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The District is applying for permits or other forms of regulatory approvals for those activities included in the SMP that are under the jurisdiction of the California Department of Fish and Game (CDFG), San Francisco and Central Coast Regions of the California Regional Water Quality Control Boards (RWQCB), San Francisco Bay Conservation and Development Commission, U.S. Army Corps of Engineers (Corps), U.S. Fish and Wildlife Service (FWS) and U.S. National Marine Fisheries Service (NFMS). This chapter describes the jurisdiction of these agencies, their policies relevant to the SMP, current or prior permits or approvals for maintenance with these agencies, and the parallel process which the District is currently participating in to gain new regulatory approval. In this chapter, the Program EIR demonstrates project consistency with the District's own adopted policies, with the requirements of these other agencies, and with the adopted General Plans of the numerous cities and other local agencies. Table III-1 lists the agencies that have jurisdiction over the project. Table III-2 indicates which SMP activities are regulated by each agency. References to tidal and freshwater streams in this section are meant to be essentially equivalent to the Corps' jurisdiction to the mean high water line under the Rivers and Harbors Act, and the ordinary high water line under the Clean Water Act (CWA), respectively. The SMP was developed with the advice of stakeholders including representatives of most of these agencies. The BMPs and mitigation incorporated into the SMP are intended to meet agency requirements. Some of the information for this section was derived from a technical memorandum developed during the stakeholder process (Germany and Roessler, 1999). A. LOCAL Santa Clara Valley Water District The District is a special purpose governmental agency with a Board composed of five publicly elected and two appointed Directors and authority to levy assessments to fund its activities. The SCVWD jurisdiction and authority is generally independent of the jurisdiction and authority of other local public agencies, including the general purpose governments, the cities and the County of Santa Clara. The District does not have the authority to directly control the land use actions of the county or cities even though they may affect District responsibilities for flood protection and maintenance. The District is subject to regulation by federal and state agencies, including regional agencies created by the state such as the Regional Water Quality Control Board. a. District Jurisdiction 1) Ordinance 83-2 The District is responsible for flood protection within local jurisdictions, to the limits defined in District Ordinance 83-2. Under Ordinance 83-2, construction and maintenance, or acceptance and maintenance, of flood protection works and control of flood and storm waters by the District are subject to the following:
Table III-1 Federal Agencies with Regulatory Oversight
Table III-2 Agency Permit Jurisdiction Over SMP Activities
2) Ends Policies The District's Ends Policies were adopted by the Board of Directors on November 21, 2000, and are as follows: 1.1 There is a healthy and safe environment for residents and visitors. 1.2. There is reduced potential for flood damages.
2.0. There is enhanced quality of life in Santa Clara County. 2.1. Watersheds, streams, and the natural resources therein are protected and when appropriate enhanced or restored.
b. Ownership and Easements All creeks, channels and floodways that are within the District's boundaries are subject to the District's jurisdiction, but the ability of the District to perform maintenance activities may be affected by District ownership, easements, or right to access. The District generally owns either a fee simple interest or an easement in the channels; however, the right of way on a creek varies greatly. Land rights on natural channels usually include 20 feet from the top of the bank. On modified channels, right of way is usually several feet outside of the maintenance road. The District also has jurisdiction and generally land rights over its water supply and conveyance facilities including canals. Access to and along a creek may be limited by land parcelization. For example, the center line of creeks are often the residential property line boundaries. Some of these properties have maintenance/construction easements within which the District can operate. If there is suitable access to these private properties with easements, then the District can perform routine maintenance activities. However, if a private property adjacent to a creek (or containing, within its boundaries, a portion of a creek) does not have an easement in which the District can operate, or does not have suitable access, no maintenance work can be performed by the District (S. Tippets, SCVWD, personal communication). a. Restrictions on Actions by Others Under Section 6 of Ordinance 83-2, the District prohibits all persons or agencies from performing the following activities without first obtaining a permit from the District:
b.The Effect of Surrounding Land Use on Routine Maintenance The changes in land use over the past 100 years have had a major effect on the hydrology of channels within the District. The changes in the Valley's land uses, first from open space to agricultural, then increasingly to urban, have significantly altered the stability of all the channels, causing sediment aggradation and bank degradation. Agriculture was responsible for the straightening and re-channelization of many creeks, as well as for large-scale removal of native riparian vegetation within their floodplains. These changes altered hydrology and flow, which affected sediment transport and induced instability. The initial effects of agriculture were accelerated by the urban development whose effects have included further straightening and channelization within levees and concrete walls, construction of bridges and culverts, and encroachment of developments into natural floodplains. Encroachment into original alluvial flood plains has caused downcutting and overwidening of channels and oversteepening of their banks. These effects have created the unstable conditions which generate the need to regularly remove sediment and install artificial bank stabilization, as described in the Geomorphology chapter. While much of the County is substantially urbanized, the East and
South Zones have substantial agricultural and open space lands with
the potential for further development. Wherever there is further development
As an early effort in this direction, in 1979, the District printed a brochure challenging local developers to use different subdivision design techniques which would eliminate some of these problems. The most important technique identified in this brochure was the use of parallel streets in new subdivision design. Streets that are constructed parallel to the creek channel offer a visual link and physical link of the channel to the new community, which makes the channel an amenity instead of just a utility corridor sandwiched between houses. Parallel streets may offer more flood protection than placing houses at the top of the channel because they provide a floodway for stormwater which protects the adjoining properties from flooding. This type of alternative land development has been used successfully in areas adjacent to some of the District lands, but this concept is relatively new. Not all of the jurisdictions within the District's service area have made implementation of alternate subdivision design a priority. Some jurisdictions have listed alternate development design in the goals and policies of the General Plan, but if there are no mechanisms to implement the goals and policies, or if adherence to policies is not part of the development review process, the developer may proceed with business as usual. e. Joint Use Agreements Between the District and other Public Agencies The District supports joint use activities. District Ordinance 83-2, Section 8 states: "The use of District Projects jointly with a public agency, subject to conditions established by resolution of the Board, is favored whenever such joint use is possible and conformable to the District's public duty." The District has Joint Use Agreements with many local jurisdictions. However, other than these Joint Use Agreements, there are no binding documents or policies that require the District to comply with the stated goals and policies of each city and the County. f. SMP Consistency The SMP is consistent with existing District policy. Stream maintenance is only done on land where the District has ownership or other rights of access so there is no direct effect on non-District land. The Best Management Practices (BMPs) proposed as part of the SMP provide specific implementation for the Ends Policies. The SMP is limited to management of the existing stream and canal systems and existing channel improvements; its scope does not extend to capital improvement projects. New capital projects will be incorporated into the SMP and will be subject to the conditions that are part of this document, including BMPs and reporting requirements. The SMP is necessarily reactive to the functional needs of the constructed facilities. B. STATE 1.California Department of Fish and Game (CDFG) a. CDFG Laws, Policies and Jurisdiction The mission of CDFG is to manage California's diverse fish, wildlife, and plant resources, and the habitats upon which they depend for their ecological values and for their use and enjoyment by the public. Section 1601 of the California Fish and Game Code provides the authority for CDFG to require Streambed Alteration Agreements or negotiate Memorandum of Understanding (MOU) for routine maintenance activities with governmental agencies if a project proposes to "divert, obstruct, or change