Chapter 15 - Waters of the U.S. and the State
- What Does This Topic Include?
- Waters of the U.S. and the State Decision Tree
- Laws, Regulations and Guidance
- Identification of Regulatory/Management Agencies
- Interagency Coordination
- Effects Assessments
- Information Needed for Project Delivery
- Permit Requirements
- Activities That May Occur During Construction
- Quality Control & Assurance for Biological Technical Documents
- Additional Information
This chapter discusses waters of the United States (U.S.) and the state including wetlands, lakes, rivers, and streams. Included in this chapter are laws and regulations, identification of regulatory and management agencies, the agency coordination process, assessment and reporting requirements, effects assessments, as well as information needed for project delivery pertaining to the Waters of the U.S. and the state. The term "waters" used in the following chapter includes those areas under jurisdiction of the U.S. and the State of California. For more specific information related to wetlands and waters, refer to SER Volume 3, Chapter 3, Waters of the U.S. and the State.
The term "waters of the U.S." has broad meaning and incorporates both deep-water aquatic habitats and special aquatic sites, including wetlands. Waters of the U.S. includes essentially all surface waters such as all navigable waters and their tributaries, all interstate waters and their tributaries, all wetlands adjacent to these waters, and all impoundments of these waters. For a more exact definition of Waters of the U.S. and the state, including wetlands, refer to the SER, Volume 3, Chapter 3.
- National Environmental Policy Act (NEPA)
- Clean Water Act of 1977 and 1987, 33 USC 1344 (Sections 401-404)
- Rivers and Harbors Appropriations Act of 1899 (Sections 9 and 10)
- Federal Endangered Species Act of 1973
- Fish and Wildlife Coordination Act
- Food Security Act of 1985 (Swampbuster)
- Public Trust Doctrine
- 33 CFR Part 323, U.S. Army Corp of Engineers (USACE) implementing regulations
- 40 CFR Part 230, Environmental Protection Agency (EPA) implementing regulations "Section 404 (b)(1) Guidelines"
- Advance Notice of Proposed Rulemaking by USACE and EPA
- USACE – Los Angeles District Regulatory
- USACE – San Francisco District Regulatory
- USACE – Sacramento District Regulatory
- California Environmental Quality Act
- California Endangered Species Act
- Fish and Game Code Section 1600 et seq., Streambed Alterations
- California Coastal Act of 1976
- Coastal Zone Management Act of 1972 as amended through the Coastal Zone Protection Act of 1996
- McAteer-Petris Act of 1965
- Porter-Cologne Water Quality Control Act
- Suisun Marsh Preservation Act (California Public Resources Code 29000-29612)
- National Environmental Policy Act and Clean Water Act Section 404 Integrated Process for Federal-aid Surface Transportation Projects in California (NEPA/404 MOU)
- SWANCC Decision, January 9, 2001 (PDF) (306 KB)
- Rapanos Guidance/Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States and Carabell v. United States, December 2008 (PDF) (1.23 MB)
- Rapanos v. United States, June 19, 2006 (PDF) (1.09 MB)
- Wetlands guidance on the EPA website
- USACE Regulatory Guidance Letters (RGL)
- RGL 08-03 - Minimum Monitoring Requirements for Compensatory Mitigation Projects Involving the Restoration, Establishment, and/or Enhancement of Aquatic Resources
- RGL 08-02 - Jurisdictional Determinations (superseded by RGL 16-01)
- RGL 02-02 - Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts Under the Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899
- RGL 02-01 - Inclusion of Disclaimer Statements in Jurisdictional Letters Indicating that The Clean Water Act (CWA) Jurisdictional Determinations/Delineations May Not Meet the Requirements of The Food Security Act (FSA) of 1985
- Standard Environmental Reference (Volume 3, Chapter 3, Waters of the U.S. and the State)
- Local Assistance Procedures Manual – Chapter 6
- Annotated Outlines, Standard Environmental Reference, Forms and Templates
- DOT Order 5660.1A, Preservation of the Nation’s Wetlands
- Technical Advisory T6640.8A, Guidance for Preparing and Processing Environmental and Section 4(f) Documents, October 30, 1987, Federal Highway Administration (FHWA)
- FHWA Guidance on Wetlands
- 23 CFR 777 – Mitigation of Impacts to Wetlands and Natural Habitat
- Quality Control and Assurance for Biological Technical Documents
- Environmental Document Review Checklist
- FHWA California Division "Draft" NEPA Document Checklist
- FHWA California Division "Final" NEPA Document Checklist
