect; NLAA)

Project location and description

Vegetation and wildlife species, species account, background information for species (includes literature reviews, database searches), designated critical habitat

Analysis on project impacts to species and designated critical habitat

Measures taken to reduce, avoid or minimize impacts

Reasons for the Section 7 ESA finding

Identification of biological and protocol surveys for the project area (forward copies of all surveys and information used to support your finding)

*

Note that Informal Section 7 ESA consultation with the NMFS must be coordinated with the USEPA. ERU staff must develop a template letter (containing the above information) and forward

to the

USEPA with all supporting documents and surveys to use in the consultation process.

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Section 7 Federal ESA, continued

Formal consultation (LAA):ERU staff must coordinate with the USEPA for the USEPA to initiate formal Section 7 ESA consultation with the USFWS and NMFSERU staff must develop a template consultation letter for the USEPA to use, and forward a Biological Assessment done for the project

The

letter should include:

Background information on the CWSRF Program and the

USEPA requirements under ESA

Section

7 ESA

findings for each species (No

Effect; May

Affect but NLAA, May Affect but LAA)

Project location and description

Vegetation and wildlife species

Species account, background information for species (includes literature reviews, database searches), designated critical habitat

Analysis on project impacts to species and designated critical habitat

Measures taken to reduce, avoid or minimize impacts

Reasons for the Section 7 ESA finding

Identification of biological surveys for the project area (forward copies of all surveys and information used to support your finding)

USFWS and NMFS may request additional information, and must issue a Biological Opinion before the State Water Board approves the CWSRF financing and prior to the applicant proceeding with construction.

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Section 106 of the National Historic Preservation Act (NHPA, 1966), and the Archaeological and Historic Preservation Act (AHPA, 1974)

NHPA Preservation of historic sites, buildings, structures, districts and objects of national, state, tribal, local and regional significance, and protection of such historic properties from adverse impacts due to federal agency undertakings.Administered by the United States Department of the Interior and the Advisory Council on Historic Preservation (Council)

Must determine if a project might affect historic properties that are included or are eligible for inclusion on the National Register of Historic Properties.

Generally, consultation required between SHPO/THPO and federal agency; however, the Council may be consulted for certain undertakings

AHPA

Limit the loss of important historical data due to federal or federally authorized construction activities.

For inadvertent discoveries of historic properties after a project has begun and potential adverse effect may occur (NHPA does not have a provision for late discoveries of historic properties).

Usually done as part of the Section 106 NHPA consultation process with the SHPO/THPO.

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Section 106 NHPA and AHPA in the CWSRF Program

Programmatic Agreement between the USEPA, State Water Board, Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation OfficersUSEPA delegated Section 106 compliance and consultation with SHPO and THPO to the State Water Board

Cultural Resources Officer (CRO) for the State Water Board reviews the cultural documents submitted by applicants to see if sufficient information has been provided to support Section 106 findings. May initiate Section 106 NHPA consultation with the SHPO/THPO if no effect finding can not be made.

M

ust work with the CRO to obtain a memo and language (including any required special condition measures) for inclusion in State Water Board environmental compliance documents (ERS, FPA/PFC and Exhibit D)

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Federal Clean Air Act, 1970 (amended 1977)

Signed by President Richard Nixon on December 31, 1970 to foster the growth of a strong American economy and industry while improving human health and the environment.Amended in 1977 and on November 15, 1990 by President George H.W. Bush to set new goals

for

achieving attainment of

National Ambient Air Quality Standards (NAAQS)

since many areas of the country had failed to meet

the original 1975 air quality attainment deadlines.

1977 Amendments included:

Curbing

four

major threats

to the environment and

human health:

acid rain, urban air pollution,

toxic air

emissions, and stratospheric ozone depletion.

Establish a

national

operating permits program (via through local Air Management Districts)

to make the law more workable, and strengthened

enforcement.

Authorized

the development of comprehensive federal and state regulations to limit emissions from both stationary (industrial) sources and mobile sources.

Four

major regulatory programs affecting stationary sources were initiated:

NAAQS

State

Implementation

Plans (SIP),

New

Source Performance

Standards

National

Emission Standards for Hazardous Air Pollutants.

