Blog - Rincon Consultants, Inc.

EPA and USACE Issue New Clean Water Rule

Posted on Wed, Jul 1, 2015

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) on June 29, 2015 published a new Clean Water Rule that updates the definition of “Waters of the United States” regulated under the federal Clean Water Act (CWA). The CWA prohibits the unauthorized discharge of pollutants (including fill material) into “navigable waters”, which are defined as waters of the U.S.  Following adoption of the CWA in 1972, the EPA and USACE issued their own definitions of waters of the U.S., and the interpretation of these definitions has been subject to litigation in several Supreme Court cases, including most recently the “SWANCC” and “Rapanos” decisions in 2001 and 2006, respectively.

The following table provides a brief comparison of the existing definition of waters of the U.S. under the current rule with the new Clean Water Rule. A more detailed discussion is provided following the table.

Table

  • The new Clean Water Rule keeps the first four categories of waters of the U.S. listed above the same as the current rule.  It also removes the fifth category that includes waters subject to jurisdiction based on a connection to interstate or foreign commerce. 
  • The rule provides new definitions and expansions for the sixth and seventh categories of the current rule.  Tributaries are defined as “characterized by the presence of the physical indicators of bed and banks and an ordinary high water mark.” The new rule also defines adjacent (“bordering, contiguous, or neighboring”) and expands the category of adjacent wetlands to all non-wetland waters within 100 feet of jurisdictional waters (categories 1 – 4, and 6, above), or within the 100-year floodplain to a maximum of 1,500 feet from the ordinary high water mark of these waters. 
  • Further, specific isolated waters, such as “western vernal pools”, are waters of the U.S. if they are determined to have a significant nexus with categories 1 through 3, above.  Other isolated waters are jurisdictional if they occur within the 100-year floodplain of categories 1 – 3 above, or within 4,000 feet of the ordinary high water mark of categories 1 – 4, and 6, and are determined to have a significant nexus with these waters.
  • The new rule also adds categories of exclusions under the current rule that meet specific criteria, including (but not limited to) certain types of ditches, artificially irrigated areas, erosional features, wastewater recycling structures, and puddles.

CleanWatersThe Clean Water Rule will go into effect on August 28, 2015, 60 days from publication in the Federal Register.  The new definitions in the rule are expected to reduce the level of case-specific determinations that occur under the current rule.  The USACE and EPA will likely issue additional guidance on implementing jurisdictional determinations under the new rule, as they did following the Rapanos decision in 2006.

Although the method of certain jurisdictional determinations may change, the Clean Water Rule is unlikely to substantially change the extent of USACE jurisdiction as it is determined under the current rule.  For example, in most situations features that would meet the criteria of the newly defined tributaries (i.e. containing physical indicators of bed and banks and an ordinary high water mark) would have likely been determined waters of the U.S. under the current rule through application of a significant nexus evaluation.  Further, the guidance that the USACE developed following the Rapanos decision in 2006 already excluded most types of ditches excavated in uplands and storm water facilities as waters of the U.S.  The new Clean Water Rule now defines that exclusion in the statute.

The new rule may expand USACE jurisdiction in the case of some features, such as non-wetland waters located adjacent to other jurisdictional features that previously didn’t have a significant nexus.  However, in California this may have positive implications for regulatory permit acquisition. USACE involvement can streamline the process of acquiring a water quality certification from the state Regional Water Quality Control Board (RWQCB).  When an applicant applies for a CWA Section 404 permit for the discharge of fill, the RWQCB must adhere to the USACE permitting timeframe for issuing a CWA Section 401 water quality certification.  If USACE jurisdiction is absent, the process of obtaining Water Board authorization for impacts to isolated waters of the state can be much longer.   

Rincon will continue to track the application of the Clean Water Rule and its implications for permitting projects. If you have questions, contact Steven J. Hongola, Senior Ecologist and Program Manager, at 805-644-4455. Click here for more information on Rincon’s wetland delineation and regulatory permitting services.

For more information on the new Clean Water Rule see the EPA’s website

Topics: United States Environmental Protection Agency, EPA, water, water quality

Actions to Address California’s Emerging Water Supply Crisis

Posted on Thu, Mar 13, 2014

By Ryan Gardner, LEED GA, ENV SP

RinconWith California entering its third year of drought conditions, Governor Jerry Brown has declared a drought emergency. 2013 was the State’s driest year on record and early projections for 2014 predict no change in sight. According to California Cooperative Snow Survey data as of March 11, the average Sierra snowpack is 69% below average, with lows in Northern California at 80% below average. Snowpack in the Sierras has historically acted as a free reservoir, storing water that can be used later in the year. The melt water from the snowpack typically represents one third of the state’s total water supply. This year’s below average snowpack is being coupled with low reservoir levels due to the past two years of dry weather. It is these conditions, in part, that prompted the Governor’s state of emergency announcement and a State Water Project prediction that for the first time in its history, “water agencies should expect a zero percent allocation of SWP water supplies due to record dry conditions and low storage levels.” A $687 Million dollar aid package has also been signed to provide aid to farmworkers and install new infrastructure to deal with the severe drought conditions.