For more information on issues concerning wetlands and waters of the U.S., including delineation, assessment, restoration, training, and products, refer to the following web sites:
- U.S. Army Corps of Engineers Wetlands Delineation Manual, 1987 (see General Information)
- USACE Regional Supplement to the Corps of Engineers Delineation Manual: Arid West Region (Version 2.0)
- USACE Regional Supplement to the Corps of Engineers Delineation Manual: Western Mountains, Valleys and Coast Region (Version 2.0)
- A Field Guide to the Identification of the Ordinary High Water Mark (OHWM) in the Arid West Region of the Western United States (PDF) (6.1 MB)
- Recognizing Wetlands, USACE
- USACE Jurisdictional Determination Guidance
- National Food Security Act Manual, Third Edition (NRCS delineations)
- FHWA Wetlands Publications, Papers, and Reports
- U.S. EPA's Office of Water – Wetlands Laws, Regulations & Guidance
- U.S. Department of Agriculture (USDA) Natural Resources Conservation Service’s (NRCS) Wetland Science
- U.S. Fish and Wildlife Service’s National Wetlands Inventory
- Los Angeles Harbor Commission
The Department's Standard Environmental Reference (SER) focuses on statutory and regulatory requirements for environmental documents and technical studies, as well as procedures for processing environmental documentation. This reference applies to all transportation projects developed under the auspices of the Department and to all local agency highway or approvals by FHWA. Reports and documents prepared for projects on the state highway system shall adhere to the content and recommended formats contained on the Forms and Templates page provided on the SER. Projects off the State Highway System (local assistance projects) are not required to use the recommended formats; however, following them expedites the review and approval processes and concurrence by reviewing agencies.
The SER, Volume 1, Chapter 1, introduces federal laws, Executive Orders, and regulations applicable to transportation projects. The SER, Volume 1, Chapter 2, addresses the requirements of California law and regulations, the California Environmental Quality Act (CEQA) and its guidelines, as well as related state environmental statutes and regulations. Volume 2 of the SER is designed for cultural resources specialists.
The SER, Volume 3, Biological Resources, addresses general issues related to biological resource management, such as:
- Complying with federal and state environmental laws;
- Describing the existing biological environment;
- How project alternatives affect that environment;
- General procedures that should be implemented by the District Biologist when dealing with wetland effects;
- Summation of the laws, documentation, and processing requirements of the Federal and State Endangered Species Acts;
- Biological habitat mitigation and monitoring.
Volume 3 of the SER, and in particular, Chapter 3, Waters of the U.S. and the State, should be used in conjunction with other project planning and development guidelines and references, including Volume 1 of the SER.
|U.S. Army Corps of Engineers
|Clean Water Act (CWA), Section 404||Regulates placement of dredged or fill material into waters of the U.S., including wetlands|
|Rivers and Harbors Act of 1899, Section 10||Regulates work in navigable waters of the U.S., authorizes construction, dumping, and dredging permits|
|National Environmental Policy Act (NEPA)||Cooperating Agency|
|U.S. Environmental Protection Agency
|CWA||Enforcement of regulations; may enforce violations of USACE 404 permits|
|U.S. Fish and Wildlife Service
|Fish and Wildlife Coordination Act||Reviews/comments on federal actions that affect wetland/waters, including Section 404 permit applications|
|Federal Endangered Species Act (FESA)||Lead federal agency must consult with USFWS if listed species or habitat is present on site|
|National Marine Fisheries Service
|Fish and Wildlife Coordination Act||Reviews/comments on federal actions that affect coastal waters, including Section 404 permit applications|
|FESA||Lead federal agency must consult with NMFS if listed marine species or habitat is present on site|
|U.S. Coast Guard
|Rivers and Harbors Act of 1899, Section 9||Approves the location and plans of bridges and causeways across navigable waters by authorizing a Bridge permit|
|Natural Resources Conservation Service
|Food Security Act of 1985 (Swampbuster)||Approves wetland/waters determinations on agricultural land|
|California Department of Fish and Wildlife
|California Fish and Game Code, Sections 1600-1607||Regulates activities resulting in alteration of streams and lakes including stream banks (Streambed Alteration Agreement)|