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Federal Clean Air Act, continued

Must conduct a Clean Air Act Conformity Analysis (40 CFR 93.150). Projects located in nonattainment and maintenance areas for federal criteria pollutants Analyze direct and indirect air emissions for project construction and operation

Project emissions exceed air quality thresholds, but sized to meet populations projections in accord to the SIP

Consider established air quality thresholds of significance set by local

A

ir

M

anagement Districts and state (

failure to comply with

SIP); also consider annual air emissions inventory for the basin area(-s) published online through the Air Resources Board

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Federal Clean Air Act, continued

Project conforms: Total emissions (direct and indirect) are below de minimis levels for a nonattainment criteria pollutant Project does not conform and requires a conformity determination: Total emissions (direct and indirect) are above

de minimis

levels for a nonattainment criteria

pollutant; Project does not conform to the SIP

State Water Board must coordinate with the USEPA to develop a

conformity determination and

complete a

public review/comment

process

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Protection of Wetlands

Executive Order No. 11990 (1977), amended by Executive Order No. 12608 (1997)USEPA’s “no net loss of wetlands” policyNational policy for the protection of wetlands (included marshes, swamps, bogs, ponds and other areas inundated with water), other waters and waters of the United States (both navigable and non-navigable waters)

Stems from the Rivers and Harbors Act (1899,

President William McKinley – to

protect navigation and waters

from

pollution),

which still exists and makes it a misdemeanor to discharge refuse matter of any kind into navigable waters and tributaries of the United States without an approval and a permit (Refuse Act) from the United States Army Corps of Engineers (USACE)

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Protection of Wetlands, continued

Illegal to dam navigable streams, and a misdemeanor to excavate, fill or alter the course, condition, or capacity of any port, harbor, channel, or other areas without a permitSame activities regulated under the Clean Water Act (Rivers and Harbors Act preceded and set-up the stage for the CWA)USACE administers both the Rivers and Harbors Act and the Clean Water Act (Section 404), and responsible for issuing permits

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Protection of Wetlands in the CWSRF Program

Applicant’s must provide documentation, including:A Preliminary Wetland Delineation ReportBiological surveys

Field verification report done by the USACE

USACE Permit application

CWA Section 404 permits and Section 401 WQ Certification (Regional Water Board) – the CWA Sections 404 and 401 approval documents work hand-in-hand.

Applicant may have already initiated consultation with the USACE to obtain permits; however, the State Water Board may still be obligated to consult with the USACE and USFWS under the CWSRF Program

If consultation with the USACE and USFWS is required, ERU staff must initiate consultation via letter and forward all supporting documentation, including information on alternative sites and measures to reduce or avoid impacts to wetlands, other waters and waters of the US.

Must obtain written concurrence/permit before approving CWSRF financing

Note that the USACE is required to initiate federal agency consultation with the USFWS, NMFS, SHPO and others, and consider those agency comments prior to issuing a permit (this may cause project changes due to agency consultations)

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Migratory Bird Treaty Act, 1918

Prohibitions make it illegal for anyone to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time, or in any manner, any migratory bird, included in the terms of this Convention . . . for the protection of migratory birds . . . or any part, nest, or egg of any such bird

.“

Migratory

Bird Treaty Reform Act of

1998 amended MBTA

to make it

“

unlawful

to take migratory game birds by the aid of bait if the person knows or reasonably should know that the area is baited.

Unlawful to

place or direct the placement of bait on or adjacent to an area for the purpose of taking or attempting to take migratory game birds, and makes these violations punishable under title 18 United States Code, (with fines up to $100,000 for individuals and $200,000 for organizations), imprisonment for not more than 1 year, or both

.”

U

SFWS administers the MBTA

Must consult with the USFWS (as well as the Department of Fish and Game under Fish and Game codes 3511 and 3513) to identify appropriate measures for mitigating/avoiding impacts to migratory, raptor and fully protected species.

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Magnuson-Stevens Fishery Conservation and Management Act, 1976

Manage and conserve national fishery resources and reduce marine habitat loss8 Regional Fishery Management Councils (RFMC) maintain fisheries in geographic regions through Fishery Management Plans (FMP)NMFS issues regulations based on those FMPs

In 1996, the Act was amended by the Sustainable Fisheries Act which added requirements for identifying and protecting Essential Fish Habitat (EFH) for listed species in the fishery management units

Each RFMC required to designate EFH in their respective regions and identify adverse effects on EFHs

Must consult with NMFS for any adverse impacts to EFH

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Magnuson-Stevens Fishery Conservation and Management Act (Act), continued

Applicants must provide information/surveys (EFH Assessment) and maps (from the NMFS) to identify designated EFH in their project areas and assess if the project will have the potential to adversely impact EFHIf EFH may be adversely impacted, ERU must prepare a letter and enclose any applicable surveys (EFH Assessment)

documents for USEPA to initiate EFH consultation with the NMFS

NMFS must provide concurrence (informally or written) and may provide EFH Conservation recommendations

The EFH Conservation recommendations will be included as a special condition of the applicant’s CWSRF financing agreement

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Flood Plain Management, Executive Order No. 11988

Requires all agencies undertaking, financing, or assisting proposed activities to determine whether they will occur in or affect a flood plainPublic review required (CEQA review process) for projects occurring in flood plainEvaluate potential measures to avoid adversely affecting the flood plain, including identify alternative locations outside the flood plainIf alternative locations are infeasible, must identify measures to minimize risk of flood damage to or within the flood plain

Must:

Evaluate and determine if project is located within a flood plain by reviewing flood maps (FEMA, US Department of Housing and Urban Development, US Department of Agriculture, and state water resource planning agencies).