the natural flow or bed, channel, or bank of any river, stream or lake" which provides fish or wildlife values. Section 1601 gives CDFG authority to impose restrictions on the District maintenance work in streams in order to protect associated fish and wildlife resources. CDFG staff usually interprets this code to include construction work and grading in perennial streams, but also in intermittent streams and other types of activities such as management of stream vegetation including the use of herbicides. At times, local CDFG wardens and biologists have interpreted this provision to include flood protection structures such as overflow channels which are adjacent to but not within the original banks of the natural stream. A Streambed Alteration Agreement usually applies to a specific activity that occurs one time at a specified site, and usually has an expiration date. A MOU can cover a broader range of maintenance activities at many locations. Section 5650 of the California Fish and Game Code generally prohibits discharge of pollutants or substances that might harm fish, plant life, or bird life. Section 2050 of the Fish and Game Code prohibits the import, export, take, possession, purchase, or sale of any endangered or threatened species, unless authorized through an incidental take permit. The CDFG Commission's Wetlands Resources Policy states that projects which impact wetlands are damaging to fish and wildlife resources if they result in a net loss of wetland acreage or wetland habitat value. The CDFG's Wetlands Policy establishes the following order of priority in providing wetland mitigation: in-kind and on site; in-kind and off site; out-of-kind and on site; and least preferably, out-of-kind and off site. In-kind refers to a duplication of the physical nature of the impacted wetlands. Out-of-kind refers to the creation of different types of wetlands than those impacted. b. Existing CDFG MOUs The District currently has two MOUs with CDFG covering routine stream maintenance activities. MOU 331-89 applies only to streams that have been modified as flood protection channels, and is often referred to as the MOU for improved channels. It authorizes control of vegetation; removal of silt, debris, and obstructions; and repair of existing rock or concrete type bank protection structures. MOU 331-89 specifies which improved channels are covered and which activities are authorized in each creek section. Conditions are set for some activities such as diverting surface flow around equipment working in the channel, and clearing vegetation in strips in alternating years to retain wildlife habitat. MOU 1408-90 applies to streams that have not been modified by an engineered project as flood protection channels, and is often referred to as the MOU for unimproved channels. It authorizes removal of debris, bank protection, and vegetation management activities in specifically identified stream reaches. In addition to authorizing repair of existing erosion control projects, this MOU authorizes new bank protection projects. New bank protection work can include rock or gabions, but not sacked concrete, and must be less than 100 lineal feet and extend no further than from the toe of a slope to a maximum of 6 feet vertical above the channel invert. Standard BMPs incorporated in this MOU are the diversion of surface flow around work areas, minimization of vegetation removal, reseeding of areas disturbed by equipment, and protection of trees with a diameter greater than six inches at breast height. These MOUs currently allow the District to proceed with routine maintenance work without applying for individual Streambed Alteration Agreements for each project. Work conducted under the MOUs is reported on a quarterly basis to CDFG. For routine maintenance work that is either a different activity than specified in these MOUs or in a section of channel not specified in these MOUs, the District currently applies for Streambed Alteration Agreements. c. New CDFG MOUs for the SMP The District is currently planning to negotiate revisions to these MOUs to cover the relevant activities and locations of work in the Stream Maintenance Program. As a basis for the negotiations, the District has submitted the Joint Aquatic Resource Permit Application for the San Francisco Bay Area (JARPA) and is requesting that CDFG approval for the SMP be granted for a period of 10 years. For the purposes of the SMP, it is assumed that Section 1601 applies to bank protection; sediment removal; all vegetation management activities which occur in the channel; and those upland vegetation management activities which occur along the inside levee face, or inside stream or canal bank, or on the levee top. Section 1601 also applies to minor maintenance activities that occur within the top of banks. All the streams as well as canals within the District's jurisdiction are within the jurisdiction of CDFG's authority under Section 1601. It is the District's interpretation of applicable regulations that CDFG does not have jurisdiction over upland vegetation management which occurs outside of levees or stream or canal banks. d. SMP Consistency The MOUs that are currently being revised in relation to the SMP and Corps Permit (JARPA) will include the Best Management Practices and the compensatory mitigation package listed in the SMP to avoid or reduce impacts. The issuance of the MOUs to the District by the CDFG indicates that the SMP, as described in the MOUs, is consistent with stated CDFG policies. 