|California Endangered Species Act (CESA)||Issues Incidental Take Permits (ITP) under Fish and Game Code, Section 2081(b), if listed species are located in the BSA|
|CEQA||Responsible or Trustee Agency|
|Regional Water Quality Control Board
|CWA, Section 401||Proposed fill in wetlands/waters requires coordination with the appropriate RWQCB that administers Section 401 and provides Water Quality Certification|
|CWA, Section 402||Issues National Pollutant Discharge Elimination System (NPDES) permit|
|CEQA||Responsible or Trustee Agency|
|California Coastal Commission
|California Coastal Act of 1976||Issues all coastal development permits
Provisions and Procedures
|Coastal Zone Management Act of 1972 (as amended through the Coastal Zone Protection Act of 1996)||Issues notice that work is consistent with state coastal management plan|
|CEQA||Responsible or Trustee Agency|
|San Francisco Bay Conservation and Development Commission
|McAteer-Petris Act of 1965||Regulates work within the bay, certain creeks, and a shoreline band of 100 feet inland from line of highest tidal action
Projects that require BCDC permits often must receive authorization from the RWQCB and USACE
|Coastal Zone Management Act of 1972 (as amended through the Coastal Zone Protection Act of 1996)||Issues federal consistency determinations under the Coastal Zone Management Act|
|CEQA||Responsible or Trustee Agency|
|State Lands Commission
|Public Trust Doctrine||Protects publicly owned property rights in the navigable waters of the state. The Commission manages the use of the state owned wetland/waters through leases to other public agencies and private parties.|
|CEQA||Responsible or Trustee Agency|
See also SER Volume 3, Chapter 3, Section 3-6.1.
Because of the complexity of wetland/waters issues and range of regulatory requirements, it is important to identify potential effects to waters of the U.S. and the state (waters) as early in the environmental process as possible. Early notification to the Project Manager allows time for investigation of design modifications to avoid or minimize potential effects to waters. If effects cannot be avoided, and have been reduced to the minimum level practicable, wetland/waters mitigation proposals to compensate for those effects must be developed by the District Biologist and others on the Project Development Team (PDT), and evaluated as part of the environmental impact analysis process.
The Department considers the early coordination process to be a valuable tool in determining the scope of issues to be addressed and in identifying and focusing on the proposed actions important issues. This process normally entails the exchange of information with appropriate federal, state and local agencies, and the public, from inception of the proposed action to preparation of the environmental document or to completion of environmental studies.
The District Biologist is encouraged to contact the USACE early for proposed work in waters in the project area. USACE Exemptions, Nationwide, Regional, and Individual permit requirements should be reviewed for determination of applicability to the project. By discussing all information prior to application submittal, the application will be processed more efficiently. Additional information on pre-application consultation is available online from USACE and the SER, Volume 3, Chapter 3, Waters of the U.S. and State. An official determination as to the need for a USACE permit will be provided upon request.
For Local Assistance Projects, local agencies should refer to the Local Assistance Procedures Manual (LAPM), Chapter 6, Section 6.4 prior to commencing with required technical studies. The local agency should request the District Local Assistance Engineers (DLAE) to schedule a field review or coordination meeting, as appropriate, to discuss the scope, and required format and content of the technical study.
Early stage planning meetings allow for full discussion of project alternatives to avoid waters. These alternatives may need to be discussed in the environmental document. If wetland/waters effects cannot be avoided, all practicable measures to minimize harm must be included in a Wetlands Only Practicable Alternative Finding (WOPAF).
Refer to Executive Order 11990, FHWA guidance, and SER Volume 3, Chapter 3, Waters of the U.S. and the State for additional information concerning the WOPAF.
USACE standard permits (Individual or Letter of Permission) also require an alternative analysis pursuant to Section 404(b)(1) of the Clean Water Act. The Section 404(b)(1) guidelines allow the discharge of dredged or fill material into the aquatic system only if there is no practicable alternative which would have less adverse affects.
