DEVELOPING A POLICY TO PROTECT WETLANDS AND RIPARIAN AREAS PHASE 1

1. DEVELOPING A POLICY TO PROTECT WETLANDS AND RIPARIAN AREASPHASE 1 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

2. Why a New Policy? • 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)

3. What is at risk without clear policy guidance? Loss of these vulnerable wetlands / riparian areas and associated benefits

4. State Water Board Resolution No. 2008-0026 State Water Board approved three-phase approach to develop statewide policy (April 2008) Staff directed to immediately begin work on Phase 1

5. 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

6. 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

7. 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

8. Phase 1 Key Issues Wetland Definition Federal 404(b)(1) Guidelines (40 C.F.R. § 230.10(a)) Avoidance First: Alternative Analysis Minimize Second Evaluation of Impacts Mitigation Requirements Wetland Condition Assessment

9. 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

10. 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”

11. 404 (b)(1) Guideline Approach Avoidance First: Alternatives Analysis(continued) Flexibility Allowed: Analysis should reflect the significance and complexity of the discharge activity Applicants alternative is ok if impacts equivalent to alternatives Reduction to aquatic impacts cannot be made at expense of other natural resources Cost of alternative cannot be unreasonable

12. 404 (b)(1) Guideline Approach Minimize Second: Policy will require BMPs to minimize adverse impacts Locating the discharge site appropriately Erosion control; veg maintenance Use of technology: types of culverts, types of machinery to lessen impacts on soil, water, wetlands

13. 404 (b)(1) Guideline Approach Minimize Second: BMPs (continued) Plant and animal populations: buffers, exotic species, habitat, breeding season Human use: recreation, aesthetics Hydrograph: pre-project flows, channel stability, constrictions Other: construction measures: hazard spill protection, road/bank erosion control, dust, noise, lights

14. 404 (b)(1) Guideline Approach EPA/Corps New Mitigation Rule: Highlights For unavoidable impacts: “no net loss” goal: restore, enhance, establish, and preserve Emphasizes “watershed approach” Admin requirements : Mitigation Plan, Performance Standards, Monitoring, Site Management and Long-term Protection

15. Providing Mitigation Permittee-responsible On-site and/or in-kind Off-site and/or out–of-kind Third – party mitigation Mitigation Banks In – Lieu Fee

16. 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

17. 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

18. Mitigation Plan Identify objectives Provide a work plan Performance standards Site protection instrument Financial assurances Monitoring Long-term management plan

19. 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

20. 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

21. Management of Site Long-term site protection through real estate instrument or equivalent Long-term management plan Invasive species control, maintenance of hydrology, etc. Identify responsible party Funding arrangements