2. California Regional Water Quality Control Boards and State Water Resources Control Board a. RWQCBs Laws, Policies and Jurisdiction The RWQCBs implement policies developed by the State Water Resources Control Board (SWRCB). The District is within the jurisdiction of two RWQCBs: the San Francisco Bay Region and the Central Coast Region. The San Francisco Bay Region has jurisdiction throughout the San Francisco Bay. Within the District's jurisdiction, this includes all those watersheds that drain to San Francisco Bay, primarily the Guadalupe and Coyote Rivers, but also many other smaller streams and tributaries. In this document, the area referred to as the Santa Clara Basin or North County is equivalent to the San Francisco RWQCB Region. The Central Coast RWQCB has jurisdiction along the central coast of California, which in the District's jurisdiction includes all those watersheds that drain to Monterey Bay, primarily the Llagas, Uvas, and Pajaro streams. In this document, the area referred to as the Pajaro River Basin or South County is equivalent to the Central Coast RWQCB Region. The mission of the RWQCBs is to protect the beneficial uses of surface waters and groundwaters of their region. Each RWQCB develops a Basin Plan (also known as a Water Quality Control Plan) which identifies the beneficial uses of water bodies within their region, and establishes water quality objectives and implementation programs to protect those areas. Much of the actual review and requirements for permits related to the SMP are developed by the RWQCBs, therefore this discussion focuses on them rather than the SWRCB. Under the Porter-Cologne Act, anyone proposing to discharge materials that could affect water quality (including discharges of fill or other materials to wetlands) may need to meet project specific "waste discharge requirements" from the RWQCBs. In addition, any applicant for a Section 404 permit under the federal CWA from the U.S. Army Corps of Engineers for an activity which may affect water quality also must apply to the appropriate RWQCB for Water Quality Certification under Section 401 of the CWA. The RWQCBs can waive Water Quality Certification or discharges that will not violate water quality standards. Generally, projects can be regulated by both the Porter-Cologne Act and the CWA. In the past, RWQCBs have often issued a Water Quality Certification and waived the need for a waste discharge requirement. Recently, the San Francisco RWQCB has required waste discharge requirements for projects that do not fall within the jurisdiction of the Corps under the CWA. The RWQCBs water quality certification must occur prior to the issuance of a Section 404 permit by the Corps. The RWQCBs, through the SWRCB, have jurisdiction over any water, surface or underground, including saline waters, within California (California Water Code section 13050[e]). This jurisdiction extends to all waters of the State and to all waters of the United States (under the Porter-Cologne and CWAs, respectively). The San Francisco RWQCB specifically states that wetlands, marshes, and mudflats are within the definition of State waters. The California Wetlands Conservation Policy (Executive Order W-59-93) establishes State guidelines for wetland conservation. The primary goal for this Executive Order is to ensure no overall net loss of wetlands and to achieve a long-term net gain in quantity, quality, and permanence of wetland acreage in California. In general, the RWQCBs requires that any application proposing loss of wetlands also provide mitigation within the same section of the region, wherever possible, so that there will be no net loss of wetland acreage and no net loss of wetland value when the project and mitigation are evaluated together. The San Francisco Bay Water Quality Control Plan (1995) (also known as the San Francisco Bay Basin Plan) identifies the following beneficial uses of State waters in the Santa Clara Basin: agriculture; cold freshwater habitat (particularly as they support trout and anadromous salmon and steelhead fisheries); ocean, commercial and sport fisheries; estuarine habitat; freshwater replenishment; groundwater recharge; industrial service supply; fish migration; municipal and domestic supply; navigation; preservation of rare and endangered species; recreation; shellfish harvesting; fish spawning; warm freshwater habitat; and wildlife habitat. The San Francisco Bay Basin Plan contains