The Department has implemented early coordination with the state and federal agencies involved in the wetland/waters regulation process. The Department signed a Memorandum of Understanding (MOU) with the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), U.S. EPA, USACE, USFWS, and NOAA Fisheries entitled the National Environmental Policy Act and Clean Water Act Section 404 Integration Process for Federal-aid Surface Transportation Projects in California (NEPA/404 Integration MOU). This NEPA/404 Integration MOU merges the National Environmental Policy Act (NEPA) and Clean Water Act (CWA) Section 404 processes. It applies to Federal-aid surface transportation project with affects to waters of the U.S. and that require a NEPA Environmental Impact Statement (EIS).
The consolidation of these processes provides for more timely decision making while improving the overall quality of those decisions. The goal of this MOU is to foster agreement among the Signatory Agencies, and to make it possible for the USACE to more efficiently adopt the Department's EIS. Under the stipulations of the MOU, the transportation agencies agree to document wetlands and sensitive species, and to consider avoidance alternatives at early stages in the process. The resource and regulatory agencies agree to participate in systems planning, project programming and project development stages. The NEPA/404 Integration MOU commits these agencies to ensuring the earliest possible consideration of environmental concerns pertaining to wetlands and waters of the U.S.
The NEPA/404 Integration MOU process must be followed if effects to waters of the U.S. meet the current MOU threshold for applicability. These thresholds are:
- The project is a Federal-aid surface transportation project,
- The project has five or more acres of permanent impact to waters of the U.S., and
- An Environmental Impact Statement is being prepared for the project.
For purposes of evaluating whether this threshold will be met, possible growth-related effects will not be included. If all the Signatory Agencies agree, the integration process may be applied to other projects. A project to which this MOU applies is referred to as an "NEPA/404 Integration MOU Project."
In consultation with one another, the Department will identify projects that meet the threshold, or that are otherwise recommended for the process, and notify the Signatory Agencies. Any Signatory Agency may raise concerns about the decision. Once a concern is raised, the Department will consult with all Signatory Agencies about the appropriate course of action. The Department, as assigned by FHWA, will make the final decision as to whether or not a project is an Integration Project.
At a minimum, the early coordination meeting shall:
- Determine if wetland/waters are present within the BSA by undertaking the wetland/waters delineation and assessment process conducted by a qualified Biologist. The Department recognizes the joint definition of waters and wetlands issued by USACE and EPA.
- Determine the jurisdictional boundaries of wetland/waters affected by the project.
- Determine acreage of wetland/waters affected by project.
If resources will be affected by the project:
- Undertake a Wetland/Waters Evaluation in accordance with the state and current USACE guidelines.
- If the project is a local assistance project, refer to the Local Assistance Procedures Manual (LAPM), Chapter 6. The LAPM Forms, Exhibit 6-A, the Preliminary Environmental Study (PES) Form, and Exhibit 6-B, Step 10 through 18, Instructions for Completing the Preliminary Environmental Study (PES) Form, provide a complete and sufficient checklist.
- Prepare the Wetland/Waters Evaluation consistent with the format and content prescribed in the LAPM, Chapter 6, and the SER, Volume 3, Chapter 3, Waters of the U.S. and State for a complete and sufficient checklist.
- Summarize the results of the Wetland/Waters Evaluation in the appropriate Environmental Document. Refer to the guidance document Quality Control and Assurance for Biological Technical Documents, which provides document preparation requirements, quality control and assurance procedures, criteria of what is to be included in a final draft, along with the independent peer review process and correspondence procedures.
- Prepare a public notice and invite public comment.
- The SER, Volume 3, Chapter 3, Waters of the U.S. and State provides general procedures that should be implemented by the District Biologist when dealing with wetland/waters effects.
If the proposed action will require construction in wetlands or waters:
- Prepare the formal "Wetlands Only Practicable Alternative Finding" in accordance with LAPM and Volume 3, Chapter 3, Waters of the U.S. and the State.
- The Local agency shall provide the District Local Assistance Engineer (DLAE) with three (3) complete electronic copies of the Wetland Study (Technical Report) and three (3) electronic copies of the Environmental Document containing a summary of the Wetland Study.
- The District Biologist prepares the finding for the Environmental Document.
- Document agency coordination, including the NEPA/404 integration process and include copies of the correspondence.