If project is located in a flood plain, the applicant must prepare a flood plain assessment, including assessing flooding impacts, alterative locations, and measures/design modifications to reduce flooding impacts; and publically notify reasons for proposing the project in a flood plain.

ERU staff makes a finding on the Executive Order No. 11988 compliance and must notify FEMA (FEMA may provide additional measures) via letter

51Slide52

Farmland Protection Policy Act, 1981

Federal agencies must consider a project’s effect on agricultural land and take alternative/mitigating measures to ensure valuable farmland is preserved.Important farmland: Unique and Prime farmlandFarmland of local and statewide importance

Farmland under a Williamson Act Contract (important farmland)

ERU staff must:

Determine if important farmland is located within project area, and if the project will result in a temporary or permanent conversion of important farmland to non-agricultural use.

Notify (via letter) the United States Department of Agriculture, local (RCDs) and state (California Department of Conservation) soil conservationist representatives, of the project and proposed measures identified to avoid, minimize, or mitigate farmland impacts.

52Slide53

Coastal Zone Management Act, 1990

Federal agencies must ensure that projects in coastal areas are consistent with the state coastal zone management plans approved by the United States Department of Commerce.Applicant’s must consult early with the state Coastal Zone Management Agency (California Coastal Commission, the San Francisco Bay Conservation and Development Commission) to ensure consistency with the state coastal zone management plan, including identifying appropriate project locations.

Applicant required to provide the State Water Board with documentation that the project is consistent with the state’s coastal zone management

plan

53Slide54

Coastal Zone Management Act, continued

State Water Board required to consult with the California Coastal Commission and/or the San Francisco Bay Conservation and Development Commission, to obtain a consistency determination (if the applicant has not yet completed the process). Local (Local Coastal Program) and/or state Coastal Zone Management Agency will issue the applicant a Coastal Development Permit (which includes a consistency determination

).

Coastal Development Permits

are issued

by the local agency responsible for administering a Local Coastal Program,

and

the state Coastal Zone Management Agency (California Coastal Commission, the San Francisco Bay Conservation and Development Commission) .

54Slide55

Wild and Scenic Rivers Act, 1968

Preserve the special scenic, cultural, historic, recreational, geologic, and fish and wildlife values of the free flowing rivers and related adjacent land.Prohibits federal assistance (including financing) for water resource projects that would have a direct and adverse effects on, invade, or unreasonably diminish, the special values of a designated wild and scenic river.

Must consult with state (California State Parks) and federal authorities (National Park Service, US Forest Service, Bureau of Land Management) with jurisdiction over the rivers in the project area, and evaluate alternatives.

Alternatives that will result in adverse effect on the wild and scenic designation of the river, must be eliminated. Applicant must identify other alternatives.

55Slide56

Wild and Scenic Rivers Act, 1968

As of today, 22 waterbody sections have a wild and scenic river designation in CAAmargosa RiverAmerican River (Lower)American River (North Fork) under BLM

Bautista Creek

Big Sur River

Black Butte River

Cottonwood Creek

Eel River

Feather River

Fuller Mill Creek

Kern River

Kings River

Klamath River (USFS)

Merced River under BLM

Palm Canyon Creek

Piru Creek

San Jacinto River (North Fork)

Sespe

Creek

Sisquoc

River

Smith River

Trinity River

Tuolumne River under BLM

__________________________________

56

http://rivers.gov/wildriverslist.htmlSlide57

Safe Drinking Water Act (1994) – Sole Source Aquifer Protection

Prevent contamination of aquifers that are the sole source of drinking water for a communitySupplies at least 50% of the drinking water consumed in the area overlying the aquifer

T

hese areas must

have no alternative drinking water source(s) which could physically, legally, and economically supply all those who depend upon the aquifer for drinking

water

57Slide58

Safe Drinking Water Act (1994) – Sole Source Aquifer Protection

Must determine if project is located in a USEPA designated sole source aquiferApplicant must provide documentation of surveys done to determine if a project could contaminate a sole source aquifer (normally done in consultation with the Department of Public Health)

In consultation with DPH and USEPA, applicant must identify alternative site(s) or identify adequate mitigation measures. Those measures and/or alternative

sites

must be integrated into the project design

58Slide59

Coastal Barriers Resources Act, 1982

Discourages development in a Coastal Barrier Resources System, which is a collection of undeveloped and ecologically sensitive barrier formations along the Atlantic and Gulf Coasts of the US, and the shore areas of the Great Lakes. Restricts federal funding and assistance that encourages development in the Coastal Barriers Resource System and the adjacent wetlands, marshes, estuaries, inlets and near-shore waters.As of today, there are no designated Coastal Barrier Resource Systems in California

S

hould ever be such a designation in California, the State Water Board must consult with the state Coastal Zone Management Agency (California Coastal Commission, San Francisco Bay Conservation and Development Commission) and the USFWS.