surface water quality objectives intended to maintain thriving aquatic ecosystems. Objectives are provided for bacteria, bioaccumulation, biostimulatory substances, color, dissolved oxygen, floating material, oil and grease, population and community ecology, pH, salinity, sediment, settable material, suspended material, sulfide, tastes and odors, temperature, toxicity, turbidity, unionized ammonia, specific chemical constituents, constituents of concern to municipal and agricultural water supplies, and radioactivity. Some of these objectives are specific numerical limits, whereas others are narrative. The San Francisco Bay Basin Plan also includes specific effluent limitations for some pollutants and more general discharge prohibitions in several water quality areas such as turbidity and toxicity. The Central Coast Regional Water Quality Control Plan identifies similar beneficial uses for the Pajaro River hydrologic unit as noted above for the San Francisco Bay Region. Likewise, it contains similar water quality objectives. There are specific water quality objectives for the Pajaro River at Llagas Creek, which is within Santa Clara County. b. Santa Clara Valley Water District Nonpoint Source Control Program The District's activities are subject to regulation by the RWQCB for quality of stormwater discharge. A municipal National Pollution Discharge Elimination System (NPDES) permit covers non-point sources and dischargers. The NPDES permit for stormwater discharges grew out of a concern in the mid-1980's that southern San Francisco Bay (south of the Dumbarton Bridge) was an impaired water body because of pollution by nine metals and selenium. It was determined by monitoring that urban stormwater runoff was a greater contributor to this pollution than was discharge from wastewater treatment plants. In 1989 the SWRCB enlisted the District, Santa Clara County and 13 cities to develop individual control strategies to address the urban stormwater pollution problem. The NPDES permit for stormwater runoff was to serve as the individual control strategy for the District. Included in the permit was a Stormwater Management Plan, the objectives of which were to reduce stormwater-borne pollutants at their source. Measures include:
The NPDES permit was adopted by the RWQCB in June 1990 and revised and re-issued in 1995 and again on February 21, 2001. In 1993, evaluation of the Individual Control Strategies showed that the south Bay water quality was still impaired. At that time, the RWQCB issued a Cease and Desist order to implement more stringent controls including a new multi-agency Stormwater Management Plan to address all pollutants, including USEPA criteria pollutants in addition to metals. In 1994, the stormwater management plan was to be developed with an emphasis on watershed management and reduction of heavy metals. This plan was accepted by the RWQCB in August, 1995. The plan was updated in 1997 as the "Urban Runoff Management Plan." The plan includes dates for compliance and performance standards for activities that each agency conducts to prevent nonpoint source pollution within their jurisdiction. The Urban Runoff Management Plan, adopted in 1997, addressed District activities that could cause nonpoint source pollution, and thus be a contributor to cumulative nonpoint source pollution of waterways and the Bay. These activities include construction projects, materials handling and vehicle fueling and maintenance. The District, through its Urban Runoff Management Plan, has adopted Best Management Practices (BMPs) to minimize pollution from these sources. Examples of these BMPs include:
These activities are related to the way in which the District conducts its work at construction and maintenance sites, among other locations (see the discussion of the CDFG MOUs). c. Total Maximum Daily Loads (TMDL) Section 303(d) of the Federal CWA, requires States to identify waters that do not meet water quality standards after applying effluent limits for point sources other than POTWs that are based on the best practicable control technology currently available and effluent limits for POTWs based on secondary treatment. States are then required to prioritize waters/watersheds for total maximum daily loads (TMDL) development. States are to compile this information in a list and submit the list to USEPA for review and approval. This list is known as the 303(d) list of impaired waters (303(d) list).
TMDLs are documents that describe a specific water quality attainment strategy for a water body and related impairment identified on the 303(d) list. TMDLs may include more than one water body and more than one pollutant. The TMDL defines specific measurable features that describe attainment of the relevant water quality standards. TMDLs include a description of the total allowable level of the pollutant(s) in question and allocation of allowable loads to individual sources or groups of sources of the pollutant(s) of concern.