See also SER Volume 1, Chapter 38
NEPA Assignment authorizes the Department to make wetlands and other waters of the U.S. findings. California participated in the Surface Transportation Project Delivery Pilot Program under Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) from 2005 to 2012. With the enactment of MAP-21 in 2012, the Project Delivery Pilot Program was made permanent. The Department's original application, and a Memorandum of Understanding between the Department and FHWA, identify the Department's and FHWA's roles and responsibilities under NEPA Assignment. Under NEPA Assignment, FHWA assigned and the Department assumed all of the Department of Transportation (USDOT) Secretary's responsibilities under NEPA. The Department has also assumed the USDOT Secretary's responsibilities for environmental review, interagency consultation, and regulatory compliance for the review and/or approval of projects. The Department has assumed responsibilities for the federal environmental laws listed in Section 3.2 of the Pilot Program MOU (see also Appendix B of the 23 USC 326 CE Assignment MOU). The Department is responsible for complying with the requirements of all applicable environmental laws and regulations regardless of its inclusion on the list of FHWA assigned responsibilities.
See also SER Volume 3, Chapter 3, Section 3-8.
A Wetlands/Waters Delineation Report and Wetlands/Waters Assessment are prepared for all projects where waters or wetlands may be affected.
Wetland Delineation identifies wetland/waters under USACE jurisdiction for purposes of Section 404 of the CWA. This process is described in more detail on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-7.
The USACE will make the final determination of jurisdiction when the delineation is submitted for their review and approval. An approved jurisdictional determination (JD) is an official USACE determination that jurisdictional waters of the United States, or navigable waters of the United States, or both, are either present or absent on a particular site. An approved JD precisely identifies the limits of those waters in the biological study area determined to be jurisdictional under the CWA and Rivers and Harbors Act (See 33 CFR 331.2.)
The Wetlands/Waters Assessment is a report that includes the results of the wetland delineation and an analysis of effects with respect to the proposed loss of wetland/waters functions and values. Proposed mitigation or compensation actions are also included in the assessment. The Assessment is described in more detail on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-8.
The District Biologist should refer to local USACE District guidance on preparation of wetland delineations, processes, and reporting procedures (see USACE links provided below).
A qualified Biologist, with successful completion of a training course covering all USACE wetland regulations, methodologies, and requirements, must delineate wetlands, and other waters of the U.S. Biologists who do not have the appropriate training need to be supervised by a qualified District Biologist when delineating these resources. Persons preparing Wetland/Waters Assessments should have, at a minimum, the equivalent of a state civil service classification of Environmental Planner (Natural Science). Refer to the Department's guidance document Quality Control and Assurance for Biological Technical Documents for additional information for wetland/waters quality control and assurance procedures.
Where specialized studies are required, the preparer must have additional qualifications necessary to perform the required studies. Specialized surveys required for wetlands/waters technical reports may require special training, permits, or approval from the USFWS or NOAA Fisheries, and/or the CDFW.
The District Biologist takes site information and background materials to prepare what is commonly referred to as a Wetland Delineation Report, or more accurately referred to as the Wetlands/Waters Delineation and Assessment Report, which also covers wetlands and other waters of the U.S. Further information regarding wetland delineations and report preparation is available for reference on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-7, as well as your local USACE office's website.
Wetland delineations should be conducted following the procedures described in the 1987 USACE Wetland Delineation Manual (Environmental Laboratory 1987) and either the Arid West Region (USACE 2008) or Western Mountains, Valleys, and Coast Region (USACE 2010) Regional Supplements to the Corps of Engineers Delineation Manual. The USACE publishes guidance regarding the standard procedures required to delineate wetlands and other waters of the U.S. that may be under USACE jurisdiction (Env. Lab. 1987). Refer to the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-7 and Section 3-8 for further information regarding wetland delineations.
The USACE Districts each have specific requirements for wetland/waters delineation reports.
A Wetland Delineation and Assessment Report format is also provided on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-9.
The Wetlands/Waters Assessment is summarized in the Natural Environment Study (NES). For projects involving more than minor effects, the Assessment is usually developed through coordination with regulatory agencies to identify resource issues, ways to avoid or minimize effects, and to develop appropriate mitigation measures.
As part of the Department's continuing effort to streamline the environmental process and facilitate development of well crafted, high quality environmental documents and technical reports, the Department has adopted quality control standards. The guidance document Quality Control and Assurance for Biological Technical Documents contains guidelines to help facilitate and streamline reviews of Department biological technical studies. The quality control process will be documented and available in the project file for review.
