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State Water Resources Control Board

Environmental Review Process for the

Clean Water State Revolving Fund (CWSRF) Program

Presented by

Lisa Lee, Environmental Review UnitApril 13, 2012

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Topics We Will Cover Today

Quick CEQA overview CWSRF Program Environmental Review Unit Role CWSRF Program Federal Cross-cutters Requirements CWSRF Program Environmental Review Process

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What is CEQA?

California

Environmental

Quality

Act

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.

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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 process

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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 activity

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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).

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Lead Agency and Responsible Agency interactions during the CEQA Process

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Types of CEQA Documents

Notice of Exemption Initial Study Negative Declaration Mitigated Negative Declaration Environmental Impact Report

Addendum, Supplemental and Subsequent CEQA documents

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Exemptions

Projects 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)

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 SCH

The NOE must contain the Project information, location, exemption type (categorical, statutory) and reasons why the Project is exempt

Applicants 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 document

Pre-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 process

Each 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 document

Lead 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) review

SCH 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 ProgramTitle VI of the Clean Water Act, establishes the CWSRF Program, and Section 1452 of the Safe Drinking Water Act establishes the Drinking Water SRF

Funds projects associated with: Traditional Clean Water Act (CWA) Section 212 POTWs

and the associated infrastructure Nonpoint source management programs (Section 319

CWA) Development 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:

1. Environmental Review

2. Technical Review

3. Credit Review

4. Legal Review

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_____________________________________________________________________________________________________________________

1Policy for Implementing the Clean Water State Revolving Fund For Construction of Wastewater Treatment Facilities, Amended March 2009

Why do we use CEQA instead of NEPA? Its NEPA-like, but it is not NEPA

The 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 16

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The ERU’s Role

Under 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.

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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?

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Required CEQA Documents Notice 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

1. Draft and Final IS/ND or IS/MND2. Resolution adopting the IS/ND or IS/MND, any applicable

Mitigation Monitoring and Reporting Program (if using IS/MND), and making CEQA findings

3. Comment letters and response to comments4. Notice of Determination filed with the county clerk(-s) and OPR5. Supporting documents (including permits, BOs, etc.)

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Required CEQA Documents, continued.

Environmental Impact Report (EIR)

1. Draft and Final EIR2. Resolution certifying the final EIR, adopting an MMRP

and an applicable SOC, and making CEQA findings3. Comment letters and response to comments4. Notice of Determination filed with the local county

clerk(-s) and OPR5. Supporting documents (including permits, BO, etc.)

Required CEQA Documents, continued

Addendum, Supplemental and Subsequent CEQA documents Required 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. Commonplace 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. ControversialNon-Controversial (adjective): Not subject to controversy

Controversy (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 Consider

Projects 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, SHPO

CWSRF Program Federal Environmental Cross-cutters

40 CFR Section 35.3145 establishes the environmental requirements under the CWSRF regulations

The State Water Board is required to comply with federal environmental laws and regulations when it funds a project

The 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 USEPA1 and the Cross-cutting Federal Authorities Handbook2

_____________________________________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

2. 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

1. Section 7 of the federal Endangered Species Act

2. Section 106 of the National Historic Preservation Act (includes Archaeological and Historic Preservation Act)

3. Federal Clean Air Act

4. Protection of Wetlands, Executive Order No. 11990, amended by Executive Order No. 12608 (1997)

5. Migratory Bird Treaty Act

6. Magnuson-Stevens Fishery Conservation and Management Act

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

8. Farmland Protection Policy Act

9. Coastal Zone Management Act

10. Wild and Scenic Rivers Act

11. Safe Drinking Water Act, Sole Source Aquifer Protection

12. Coastal Barriers Resources Act

13. 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 habitat Must 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 Definitions

Threatened: Any species likely to become endangered in the foreseeable future

Endangered: 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:

1. No Effect

2. May Affect, But is Not likely to Adversely Affect (NLAA)

3. 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, continuedMay 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 200832

Section 7 Federal ESA, continued

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

Beneficial 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, continuedEffects Analysis includes an assessment of: Direct and Indirect effects (includes stressors and benefits) of:

1. A federal action

2. An applicant’s action

3. Interrelated or interdependent actions

4. Conservation 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, continuedInformal 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:

1. Likely to Jeopardize the Continued Existence

2. Not Likely to Jeopardize the Continued Existence

Critical Habitat:

3. Likely to Destroy or Adversely Modify

4. Not Likely to Destroy or Adversely Modify

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Section 7 Federal ESA, continuedWhat 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 area

Review recent focused and Biological Surveys for the project area. Biological Survey should include: 1. Location and Project description