The SWRCB and RWQCBs have ongoing efforts to monitor and assess water quality, to prepare the Section 303(d) list, and to develop TMDLs. The State's most recent 303(d) list was approved in 1998. California's current Section 303(d) list contains 509 water bodies, many for multiple pollutants. Impaired waterbodies in Santa Clara County include:
Development of TMDLs requires participation by an assigned stakeholder group. In 1999 the RWQCB and the District agreed that the previously established Watershed Management Initiative (WMI) would serve as the stakeholder group for TMDLs in South SF Bay, San Fransquito Creek and the Guadalupe River watershed. Other TMDLs in other locations have other assigned stakeholder groups. d. Prior RWQCBs Permits In recent years, the District has obtained water quality certifications from the RWQCBs at the same time it obtained Corps permits. Usually the District organized all its projected routine maintenance work for each year's summer construction season in one or a few packages and obtained one or a few permits covering the combined activities. Water quality certifications may have been simultaneously issued or waived for these packages. Separate packages were submitted for activities that did not require Corps permits but did qualify for waste discharge requirements. e. New RWQCB Permits for the SMP To obtain approval for activities under the SMP, the District is submitting the JARPA form to the San Francisco RWQCB for water quality certification, and Form WD200 for waste discharge requirements. To the Central Coast RWQCB, it is submitting a Water Quality Certification application and Form WD200. The District is requesting that RWQCB approvals of the SMP be valid for a period of 10 years. For the purposes of the SMP, it is the District's interpretation of the applicable regulation that the RWQCBs can require water quality certification for these types of activities in streams: bank protection, minor fill activities such as in-kind repair of structures, and temporary cofferdams and access ramps. It is also interpreted that RWQCBs can apply waste discharge requirements for these types of activities throughout the District's jurisdiction for streams and canals because of their potential for affecting water quality: sediment removal; bank protection; minor work such as trash and debris removal, in-kind repair of levees and structures, and cleaning of culverts; and temporary cofferdams and access ramps. Recently, the San Francisco RWQCB has suggested that they may also apply waste discharge requirements to vegetation management activities that occur in streams and canals, particularly herbicide application. It is the District interpretation of applicable regulations that upland vegetation management activities are not regulated by the RWQCB. f. SMP Consistency 1) Water Quality The procedures used by the District to control pollution from its own vehicles and equipment used in maintenance activities are the BMPs developed for compliance with the Urban Runoff Management Plan/NPDES permit. The control of stormwater pollution from other nonpoint sources not directly under the District's control or jurisdiction are also regulated by the RWQCB through the municipal NPDES permit. Since these sources are not within the District's control or jurisdiction, but are under the land use authority of the cities or County, the District cannot directly control these sources or their abatement, yet still has outreach and preventive education. Beyond vehicle and equipment operation, the actual maintenance activities -- sediment removal, vegetation management and bank protection -- do not contribute additional nonpoint source pollutants into channels, but may cause hazardous effects by releasing toxins already present in the sediment into the water column, or by moving contaminated sediments from one place to another. In these cases, the District is not responsible for the original presence of the pollutants in the stream, but the disturbance of the sediments may increase the chances that the pollutants will cause harm to aquatic life. This issue is discussed in Chapter IV-D-Hazards, Public Health and Safety. 2) Wetland Conservation As stated in Chapter II, Project Description, the SMP has the potential to significantly affect the ecological and biological environment of Santa Clara County by cumulatively affecting wetland habitats, including tidal and non-tidal wetlands and riparian habitats. Though the Best Management Practices listed in the SMP would reduce these impacts, the District acknowledges that it would not be less-than-significant, if compensatory mitigation were not provided by the District to offset significant residual impacts that cannot be avoided through implementation measures or BMPs. SMP provides a series of specific wetland and other, non-worksite mitigation that are proposed within the same section of the region to offset cumulative maintenance impacts. The rationale and the scope of the measures is described in SMP Chapter 5. 