Format and content are covered on the SER, Volume 3, Chapter 3, Waters of the U.S. and the State, Section 3-9, and you may refer to your agency’s project files for examples of previously approved wetlands/waters assessments. Be sure to determine if the local USACE District has specific requirements for the assessment.
NEPA and CEQA require that the direct, indirect, and cumulative effects of proposed actions be assessed and disclosed. Although NEPA and CEQA define the terms similarly, their definitions are slightly different. For NEPA definitions of direct, in-direct, and cumulative effects, refer to the SER, Volume 3, Chapter 2, Natural Environmental Study, Section 2-3.2. For CEQA definitions refer to the Guidance for Preparers of Growth-related, Indirect Impact Analysis on the SER.
This information should be documented in the Environmental Impact Report prepared for the Regional Transportation Plan and serve as a building block in subsequent decision making.
Regional Transportation Planning Agencies (RTPA's) within the State of California produce Regional Transportation Plans and receive and allocate transportation funds. Councils of Government, Transportation Commissions, and Metropolitan Planning Organizations (MPO) can all be designated RTPA's. MPO's are designated by the Governor as a forum for cooperative transportation decision making for the metropolitan planning area. Federal provision requires an MPO in urbanized areas.
A Regional Transportation Plan (RTP) requires the preparation of a CEQA environmental document, normally a program or master Environmental Impact Report. The Department encourages the MPO and RTPA to include the following information, as appropriate, in the environmental document for the plan:
- Statement of purpose and need for project, at a level of detail appropriate for the corridor or subarea stage of project development;
- Verification of concurrence by the NEPA/404 Integration MOU signatories on the RTP statement of purpose and need;
- Location of any previously delineated jurisdictional wetlands/waters in corridor or study area (displayed on USGS quad 7.5' or 15');
- Presence of "waters of the U.S." in the BSA; and,
- Identification of possible future disposal areas in corridor or biological study area, if appropriate (for subsequent Section 404 permit).
This information should be included in the Preliminary Environmental Analysis Report (PEAR) prepared as part of the Project Initiation Document (PID). Refer to Chapter 9 of the Project Development Procedures Manual (PDPM) and the SER Volume 1, Chapter 4 for detailed discussions of the PID.
The "Guidelines for the Preparation of Project Study Reports" dated December 8, 1999 stipulate that Project Study Reports (PSR) and project study report equivalents contain an inventory of environmental resources, identification of potential environmental issues, and anticipated environmental processing type. Potential mitigation requirements and associated costs should also be identified.
For projects off the State Highway System, the DLAE completes the Preliminary Environmental Study (PES) form (PDF) (2.18 MB). The PES is the initial step in the federal environmental process for projects off the State Highway System, and is required for all local assistance projects. The PES will provide the information required to determine the studies to be performed and the recommended level of NEPA documentation (Categorical Exclusion, Environmental Assessment, or Environmental Impact Statement). The purpose of the PES is to determine the potential presence of sensitive environmental resources within the BSA. A complete and signed PES form is required for all projects.
The PES form is located in the LAPM, Chapter 6, Exhibit A (PDF) (2.18 MB). Instructions for completing the PES can be found in Exhibit B (PDF) (477 KB). The information required for the PES satisfies the environmental requirement for the Project Study Report (PSR) equivalent.
For projects on the State Highway System, the following level of information is recommended to fulfill the requirements of the guidelines:
- Verification of all information from RTP stage;
- Location and size of any previously delineated jurisdictional wetlands, or other waters within the BSA
- Location of wetland and upland vegetative communities within the BSA;
- Functions and values of compensatory mitigation, if appropriate; and,
- Concurrence on programming level project statement of purpose and need and range of alternatives to be studied in the NEPA document by the NEPA/404 Integration MOU signatories, as applicable.
This information should be presented in the Draft Environmental Document or used as supporting documentation for a Categorical Exclusion/Exemption, as appropriate.
Verify all information from RTP stage and PID stage, and:
- Concurrence on project purpose and need and alternatives by NEPA/404 Integration MOU signatories, when applicable;
- Delineate type, quality, functions and values of wetlands, or other waters within the BSA;
- Description of project effects on aquatic resources and their functions and values;
- Analysis of effects of project alternatives;
- Feasibility analysis of potential compensatory mitigation sites; and,
- Draft 404(b)(1) with preliminary identification of Least Environmentally Damaging Practicable Alternative (LEDPA), when applicable.