2. Vegetation and wildlife

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

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

5. Identification of designation critical habitat and known species range

6. Analysis of potential species impacts

7. Identification of measures to reduce, avoid and minimize impacts

8. Any recommendations (including initiating USFWS consultations)

9. References , literature reviewed, expert opinion etc.

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Section 7 Federal ESA, continuedInformal consultation: ERU staff must develop a letter requesting Section 7 Informal Consultation with the

USFWS . The letter should include:

1. 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

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

3. Project location and description

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

5. Analysis on project impacts to species and designated critical habitat

6. Measures taken to reduce, avoid or minimize impacts

7. Reasons for the Section 7 ESA finding

8. 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, continuedFormal consultation (LAA): ERU staff must coordinate with the USEPA for the USEPA to initiate

formal Section 7 ESA consultation with the USFWS and NMFS ERU 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:1. Background information on the CWSRF Program and the USEPA requirements under ESA

2. Section 7 ESA findings for each species (No Effect; May Affect but NLAA, May Affect but LAA)

3. Project location and description

4. Vegetation and wildlife species

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

6. Analysis on project impacts to species and designated critical habitat

7. Measures taken to reduce, avoid or minimize impacts

8. Reasons for the Section 7 ESA finding

9. 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 Officers

USEPA 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.

Must 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: 1. Curbing four major threats to the environment and human health: acid rain, urban air

pollution, toxic air emissions, and stratospheric ozone depletion.

2. Establish a national operating permits program (via through local Air Management Districts) to make the law more workable, and strengthened enforcement.

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

4. 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 Air Management 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 WetlandsExecutive Order No. 11990 (1977),

amended by Executive Order No. 12608 (1997)

USEPA’s “no net loss of wetlands” policy

National 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 permit

Same 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:

1. A Preliminary Wetland Delineation Report

2. Biological surveys

3. Field verification report done by the USACE

4. USACE Permit application

5. 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, 1918Prohibitions 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.”

USFWS 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 loss

8 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 EFH

If 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 plain

Public review required (CEQA review process) for projects occurring in flood plain Evaluate potential measures to avoid adversely affecting the flood plain, including

identify alternative locations outside the flood plain If alternative locations are infeasible, must identify measures to minimize risk of flood

damage to or within the flood plain

Must:

1. 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).

2. 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.

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

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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:

1. Unique and Prime farmland

2. Farmland of local and statewide importance

3. Farmland under a Williamson Act Contract (important farmland)

ERU staff must:

1. 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.

2. 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.

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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

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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) .

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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.

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Wild and Scenic Rivers Act, 1968 As of today, 22 waterbody sections have a wild and scenic river designation in CA1. Amargosa River

2. American River (Lower)

3. American River (North Fork) under BLM

4. Bautista Creek

5. Big Sur River

6. Black Butte River

7. Cottonwood Creek

8. Eel River

9. Feather River

10. Fuller Mill Creek

11. Kern River

12. Kings River

13. Klamath River (USFS)

14. Merced River under BLM

15. Palm Canyon Creek

16. Piru Creek

17. San Jacinto River (North Fork)

18. Sespe Creek

19. Sisquoc River

20. Smith River

21. Trinity River

22. Tuolumne River under BLM

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56http://rivers.gov/wildriverslist.html

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

Prevent contamination of aquifers that are the sole source of drinking water for a community

Supplies at least 50% of the drinking water consumed in the area overlying the aquifer

These 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

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

Must determine if project is located in a USEPA designated sole source aquifer

Applicant 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

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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

Should 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).

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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:

1. Create new disproportionate impacts on minority, low-income, or indigenous populations;

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

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

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Documenting environmental findings

Once both adequacy and completeness are met, ERU staff should begin preparing:

o Environmental Review Summary (ERS) o Environmental language for the Facilities Plan Approval (FPA) and Preliminary Funding Commitment (PFC) o Exhibit D for special environmental conditions of the applicant’s CWSRF financing agreement

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Documenting environmental findings

The Environmental Review Summary:

o 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

o 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.

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

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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.

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

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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.

Documenting environmental findings

Exhibit D Special Environmental Conditions

Conditions 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: Compliance 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)

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ERU - Environmental Databases and File Organization Must update databases and project tracking documents1. Loans and Grants Tracking System (LGTS) – Requires continuous

updating due to public reports

2. LGTS tracking forms – ERU staff must complete a LGTS form for each project

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

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

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

Useful databases and document references: 6. CEQAnet database (CEQAnet.ca.gov)

7. CWSRF Priority List

8. FAAST system

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Questions?

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