3. San Francisco Bay Conservation and Development Commission a. BCDC Laws, Policies and Jurisdiction Under the 1965 McAteer-Petris Act, the Bay Conservation and Development Commission (BCDC) is responsible for maintaining and carrying out the provisions of the San Francisco Bay Plan. The Bay Plan is a comprehensive plan which has as its goal the conservation of the water of San Francisco Bay and regulation of development along its shoreline. The policies of the Plan include prevention and preclusion of fill in the Bay, promotion of public access, and reservation of spots on the Bay for water related pursuits. A permit is required by BCDC for construction within its jurisdiction (Bob Batha, BCDC, personal communication). There are four types of areas over which the Commission has jurisdiction: the Bay (which includes tidal waters up to 5 feet Mean Sea Level [MSL] and a 100-foot shoreline band); waterways (certain tidal portions of creeks and a 100-foot shoreline band); the 100-foot shoreline band itself and salt ponds (which includes both levees and ponds). BCDC also comments through the Corps on projects proposed within diked historical baylands. b. Existing BCDC Permits BCDC renewed Permit No. M77-113 on July 28, 2000 to cover fill activities of the SMP that occur in or near tidal waters of San Francisco Bay. This permit is effective until June 1, 2005. The District currently does not need to reapply for a new permit. BCDC has jurisdiction over sediment removal and minor fill activities in tidal streams under the SMP. c. SMP Consistency The proposed BMPs and compensatory mitigation program as listed in the SMP are part of the new BCDC Permit. No new fill in the bay will result from Stream Maintenance activities. The exception may be deposition of fill in tidal mitigation site Pond A-4, which would obtain appropriate regulatory clearances prior to any fill activities. However, the SMP contains sediment removal projects that will remove wetland vegetation in tidal channels. The SMP includes a proposed mitigation package for significant residual impacts of the Stream Maintenance Program including a substantial investment (estimated $38 million over the next 10 years) toward the protection and enhancement of the watersheds and streams of Santa Clara County. As stated in Chapter II, Project Description, actions proposed to be taken include restoration and protection of tidal wetlands in the lower watershed (BCDC jurisdiction). These actions will be coordinated to whatever degree possible so that multiple functions of the natural systems are provided or enhanced (see SMP Table 5-5, Stream Maintenance Program, Proposed Mitigation Program). C. FEDERAL 1. United States Army Corps of Engineers a. Corps Laws, Policies and Jurisdiction The Corps works to provide protection of the nation's aquatic environment through the regulation of activities in waters of the United States under the federal Rivers and Harbors Act as well as the CWA. Section 10 of the Rivers and Harbors Act of 1899 (33 USC 401, et seq.) requires permits for any work or structures in navigable waters of the United States, including wetlands within or adjacent to these waters. Both dredging and filling are regulated activities under the act. Navigable waters are defined as those waters that are subject to the ebb and flow of the tide, or are presently, have been, or may be used for transport of interstate or foreign commerce. The CWA (33 USC 1251-1387; Act of June 30, 1948 as amended) is a broad statute with the goal of maintaining and restoring waters of the United States. Among many provisions for the control of water pollution, the act also requires permits for filling of or discharge of dredged materials to waters of the United States. Section 404 of the CWA establishes a permit program for the discharge of fill or dredged material into waters of the United States. Waters of the United States include navigable waters, interstate waters, and all other waters where the use or degradation or destruction of the waters could affect interstate or foreign commerce, tributaries of any of these waters, and wetlands that meet these criteria or that are adjacent to any of these waters or their tributaries. Federal Executive Order 11990 regarding Protection of Wetlands states that federal agencies should avoid impacts to wetlands, and it calls for a no net loss of wetlands. The Presidential Wetland Policy (1993) and Reaffirmation (1995) includes principles for wetland protection. Those relevant to the SMP are:
Historically, the Corps has required compensatory mitigation for significant losses of wetlands that cannot be avoided. Compensation ratios for replacement habitat have had a significant range. b. Prior Corps Permits Recently, the District has been applying on an annual basis to the Corps for individual permits for routine maintenance work, or providing notification, when required, for maintenance activities that qualify for Nationwide Permits, including Nationwide Permits 3 for Maintenance, 13 for Bank Stabilization, and 31 for Maintenance of Existing Flood protection Facilities. Nationwide permits cover types of activities which result in minimal impacts to aquatic resources if specified conditions are met. Often these annual applications were prepared as packages of several similar projects. c. New Corps Permit for the SMP To obtain approval for activities under the SMP, the District is submitting the JARPA form to the US Army Corps of Engineers and is requesting that approvals for the SMP be granted for a period of 10 years. It is the District's interpretation of applicable regulations that Corp permits are required for sediment removal in tidal streams; bank protection in all streams; temporary construction fill and access in all streams; and minor activities consisting of in-kind repair of levees, culverts and similar structures in all streams, and cleaning of culverts and similar structures in tidal streams. It is