As of January 17th, Brown has requested a 20% voluntary decrease in water use from residents, industry, and agriculture. Multiple cities throughout California have already implemented water restrictions, including Sacramento, Santa Cruz, and Long Beach - and many other agencies are preparing to enact water management plans. However, local plans may be overruled by statewide restrictions later in the season. The State Water Control Board has already stated that water right curtailments may become necessary. With more dry weather projected and the uncertain impacts of global climate change, the risks associated with water use have increased dramatically. An analysis of the 1991 California drought showed that a majority of water agencies were forced to enact water rationing programs and that many households paid significant fines and surcharges for overuse (in addition to higher standard rates) (Dixon, Moore, and Pint, 1996). The study also showed that although industrial and commercial users were largely insulated from price increases and rationing, their water use decreased by 15-20%, at least partially due to a slumping economy. In order to mitigate the possibility of water related risks, the residential, commercial, and industrial sectors have several water conservation options at their disposal.

Water Use Efficiency Measures

• Conduct a water audit to identify water use inefficiencies
• Install new water fixtures which perform better and use less water
• Install aerators on old faucets
• Investigate feasibility of greywater or water reuse
• Convert lawns to xeriscaping
• Manage storm-water runoff
• Infrastructure improvements and capital investments

Conducting a water use efficiency audit is the first step in determining the most cost effective water conservation projects. Many residential and commercial buildings can be easily retrofitted to reduce water and procure significant savings on monthly water bills. Ocean friendly gardens, greywater systems, and new fixtures are just some of the options available. Industrial, agricultural, and municipal level operations that depend on large quantities of water may need to look further to reduce their water use. Capital investments, which were not economical several years ago, may become feasible as water prices rise or water simply isn’t available. Both residential and large-scale water users can implement these water conservation projects in order to decrease environmental impacts as well as mitigate economic risks associated with the current drought conditions.

As California continues to see the effects of climate change and the population continues to grow, water has the potential to become an increasingly limited resource. If water supplies continue to decrease, costs will most likely rise in response. Enacting water conservation measures now presents an opportunity to increase water use efficiency, decrease costs, reduce risk, and be prepared for the future.

For additional information or assistance with water resource management, please contact Rincon Consultants here or request a quote using the button below.

ESA Quote

References

1. http://gov.ca.gov/news.php?id=18368 
2. http://www.saveourh2o.org/ 
3. http://cdec.water.ca.gov/water_supply.html
4. http://www.acwa.com/content/water-supply/californias-water-water-crisis
5. http://www.rand.org/content/dam/rand/pubs/monograph_reports/2007/MR813.pdf
6. http://www.ppic.org/content/pubs/report/R_512EHR.pdf
7. http://www.swc.org/in-the-news/press-releases/180-state-water-project-projected-allocation-is-zero-percent-for-first-time-in-california-history
8. http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/faq.shtml

Topics: water crisis, water audit, State Water Control Board, water rights, water conservation, water, drought, California Cooperative Snow Survey, efficiency audit, drought emergency, water management plan, water use, water supply

Complying with Different Stormwater Requirements in California

Posted on Fri, Jun 14, 2013

Rincon

In order for Rincon to meet our client’s stormwater compliance needs during construction, it is important to understand the different requirements of the state, counties, and cities in California. Under the State of California Construction General Permit (CGP), construction or demolition activity resulting in land disturbance equal to or greater than one acre (or less than 1 acre if part of a common plan of development) will be regulated with project-specific requirements. Furthermore, several counties and cities in California have adopted storm water programs with specific standards and requirements that apply in addition to the CGP requirements. The Ventura Countywide Municipal Stormwater (Ventura MS4) Permit Development Construction Program is a great example.

If a project causes soil disturbance during construction or demolition activities and falls within any of the following categories, the site will be required to comply with the Ventura MS4 Permit.

  • Small construction sites (less than 1 acre of soil disturbance)
  • Large construction sites (1 acre or greater but less than 5 acres of soil disturbance)
  • Over 5 acres of soil disturbance
  • High risk sites (determined by site location and conditions) 

All construction sites (small or large) must implement an effective combination of erosion and sediment control Best Management Practices (BMPs) to prevent erosion and sediment loss and the discharge of construction wastes for the construction site. BMP consideration is site specific and implementation will depend on site conditions and type of development. For further information regarding these BMPs please visit: Ventura County MS4 Permit, and Tables 6, 7 and 8 for BMP considerations 

Project Type/Size

Regulated Under Ventura MS4 Permit

Regulated Under CA CGP

< 1 acre

Yes

Only if part of a common plan of development that is ≥ 1 acre

≥ 1 acre

Yes

Yes

High Risk Projects

Yes

If ≥ 1 acre or part of a common plan of development that is ≥ 1 acre

 

Understanding the Permits: Permittees are regulated under the Ventura MS4 Permit for all soil disturbance during construction or demolition activities. Permittees will also be subject to California CGP regulation if the project is greater than one acre of soil disturbance or is less than one acre but part of a larger common plan of development (greater than one acre). In this case, no additional planning is necessary since the site-specific Storm Water Pollution Prevention Plan (SWPPP) that is written to satisfy the State CGP requirements and BMP implementation considerations (refer to Tables 6-8 above) for the specific construction site can also be used to satisfy Ventura County requirements.

When ensuring stormwater compliance, it is a great idea to look into other counties and cities in California that have also adopted similar stormwater programs. For instance, the City of Santa Barbara has also implemented a program called: Storm Water Management Program (SWMP), which was created to reduce the discharge of non-point source pollutants into local creeks and the ocean by implementing six minimum control measures that are outlined and required in the California CGP. For further stormwater permit and program information please visit your local government and State Water Resources Control Board websites.

Have questions about stormwater compliance? Download Rincon's Stormwater Management Flyer or contact us.

Topics: SWPPP, Ventura MS4, SWMP, BMP, stormwater, Construction, water, California Construction General Permit, Storm Water Management Program, storm, CGP, Best Management Practices