Under a separate subheading, a Wetlands Only Practicable Alternative Finding, which references Executive Order 11990. Explain why there are no practicable avoidance alternatives and discuss inclusion of all practicable measures to minimize harm. Include boilerplate language for the conclusion and discuss the least environmentally damaging practicable alternative (LEDPA) and the rationale used for its identification.
If there are permanent effects to wetlands, include the following information in the Final Environmental Document:
- Wetlands Only Practicable Alternative Finding (WOPAF);
- Least Environmentally Damaging Practicable Alternative (LEDPA), when applicable;
- Detailed description of mitigation measures for wetlands, or other waters, resources, and associated sensitive species;
- Final feasibility study of compensatory mitigation sites, if appropriate; and,
- Cost estimates for mitigation measures
For the final environmental document, the District Biologist will refer to the SER, Forms and Templates, Environmental Document Review Checklist for major required content per the annotated outline provided.
- California Department of Fish and Wildlife: 1602 Permit, Streambed Alteration Agreement
- California Coastal Commission: Coastal Development Permit
- Regional Water Quality Control Board: CWA, Section 401 permit; National Pollutant Discharge Elimination system (NPDES) permit
- San Francisco Bay Conservation and Development Commission: Development Permits: Abbreviated Regionwide Permit, Regionwide, Administrative, Major Permit, and Joint Aquatic Resource Permit Application (JARPA)
- Tahoe Regional Planning Agency (TRPA): Project Permit affecting the Lake Tahoe Watershed.
The District Biologist is often requested to participate in the pre-construction meeting to clarify biological issues and constraints for the Resident Engineer (RE) and staff and to ensure the contractor's consideration of biological issues during construction. A major role of the District Biologist during construction is to be available for consultation. The District Biologist may be requested to field review a project when a change order that will modify the effects on resources is being considered, or when there is a resource identified that was overlooked during environmental review.
The responsibilities of the District Biologist during construction can range from occasional consultation to daily monitoring. Permits issued by USACE and other permitting agencies may require regular or periodic monitoring of construction activities by the District Biologist if sensitive resources are involved. In some cases, the District Biologist may be required to oversee the construction phase of a mitigation site.
The RE has the ultimate responsibility for the construction site and for ensuring the contractor's compliance with applicable laws, permits, contract plans, and specifications. Authority for directing the contractor's work must be delegated to the District Biologist by the RE.
The District and Local Agency Biologists are responsible for following quality control (QC) and assurance (QA) procedures (QA/QC) when writing technical documents such as a Wetlands/Waters Delineation/Assessment Report. Department biological technical documents, and those authorized under the Federal-aid Local Assistance Program, provide natural resource information and analysis for PDT decisions, environmental document preparation, public input, as well as permits, licenses, agreements or certifications. Careful, consistent and concise quality control and assurance procedures allow the Department to effectively provide information and respond to public or agency inquiries regarding compliance with policies and regulations, as well as federal environmental responsibilities and consultations assumed pursuant to 23 USC 326 and 23 USC 327. Currently there is no standard template for a Wetlands/Waters Delineation/Assessment Report on the SER.
The District Biologist (an Associate Environmental Planner, Natural Science (AEPNS) or Senior Environmental Planner with previous AEPNS or equivalent experience) will prepare biological technical documents. District Biologists who are Environmental Planners, Natural Science (EPNS) demonstrating sufficient knowledge, skills, and experience for specific projects may prepare these documents at management's discretion. Consultant Biologists may also be approved to prepare documents under the guidance of the District Biologist where they have comparable knowledge, skills and experience to that of an AEPNS in state service with a minimum of three years professional biological environmental assessment experience. For example, conducting field surveys, preparing biological reports for environmental documents, delineating wetlands, and endangered species consultations.
The Environmental Document Review Checklist offers an environmental document preparation and review tool that provides the Biologist with the major required content of wetland/waters considerations.
See also Quality Control and Assurance for Biological Technical Documents on the SER, Forms and Templates page.
For additional information concerning the responsibilities of the District Biologist, the definition of waters of the U.S. and state, including wetlands, how and why these resources are regulated, and the general procedures that should be implemented by the Biologist when dealing with effects to these resources, refer to Volume 3, Chapter 3, Waters of the U.S. and the State.
(Last content update: 08/26/2014, JH)