interpreted that the Corps does not regulate sediment removal in freshwater streams; channel or upland vegetation management; or any activities in canals. d. SMP Consistency As stated in Chapter II, Project Description, and listed in the discussion on consistency with RWQCB policies, the SMP has the potential to significantly affect the ecological and biological environment of Santa Clara County by cumulatively affecting wetland habitats, including tidal and non-tidal wetlands and riparian habitats. The Corps permit that is currently being prepared concurrent with the SMP will include the Best Management Practices and the compensatory mitigation package listed in the SMP to avoid or reduce these impacts. The issuance of the Permit to the District by the Corps indicates that the SMP, as described in the Corps permit, is consistent with stated Corps policies. 2. Endangered Species Act (ESA): U.S. Fish and Wildlife Service and National Marine Fisheries Service The 1973 Endangered Species Act (ESA), as amended, establishes a broad public and federal interest in identifying, protecting, and providing for the recovery of threatened or endangered species. The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) are charged with implementing and enforcing the ESA. USFWS has authority over terrestrial and continental aquatic species; NMFS has authority over species that spend all or part of their life cycle at sea, including coho and chinook salmon and steelhead trout (see IV.B.4, Biology, Special Status Species). Both agencies are involved in District stream maintenance through the provisions of the ESA and several particular sections of the ESA affect the SCVWD. USFWS oversees the implementation of the Migratory Bird Treaty Act of 1918 which prohibits the destruction or possession of individual birds, eggs, or nests in active use without a scientific collecting or special purpose permit from the Service. a. Section 6, Recovery Planning Section 6 requires the agencies to determine how threatened or endangered species can be recovered to the point where they no longer require listing under the Act. The USFWS has published recovery plans for several species potentially affected by the SMP. NMFS has also initiated recovery planning within the Central California Coast planning area which covers the SCVWD. b. Section 7, Consultation Section 7 of the ESA directs Federal agencies to use their legal authorities to further the purposes of the Act by carrying out conservation programs for listed species. Section 7 requires these agencies to ensure that any actions (e.g., development projects) they fund have permit authority over, or carry out are not likely to jeopardize the survival of a listed species. If a Federal agency finds that one of its activities may affect a listed species, it is required to consult with either the USFWS or NMFS to obtain a biological opinion describing the project's effects on any endangered or threatened species or their critical habitat. For species that are proposed for listing and for which jeopardy is found, Federal agencies are required to confer with the USFWS or NMFS , although the results of such a conference are not legally binding. Because the Corps is a federal agency with permit authority over the SCVWD, it is required to consult under Section 7 and comply with any conditions that consultation may place on the federal permit. c. Section 9, Prohibition of Take Section 9 of the Endangered Species Act prohibits the take of listed animals, with "take" defined as: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a federally listed, endangered species of wildlife, or to attempt to engage in any such conduct." Section 9 applies to take of individuals and to take incidental to other activities, such as would occur if an individual were present in an area under construction. Regulations have broadened the definition of take to include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or shelter (50 CFR Section 17.3). Because several protected species occur in the activity area of the SMP, the District is prohibited any activities which may result in take unless allowed under the terms of a Section 7 consultation or a Section 10(a) permit.. d. SMP Consistency As stated in Chapter II, Project Description, and listed in the discussion on consistency with RWQCB policies, the SMP has the potential to significantly affect the ecological and biological environment of Santa Clara County by cumulatively affecting wetland habitats, including tidal and non-tidal wetlands and riparian habitats. Though the Best Management Practices listed in the SMP would reduce these impacts, the District acknowledges that it would not be to a less-than-significant, if compensatory mitigation were not provided by the District to offset significant residual impacts that cannot be avoided through implementation measures or BMPs. The SMP provides a series of specific wetland and other, non-worksite mitigation that are proposed within the same section of the region to offset cumulative maintenance impacts. The rationale and the scope of the measures is described in SMP Chapter 5.
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potential,
land use planning that takes into account fluvial processes and allows
space for the natural functions of creeks may allow development to occur
without the need for massive new flood protection projects and subsequent
maintenance work.
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