Any measures recommended by the USFWS and/or the state Coastal Zone Management Agency must be included in the project design and made a condition of the CWSRF financing approval (Exhibit D).

59Slide60

Environmental Justice, Executive Order No. 12898 (February 11, 1994)

Federal agency must identify/address any “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”The term “environmental justice concern” is used to indicate the actual or potential lack of fair treatment or meaningful involvement of minority, low-income, or indigenous populations, or tribes in the development, implementation, and enforcement of environmental laws, regulations, and policies.  

Environmental justice concern:

Create

new disproportionate impacts on minority, low-income, or indigenous

populations;

E

xacerbate

existing disproportionate impacts on minority, low-income, or indigenous populations; or

Present

opportunities to address existing disproportionate impacts on minority, low-income, or indigenous populations that are addressable through the project.

60Slide61

Documenting environmental findings

Once both adequacy and completeness are met, ERU staff should begin preparing: Environmental Review Summary (ERS)

Environmental language for the Facilities

Plan Approval (FPA) and Preliminary

Funding Commitment (PFC)

Exhibit D for special environmental

conditions of the applicant’s CWSRF

financing agreement

61Slide62

62

Documenting environmental findingsThe Environmental Review Summary:

The ERS is a brief synopsis of the CEQA review process done for the project, and a summary of how the project complies with the federal cross-cutters

Includes discussions of any applicable consultations with federal authorities (i.e. Section 7 federal ESA, Section 106, Section 404 CWA, etc.), as well as public participation done for the project.

Also includes the State Water Board’s environmental findings, including SOC findingsSlide63

63

Documenting environmental findings

Environmental Language for the FPA and PFC

The FPA is a document issued by the State Water Board following the environmental review, and indicates the State Water Board’s understanding of an applicant’s project (scope of work, location, environmental, financial, legal,

etc

).

The PFC is a document approved by the State Water Board, and commits CWSRF monies to an applicant’s project. The applicant can start constructing at the date of PFC approval and can get reimbursed for eligible construction costs.

FPA and PFC document indicates the State Water Board’s understanding of the CEQA review process, a synopsis of the project’s environmental compliance, and includes the State Water Board’s environmental findings. Slide64

Documenting environmental findings

The FPA and PFC document can be separate approval documents or a joint FPA/PFC document.This indicates whether the ERU staff will need to prepare the environmental language for a joint FPA/PFC or separate FPA and PFC documents. Based on whether the project is routine and/or non-controversial, or non-routine and/or controversial

Includes whether or not an applicant needs a waiver from certain CWSRF Program Policy requirements

Best to consult with your PM to figure out what type of environmental language for the FPA and PFC documents you need to prepare

64Slide65

65

Documenting environmental findings

FPA and PFC approvals:

Routine and/or non-controversial:

Normally prepare the environmental language as a

joint

FPA/PFC document and the Deputy Director of Division provides the approval

Non-routine and/or controversial:

Normally prepare environmental language for

separate

FPA and PFC documents, and the project will go to the Board for consideration and approval of the PFC.

Once the

Deputy

Director / Board approves the PFC, ERU staff will need to file an NOD or NOE with the SCH due to the State Water Board’s discretionary funding action.Slide66

Documenting environmental findings

Exhibit D Special Environmental ConditionsConditions the applicant’s CWSRF financing agreement for the applicant to comply with and report on certain environmental measures.

The conditions can include, but are not limited to:

C

ompliance with permit conditions/measures issued by federal authorities responsible for administering one of the CWSRF Program federal cross-cutters (BO, CWA Section 404 permit, CWA Section 401 WQ Certification, etc.)

Specified measures the applicant identified in environmental documents as needed to avoid, minimize or reduce environmental impacts, but the applicant failed to commit themselves to implementing the measures

Monitoring and preconstruction measures (such as cultural resources, and migratory birds)

66Slide67

ERU - Environmental Databases and File Organization

Must update databases and project tracking documentsLoans and Grants Tracking System (LGTS) – Requires continuous updating due to public reportsLGTS tracking forms – ERU staff must complete a LGTS form for each project

Project List in the ERU folder on the S drive – ERU Project List Excel document used to track projects submitted to the ERU

CWSRF cabinet filing list – Located in the ERU folder on the S drive, for tracking project folders

SCH tracking sheet – located in the ERU folder o the S drive, for tracking draft CEQA documents

Useful databases and document references:

CEQAnet

database (CEQAnet.ca.gov)

CWSRF Priority List

FAAST system

67Slide68

Questions?

68